2011-2021: Revolution, Constitution, Elections… Ten years later, where is Tunisia at? 

Ten years after, defending women’s and minorities rights

Synthesis of the second panel of the 20th of January 2022 workshop day 

By Victor Lachenait, Juliette Denis-Senez and Elyssa Koepp

Within the framework of the conference ”Ten years after, defending women’s and minorities rights, we were honored to welcome Ms. Bochra Belhaj Hmida (Tunisian lawyer and politician), Ms. Bochra Triki (executive director of the association Chouf), Ms. Nedra Ben Smail (psychiatrist and author) and Ms. Sana Ben Achour (Lawyer and activist).

Bochra Belhaj Hmida 

She is a Tunisian lawyer and politician, and the former MP and chair of the Commission for Individual Liberties and Equality. In her opening statement, she paints a positive picture of the success of the plight for women’s rights in Tunisia since the fall of the ancient regime in 2011. She starts by retracing the greatest obstacles to the preservation and enactment of women’s rights during the revolution. The overthrow of the old regime, a dictatorship in nature, but a state that she describes as “a feminist state even in its darkest moments of democracy“, embodied a vulnerable political transition that could have triggered a loss of protection of the rights of women acquired under Bourguiba and preserved under Ben Ali. 

For Bochra, the strength of civil society during these pivotal years is what shaped a positive future for women’s rights in the system that emerged from the ashes of the Arab Spring: “Civil society was very mobilized because there was this fear of losing what we had already gained. Today, after 10 years, we can strongly assert that not only have the gains been preserved, but we have also won many more battles“. Among the battles won she includes the organic law combating gender instigated violence, the abolition of the law prohibiting the marriage of Tunisian women to non-Muslims and the right of mothers to travel and give their children a passport without the authorization of the father. Bochra Belhaj Hmida also describes a shift in responsibility born out of a rapid rise of civil society activism. It is no longer solely the state that is the only responsible entity for the preservation of women’s rights, but the whole Tunisian society that now carries the burden of responsibility for enhancing equality in all realms. Thus, today, “even if at the head of the State we notice the total absence of commitment to the upkeep of the debate around women’s rights, this does not prevent that the rights of women are no longer threatened“. 

On the issue of individual freedoms, Bochra Belhaj Hmida explains that since the revolution, the biggest accomplishment has been social rather than political or judicial. The rights of sexual minorities are no longer taboo and have entered the realm of public discussions, but unfortunately, there has not yet been a real transition within the laws or justice system. In fact, conversion therapy and anal testing for proof of sodomy are still active practices. Despite a complicated situation today with a State that is incapable of  “proposing anything for women’s rights and unable to even apply the laws that are already there“, her assessment remains positive. Indeed, Bochra concludes by stating that the element of fear is now behind us: “Despite everything that happens in politics, women have shown themselves to be strong, and the Tunisian civil society, despite all of its difficulties and divisions, has never been as vigilant as it has been after the revolution. […] Although there are many things to be done in terms of individual freedoms and equality, what is certain is that there will be no more backtracking […] Tunisian women, citizens and individuals will continue to win battles.

Bochra Triki 

She is a French teacher, a cultural operator and the executive director of the association Chouf. Through a more personal perspective drawing from her own experience in the activist sphere after the Arab Spring, she provides an overview of what the feminist and queer struggle in Tunisia is today. Bochra talks about the structuring of feminist and queer initiatives after 2011. During a period marked by an “explosion of possibilities” and under the pressures of a “tsunami of fundings“, Bochra describes the main obstacles such a transition meant for activists on the ground. Following the fall of the regime in 2011, people “finally had the right to dream and to make some of them come true“. These dreams materialized into different collectives, associations, and organizations. 

An important element that was neglected in this transformation of civil society: grassroot activism, or informal activism outside of external funding. The activism attached to the influx of funds created projects “based on the checkboxes suggested by the funders […] or because the funds demanded it.” In contrast, grassroots activism, for Bochra, “is fueled solely by the desire to get closer to the utopia of social justice and freedom, and to dispose of one’s body and soul”. For her, this drawback is not the responsibility of civil society. In fact, in a time of such uncertainty, she says “it would have been foolish to say no to all these possibilities, especially in 2011 when we had no idea how long this funding and this possibility would remain“. 

From here she recalls the period of 1987-1988 which saw the birth of the DFA and a window of opportunity for an active civil society: a short lived period quickly followed with close to 23 years of repression shattered only by the uprisings of 2011. Thus, the reasoning of the activists during the period after 2011 can be summed up as: “act quickly, take what is available to us now, and assess the consequences at a later date“. Within this explosion of civil society actors, Bochra also describes the widening gap between the established institutions and the new initiatives from the post-2011 era. Among the causes, she highlights a generational conflict, as well as “the lack of understanding and a feeling of being overwhelmed [by] new forms and subjects of activism“, such as queer activism in Tunisia. In 2015-2016, coinciding with a wave of arrests, there seemed to be a reversal of this mentality and a rise in solidarity that elevated these initiatives into strong political forces, no longer isolated and closed off to other civil initiatives. 

Today, the dynamic of solidarity is beginning to crumble due to activism burnout, internal tensions within the collectives, and most importantly, policies and politics that do not seem to change: “The government has built a wall in front of activists [and] a gap has emerged between the institutionalized form of struggle and the needs and interests of a new generation”. The consequence of these conflicting dynamics: a new generation of social activism leaning closer and closer to the overlooked form of grassroot activism in the initial phase of opening. 

Bochra ends her speech by underlining the importance of intersectionality, which for her, “carries one of the most accurate discourses in terms of the concordance of struggles” something “that we have been learning about for years without necessarily knowing how to actively apply“. The question that remains today: how to learn and benefit from a transmission of the experiences of activist struggles, successes and failures?

Nedra Ben Smail

She is a psychiatrist and the co-founder and president of AFPEC, the Tunisian association of psychoanalysis. She is also the author of different books such as ‘Virginity: the new sexuality of Tunisian women’, and more recently ‘Abandoned youth; violence and jihadism’. Nedra addresses the association between women’s bodies, sexuality and the revolutionary movement through a psychoanalytic lense. For her, “the question of democracy is played out on women’s bodies who often pay a high price for it“. The taboo of virginity – the right or not right to love or have sexual relations outside the bonds of marriage – serves as “a real anthropological marker […] from which [we] can understand what the collective is made of […] how the relationship between sexes is organized, and more broadly, the relationship of society to the prohibitions that govern each person’s ideals”. 

In spite of the retardation of the average age of marriage for women in Tunisia, today at almost 30 years old, the matrimonial institution remains well anchored in Tunisian society. Nedra explains the conflict between two contrasting normativities; “a society that is transformed with globalized practices” and “a conservative tradition that opposes this transformation.” To illustrate this phenomenon, she talks about the surgical repair of the hymen, which she depicts as the process of ‘revirginization’. According to Nedra, this act “is situated at the crossroad of the social body, which prohibits it, and the personal body which is that of women“. This constitutes the “identity tension that every Tunisian woman lives in her flesh“, giving sexuality both a political and religious connotation. 

She then describes her conversations with Nour, a young girl from a conservative family who decides to organize her defloration on Facebook at the age of 17. For Nour, “abusing her body -a body in which she feels trapped- and by offering to a stranger her hymen which is fetishized by society and culture”, Nour feels like she is bringing down the system. Nedra describes this act as taking on “the value of a murder, not only of the hymen, but also of the patriarchy that demands her virginity”, shatteringa system of societal control on the body and sexuality.Nedra then recalls the story of the femen Amina, who in 2011 posted a photo of herself on Facebook, bare chest, cigarette in the mouth, with red lipstick, and a message written in Arabic stating ‘my body belongs to me‘. This act highlights the “alliance between the body, sex and blood, by the presence of lipstick” and claims “a new relationship between Tunisian women and society”

Nedra’s speech thus describes the emergence of sexuality in Tunisia, the societal transformations since 2011, and the new ways women have opted to circumvent tradition.

Sana Ben Achour 

She is a lawyer specializing in public rights, a Tunisian activist and president of the Beity association. She shares both Nedra’s idea “that the social norms carried by the law concern the bodies of women” and the words of Bochra Belhaj Hmida and Bochra Triki concerning the victories with regard to women’s rights, yet remains cautious about the fragility of these achievements. “Many things have been achieved, many things remain to be done, but the threat is permanent on women’s rights: rights have been obtained but never equality”. Sana finally describes the path of Tunisia towards the constitutionalization of women’s rights: “equality without discrimination […] this is the essence of the Constitution since 2011, article 46“. According to Sana, there is uncertainty about the possible reintroduction of fundamental feminist rights into a new constitution. 

Sana defines feminism as a way “to be together in our diversities, our diverse backgrounds and paths […] to be able to build together the political tools to pour into the public space in order to achieve social change.” She offers here a jurist’s point of view on the ambivalence of the legal system in Muslim countries “where the legal rule is never sufficient in itself but must be legitimized by a religious discourse. It is not independent and has no force in itself [but] remains dependent on its compatibility with the religious rule, and this is why the debate on women is very quickly pulled back into a debate on charaic or religious law”

This ambivalence is reflected in Tunisian society through a contradiction between rights in the public and private spheres: “rights in the public space remain limited by the few rights that women have in the private space”, a major obstacle to gender equality in Tunisia. Sana concludes that the reality remains the same today as it did in 2011: “the personal status code and the penal code remain the glass ceiling of Tunisian women and all sexual minorities” constituting the basis of the obstacles to come.

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2011-2021: Revolution, Constitution, Elections… Ten years later, where is Tunisia at? 

Economic prospects in Tunisia

Synthesis of the second panel of the 20th of January 2022 workshop day 

By Victor Lachenait, Juliette Denis-Senez and Elyssa Koepp

Within the framework of the conference ”Economic prospects in Tunisia”, we were honored to welcome Mr. Abderrazzak Zouari (former Minister of Development of Tunisia) and Ms. Leila Baghdadi (professor of economics).

Abderrazzak Zouari

For Abderrazzak Zouari, Tunisia represents a textbook case in terms of economic difficulties. The 2011 revolution has changed many things, and while under the dictatorial regime of Ben Ali, the growth rate of the economy stood at 5% with low volatility, since the revolution, the average growth rate has been closer to 1%. For Mr. Zouari, this poses a problem regarding the legitimacy of the revolution and the perception people have of the achievements that have come from overthrowing the dictatorship. If the economic results do not follow, this may in time undermine the gains from the Arab Spring in terms of civil liberties and freedoms.

The instability and weakening growth performance of the Tunisian economy can be explained by low investment rates, inefficient existing investments, a lack of economic attractiveness, as well as the lack of global productivity in the factors proven to be an important source of growth. Mr. Zouari highlights several figures to illustrate this point, like a suffering Foreign Direct Investment (FDI), representing 4.2% of GDP between 2000 and 2010 and now representing only 2.3% of GDP. Coupled by a weakness in employment, there does not seem to be a correlation between growth and job creation in Tunisia. According to Mr. Zouari, it has always been said that 1% growth in Tunisia creates 15,000 jobs, so before the revolution, the 5% growth rate was enough to provide employment for 90% of the labor force. However, since the revolution, despite a low population growth which has reduced the number of people entering the labor market, the low number of employment opportunities has drastically increased the unemployment rate. Today, with the lack of job creation, the unemployment rate is currently above 18%, and the COVID crisis has only accelerated the process.

The Tunisian labor market is thus characterized by a declining labor supply with insufficient and low quality employment offers to meet the rising employment demand of a skilled labor force.

For Mr. Zouari, the decline in growth predates the revolution, as it dates back to the 2008 financial crisis. Since then, economic growth has declined to 3%. The production model of the Tunisian economy seems to have run out of fuel and failed to enact efficient reforms. Tunisia’s economy continues to be based on manufacturing industries like textiles and electrical engineering that have been proven unsuccessful for several years now. Job opportunities in these industries are also of low quality, despite the fact that the university system produces close to 70,000 higher education graduates every year. Tunisia has thus failed to transform its economy in the early 2000s to move towards innovative sectors with high added value that could absorb the high number of graduates from higher education. Hence, Mr. Zouari describes the crisis as structural in form.

Companies in Tunisia are small: with 740,000 companies officially declared, 95% are micro-enterprises with less than 5 employees. As a result, 90% of Tunisian companies generate only 12% of the jobs created. The country is facing a massive unemployment of graduates of higher education fluctuating between 30 and 35% and is simultaneously witnessing a shortage of low-skilled workers. For Mr. Zouari, Tunisia is a country of emigration of graduates of higher education, but immigration of low-skilled labor, filling many low-skilled jobs with immigrants from sub-Saharan Africa. Thus, there is a lack of innovation and a serious problem of unemployment. 

Looking at these obstacles under one single angle, the country is therefore facing serious financial imbalances. In the state budget, Tunisia will need 5.5 billion dinars in domestic borrowing and 13 billion dinars in external borrowing to meet its 18.5 billion annual budget in 2022. Furthermore, the trade deficit in 2021 was close to 14.5 billion. While the inflation rate stands at 6.4%, it is felt at 29% on food products putting pressure on the purchasing power of the Tunisian population.

For Mr. Zouari, there are thus 4 billion euros that must be borrowed from outside funding. This raises the question of Tunisia’s relationship with the IMF: the country cannot borrow, even from “friendly” countries like the Gulf States, without an agreement with the IMF. Hence, an agreement with the IMF is essential, and the only way to find money is implementing the reforms requested by the IMF.

Leila Baghdadi,

She shifts the focus of the discussion on the economic implications of the pandemic and  the catalyst role this crisis played in accelerating the economic instability of Tunisia.

The Covid-19 pandemic has highlighted the vulnerabilities of the Tunisian economy. In 2020, as a result of the curfews and barriers put in place by different countries, exports fell drastically by at least 12%. There has also been a significant decrease in recorded FDI, decreasing from 2742 million dinars in 2018 to 1834 million dinars in 2020. At the sectoral level, tourism and real estate have experienced the biggest drop, with a decrease of 89% in 2020 compared to 2019. Tourism, which had already been affected negatively by the revolution in 2011, was brought to a complete halt during the pandemic. Finally,  in 2020, the energy sector also witnessed a 32% drop in FDI.

According to Ms. Baghdadi, these consequences had a significant impact on the unemployment rate but impacted women more strongly than men, therefore further widening the gender gap. In fact, while the unemployment rate for men rose to 15.4%, it rose to 23.6% for women.

For Ms. Baghdadi, it is the manufacturing industry that serves as the engine of the Tunisian economy absorbing the majority of jobs and employees of the formal sector. Second, there are the services, with commerce representing 14% of jobs and then construction occupying 4% of formal jobs. In 2020, all of these sectors experienced a significant reduction in the number of jobs.

For businesses, 2020 was marked with a reduction in revenues, particularly for small and medium-sized enterprises in the service sectors which were more affected than others. It is also believed that there were a large number of business closures during the pandemic, so the issue of maintaining the industrial fabric is thus a major challenge for the future of the Tunisian economy.

Ms. Baghdadi also describes how with the pandemic, Tunisia has been confronted with the reality of its dependence on certain commodities. The most evident example here are the vaccines. According to Ms. Baghdadi, Tunisia is a vulnerable country largely dependent on Algeria for its extractive industries, leading to a sharp decline in imports in this sector during the pandemic. There are also important sectors such as equipment, machinery and electronic materials, transport or textiles, where Tunisia has integrated the global value chains since its opening in the 1970s, but which have led to an increase in imports on which Tunisia has become dependent. At the global level, Tunisia was one of the 10 countries most impacted in the world by the pandemic. However, the textile industry has been more resilient than others.

Thus, Ms. Baghdadi explains that Tunisia was vulnerable from the outset yet the pandemic exposed these difficulties emblematically, strongly impacting the country’s balance of payments. These vulnerabilities have had both direct and indirect impacts, most notably impacting the consumption of Tunisians. All sectors using the extractive industry as an intermediate consumption have been indirectly impacted. The externalities of these economic shifts during the pandemic can be felt on the rise in consumer prices. Research by Ms. Baghdadi and others shows that non-tariff measures and export restrictions by partner countries have strongly impacted both Tunisian imports and the country’s inflation rate. This has directly affected the daily lives of the Tunisian population concerned by the rising price of life, especially with regard to agricultural products and food.

Ms. Baghdadi concludes by highlighting the need for structural reforms in the Tunisian economy as soon as possible to face this continuing economic crisis worsened by the pandemic.

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2011-2021: Revolution, Constitution, Elections… Ten years later, where is Tunisia at?

Synthesis of the first panel of the 20th of January 2022 workshop day

By Victor Lachenait, Juliette Denis-Senez and Elyssa Koepp

The GI4T, in partnership with Johns Hopkins University (School of Advanced and International Studies; Bologna campus) and in collaboration with the Art Rue, organized a day of discussion dedicated to the assessment of the 10 year anniversary of the Tunisian Revolution and its prospects, especially post-July 25, 2021. This day was divided into 3 panels: one focusing on constitutional and political issues, the other on economic issues and finally the third on women and minority rights. 

Within the framework of the conference ”2011-2021: A Revolution, a Constitution, Elections … Ten years later, where is Tunisia?”, we were honored to welcome Ms. Salwa Hamrouni (professor of public law), Ms. Salsabil Klibi (professor of constitutional law) and Mr. Slim Laghmani (professor of constitutional law).

Hakim Ben Hammouda introduced the conference by recalling the objectives of the Global Institute for Transitions and the concept behind this day of discussion with students from the Bologna campus of the Johns Hopkins University.

Retrospectives on the 2019 elections and the referendum scheduled for July 2022 – Slim Laghmani: 

In order to understand the current political and constitutional situation, Slim Laghmani,  constitutional lawyer and author, recalled the crucial political context of the first presidential term from 2015 to 2019. Béji Caïd Essebsi, the first elected president of the post-revolution Tunisia, governed under a presidential coalition called Nidaa Tounes. His death on July 25th 2019 precipitated the presidential elections by a few months. At this point in time, Tunisian politics faces (i) early presidential elections followed by the scheduled parliamentary elections, (ii) the breakup of the Nidaa Tounes coalition and thus (iii) no front for the fall 2019 presidential and parliamentary elections. 

The former Nidaa Tounes coalition is fielding several potential candidates, and the Ennahda party is officially supporting its own candidate Abdelfattah Mourou. The 2019 presidential elections mark a turning point in Tunisian politics: the main traditional parties do not get past the first round. Indeed, the second round pits Nabil Karoui (Qalb Tounes) against Kaïs Saïed (independent). Here, Slim Laghmani points out that Kaïs Saïed presented himself as an almost unknown candidate who was highly mediatized since 2011 through his various appearances on broadcast news and his political activity marked by his opposition to the post-revolutionary process which he already considered to be at odds with the revolutionary movement. The Ennahda party bets on Kaïs Saïed success in the second round. The latter wins the election and, under article 76 of the constitution, takes an oath to ensure respect for the constitution and to represent the unity of the nation. At the same time, parliamentary activities are frozen due to the dispersal of the ranks of Nidaa Tounes, the creation of a new Troika (Ennahdha, al-Karama, Qalb Tounes) and the bipolarization of the Assembly between pro and anti-Islamists.

Given that the government legally emanates from the Parliament, the majority party (Ennahdha in this case) must then propose the head of government. However, given that its candidate did not win the confidence of the government, Kaïs Saïed, in accordance with the constitution, presented his own candidate Elyes Fakhfakh to become head of government. Yet, he quickly resigned after being legally prosecuted. The head of state then introduced Hichem Mechichi as prime minister, and the ministers who will accompany him. Slim Laghmani emphasizes that this candidate was the one who should carry the presidential project, but that the vote of confidence of September 2, 2020 relied on the votes of the new Troika, announcing for Kaïs Saïed a political betrayal.

Interpretations of the Constitution:

Kaïs Saïed’s mandate has been punctuated by interpretations of the 2014 Constitution.

1- On December 20, 2020, Kaïs Saïed announced that as head of state and therefore head of the armed forces, he is also head of the Interior ministry, since it has armed sections. Hichem Mechichi must therefore dismiss the Minister of the Interior on 5 January 2021.

2- On January 16, 2021, Hichem Mechichi wants to initiate a major ministerial reshuffle. Kaïs Saïed, who is opposed to it, is slow to receive the potential new ministers and considers that this reshuffle is not constitutional. He argues that (i) the head of state is not obliged to receive or appoint the ministers chosen by the head of government, (ii) a reshuffle is not necessarily subject to the confidence of Parliament (although this is the tradition since 2014) and (iii) some of the proposed potential ministers are corrupt. Thus, Hichem Mechichi refuses to put forward other candidates, dismisses the ministers in office and establishes an interim system to ensure the continuity of government activities. As an example, he himself assumed the position of Head of Government and Minister of the Interior.

3- On April 4, 2021, the Head of State refused to promulgate the draft organic law on the Constitutional Court, the objective of which was to make it possible to appoint constitutional judges and thus launch the activities of this institution. Kaïs Saïed considers that the Constitutional Court could only be created within the time limit set by the 2014 Constitution: as the one-year deadline has passed, he considers that there is no longer any possibility of electing a Constitutional Court.

4- On July 25, 2021, Kaïs Saïed declared a state of emergency by mobilizing the concept of “imminent danger”. As such, he suspended the activities of Parliament, removed parliamentary immunity and dissolved the government. According to Slim Laghmani, this is an interpretation of Article 80 of the Constitution, which however mentions that during a state of emergency, the Parliament must remain in permanent session.

5- By presidential decree, Kaïs Saïed grants himself legislative and executive powers as head of state.  Thus, he grants himself the right to legislate by referendum even though this clause is not provided for in the constitution, appoints all persons to head state bodies, prohibits recourse to the decree-laws that he promulgates, and maintains in force only the first two chapters of the constitution. The other chapters can therefore be modified or suspended by the head of state; in particular, he suspends the constitutional court project and announces that he is preparing, with the help of a committee, plans for reforms and a balance of powers. On November 18, 2021, he announced (i) an electronic consultation, currently underway, whose objective is to collect the grievances of the people and (ii) the lifting of certain laws, including Law 38 on the unemployed for more than ten years. 

Finally, on December 9, 2021, he announced that the 2014 Constitution can no longer function and lacks legitimacy. As such, he plans to hold a referendum on July 25, 2022, as well as legislative elections in November 2022.

Retrospective since 2011 – Salsabil Klibi

Salsabil Klibi insists on the need to look back at the democratic process started in 2011 to understand the current issues and possible ways forward.

The Tunisian particularity in the democratic transition

January 14, 2011 was the date of the escape of the head of state (Ben Ali): a symbolic date, but one that was not synonymous with the fall of the system. From January to March 2011, the fate of the 1959 Constitution was unclear: Salsabil Klibi emphasizes that a decision had to be made as to whether the democratic transition could take place within the framework of this constitution or whether it should emanate from a new text drafted by the revolutionaries. Initially, the choice was made to work within the legal framework of the 1959 constitution. Following multiple sit-ins in the Kasbah Square and popular mobilization, the government announced on March 13, 2011 the desire to create a new constituent assembly to draft a constitution detached from past authoritarian excesses. This democratic transition had the particularity of being framed and made dynamic by two ad-hoc bodies. The High Authority for the protection of the objectives of the Revolution which was in charge of revising all the texts related to freedoms and expression; the Higher Council of the democratic transition whose members, although they were not elected, were representative of the objectives of the Revolution because they emanated from the civil society in opposition and resistance to the regime of Ben Ali, and in particular from the great national institutions like the UGTT and the various regions. This body voted informally on draft laws and transferred them to the interim president, who could not oppose them in view of the legitimacy it had. Thus, bills were passed on the creation of an independent electoral administration to oversee the 2011 Constituent Assembly elections (still in effect to certify the transparency of the elections), on gender parity and on the new proportional representation voting system for the Constituent Assembly. The particularity of the Tunisian democratic transition lies in these legitimate institutions responsible for representing Tunisian diversity and implementing democratic transparency.

2014: an ambivalent constitution

The Ennahda party won the majority of seats in the constituent assembly: Salsabil Klibi nevertheless emphasizes the presence despite their splintering of “modernist” forces. However, the constitution could not represent Ennahdha’s interests alone because the large national organizations and associations acted as a counterweight. The 2014 constitution contains ambivalent and even contradictory measures, due to the fact that it was drafted by different political forces as well as by the pressure of popular mobilizations. As an example, Salsabil Klibi points out that “the street” won constitutional victories such as (i) not listing women as “complements of men” but as their equals and (ii) not listing sharia as a source of law in the constitution.

After July 25, 2021 – Salwa Hamrouni

Salwa Hamrouni highlights the ambivalence and contradictions of the constitution on many points to explain the critical attitude of jurists toward it.

Control of counter-powers

She points out that the proportional voting system determined for the constituent assembly was also maintained for the composition of the parliament. As such, this assembly benefits from a better representativeness but is also subject to instabilities and a tendency for politicians to shirk their responsibilities. Salwa Hamrouni also highlights the desire of political parties to take control of bodies initially designed to be counter-powers, such as the media or the national bodies that have worked for the democratic transition. Each new appointment at the head of these bodies gives way to a “war of the parties” who organize themselves to share out the various portfolios: thus, the games of alliance and influence of the political parties are also found in the bodies supposed to represent civil society in its broadest sense.

Conspicuous absence of a constitutional court

The absence of a Constitutional Court is an obstacle to the advent of democracy. Salwa Hamrouni recalls that the political figures in office since 2011 were fully aware of the deadlines imposed and the need to set up a Constitutional Court. The latter would have indeed allowed to supervise the various governmental actions, to manage the relations between the different powers, and thus to prevent the political crisis in which Tunisia is currently. 

The decree 117 announced by the head of state only mentions article 80 of the constitution, according to which the president has discretionary power in defining “danger”. As such, Kaïs Saïed applies it to internal dysfunctions and not to an external danger that could constitute an invasion or a natural disaster. He legitimizes this choice by the first two recitals of the decree dealing with the expression of the sovereignty of the people, which he considers impossible in the current political framework.

Article 3 of the Constitution provides for the possibility of resorting to referendums, within the framework of a preliminary consultation of the institutions. However, according to Kaïs Saïed, the 2014 Constitution no longer has legitimacy. The question of amending the Constitution then arises: to remain within the current legal framework and modify it from within, or to decide that it no longer has legitimacy and work “outside the framework”. If the contradiction of certain constitutional provisions raises questions, Salwa Hamrouni emphasizes that the legitimacy of the text cannot be questioned in view of the way it was drafted and adopted. The state of exception allows, by definition, the possibility of a change in the division of powers within the authorities. Article 22 provides that the head of state shall present his reform project with the help of a commission organized by presidential decree: thus, the commission must help to implement the presidential will by means of technical and legal tools as well as by the knowledge and know-how of its members. The objective of Kaïs Saïed is to reach a “true state of democracy”.

A political project in progress but with no visibility

Salwa Hamrouni recalls the presence of gray areas in the presidential project: first of all, what is meant by the notion of true democracy, but also what is the exact outcome of this work, what projects will be announced, what legislative power will be in charge of revising the Constitution if necessary. Finally, she emphasizes the importance of a parliamentary majority and a constitutional court in order to effect change within a constitutional framework. Indeed, should the head of state decide to operate outside the framework following an announcement of the ineffectiveness and illegitimacy of the current constitution, he would be exposing Tunisia to several risks, including that of creating a precedent. This practice would in fact authorize future rulers to set aside the Constitution if they judge that there is an institutional blockage or a “bad” Constitution; this last option would be all the more legitimized by Kaïs Saïed’s decision to operate outside the framework with a committee created by himself in order to carry out his project. Salwa Hamrouni highlights the inevitability of interpretations of the Constitution, but still warns against the risks of operating outside the constitutional framework.

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The Aftermath of Bosnia’s Election: A Chance at Progress or More of the Same?

By Nick Kalams

Nick Kalams is a first-year MAIR candidate at Johns Hopkins SAIS. His interests and research focus primarily on democratic development and the rule of law in Eastern Europe and the Western Balkans.

This past Sunday, Bosnian citizens went to the polls to vote in elections spanning from cantonal leaders to members of the presidency. A stalled economy, an exodus of young people moving to other European countries, and lack of progress on issues are just some of the many issues on the minds of voters. Under the Dayton Agreement, the Bosnian presidency consists of three members: a Serb, a Bosniak, and a Croat, considered the “constituent peoples” of Bosnia. The Serb member is elected by voters living in the subnational entity Republika Srpska, while the Bosniak and Croat members are elected by voters living in the subnational Federation of Bosnia and Herzegovina. This complicated electoral system, created as part of the Dayton Agreement, was developed as an attempt to ensure that the three main ethnic groups in Bosnia and Herzegovina were represented in government, and that the genocide and ethnic cleansing that plagued the country in the 1990s would never again occur.

This year’s presidential candidates represented a wide array of political beliefs, and voters resoundingly made their opinions clear. For the Bosniak seat of the presidency, social democrat Denis Bećirović defeated his Bosniak nationalist and conservative opponent, former presidency member Bakir Izetbegović by about 20 points. For the Croat seat Croat Željko Komšić of the Democratic Front party defeated Croatian nationalist Borjana Krišto (Croatian Democratic Union/HDZ). Voters in Republika Srpska selected conservative Serb nationalist Željka Cvijanović to be their representative to the presidency. 

Even with the victories of Bećirović and Komšić, both of whom support a pluralistic Bosnian society, some voters doubt they will impact a system riddled with corruption that is still at the mercy of the Office of High Representative, an international legal and governmental overseer created via the Dayton Agreement. Ajdin Fuka, an IT developer who voted for Bećirović, told me that “in these difficult times all around the world I don’t expect that we can improve much as a country. The biggest challenge will be to stop corruption and to improve the economy. With Bećirović, I believe these things are possible, but with the other candidates, things will be worse”. Dr. Rešad Numić, an emergency physician who grew up in Yugoslavia and survived genocide and ethnic cleansing in the 1990s, told me that from his perspective, “The most important issues [facing Bosnia] can only be discussed once the nationalist parties are removed from power”. 

Speaking Tuesday on a post-election panel in Sarajevo, former Bosnian foreign minister Zlatko Lagumdžija told the host of the event, Johns Hopkins SAIS Foreign Policy Institute Senior Fellow, Edward Joseph that while Bećirović’s election is the biggest change to come to Bosnian politics in some time, the overall results of the election were a mixed bag for democratic development and governmental reform. “…[Bećirović’s] first speech on election night was encouraging. However, I think that the politicians who have ruled for the last 30 years have become stronger in these elections. Milorad Dodik (president of SNSD) is stronger, and Dragan Čović (president of HDZ) is the winner of these elections….If things don’t change dramatically, and they won’t, the SDA has as many votes as the Troika (the pro-reform parties supporting Bećirović) in the Federation of Bosnia and Herzegovina.”

As of the publication of this article, the United States has supported electoral reform announced by High Commissioner Christian Schmidt, considered by many to be to the benefit of Croats and the HDZ. This electoral reform has been widely criticized by Bosniaks, and has spurred mass protests at OHR offices in Sarajevo, though Joseph noted at Tuesday’s panel that there were next to no protests after the final, more limited decision was announced Sunday. It is crucial, in the aftermath of this election, that the OHR, the US, the EU, and other international stakeholders continue to work towards a better understanding of the needs of Bosnia and Herzegovina. Only once this is accomplished through sustained dialogue with Bosnian citizens, not simply implementing policies through the lens of the 27-year old Dayton Agreement, will Bosnia stand a chance at gaining the prosperity and political stability a number of its European neighbors have enjoyed over the past three decades. 

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From guns to elections: Impacts of peace in Colombia’s political plurality

By Carlos Arturo Gutiérrez Rodríguez

Carlos Arturo Gutiérrez Rodríguez is a PhD candidate in Human Rights, Society and Multi-level Governance at the Università degli Studi di PadovaItaly. 

In Colombian political debate, the Revolutionary Armed Forces of Colombia (FARC) were presented as the number one enemy of the country and the cause of all social problems[1]. Since they were the largest active guerrilla, national politics used to revolve around the, let’s say, “FARC problem”. Their abandonment of weapons, through the Peace Agreement reached in November 2016, is a milestone with effects in the distribution of power. 

Graphic 1. The black arrow shows the growth of alternative forces in the Senate of Colombia from 2014 to 2022. The internal halfmoon presents the legislature of 2014, the middle one the composition for 2018 and the external exposes the results of 2022. Own elaboration based on data from the National Civil Registry Office.

While the 2014 elections were focused on giving or not continuity to the peace talks with FARC, and the 2018 discussions on whether or not rolling back the agreement achieved, this year’s elections are the first ones where the Peace Agreement is not a political option but a public policy. As a result, Colombia chose the Congress with the most plural composition and the greatest balance of forces in the 21st century.  

After its signing, the Peace Agreement had an indirect effect on the growth of alternative political forces that used to be a minority (graphic 1). In fact, for 2022 legislative election the center-left[2] alliance Pacto Histórico was the most voted list: Something never seen in a country traditionally leaning to the right. Other indirect impact of the Agreement is seen in the loss of strength of the government’s party Centro Democrático; their anti-FARC discourse is having troubles now that this armed actor left the fray and lost prominence in the political arena. Their force is also affected by the image of the actual president, Iván Duque, whose margins of approval are the lowest that a president has had (Invamer, 2021).

The Peace Accord had also direct impacts on political plurality by guaranteeing 10 temporary seats in the Congress to Comunes —the political party created by former FARC[3]— and 16 Transitory Peace Circumscriptions (CITREP) in the Chamber of Representatives, designed to increase the participation of the regions more affected by war. Moreover, the Agreement committed the State with the creation of measures to achieve democratic openness.

However, accomplish this quest has serious challenges. For instance, more than half of the population is still not represented in the Congress because they do not even go to vote. Furthermore, although the Election Observation Mission of the European Union in Colombia welcomed the creation of the 16 CITREP, it expressed concerns about the “security, financing and infiltration by political parties and armed groups that make it difficult to achieve the objectives for which they were conceived”[4].

Nevertheless, even if its implementation is weak and Colombian conflict is not over, directly and indirectly, the Peace Agreement is having positive impacts on democratic plurality.


Invamer. (april and may of 2021). Medición # 142. https://www.valoraanalitik.com/wp-content/uploads/2021/05/2021-05-Invamer-Poll.pdf

López de la Roche, F. (2014). Las ficciones del poder: Patriotismo, medios de comunicación y reorientación afectiva de los colombianos bajo Uribe Vélez (2002-2010). Bogotá: IEPRI-Penguin Random House.

Mission of Electoral Observation of the European Union in Colombia. (15 de march de 2022). Colombia celebra una elección legislativa transparente con unas curules de paz innovadoras pero deficientes. Bogotá, Colombia. https://eeas.europa.eu/election-observation-missions/eom-colombia-2022/112864/colombia-celebra-una-elecci%C3%B3n-legislativa-transparente-con-unas-curules-de-paz-innovadoras_es  

[1] A deeper analysis on this matter can be consulted in the book of Professor Fabio López de la Roche (2014).

[2] Some media talks about the Pacto Histórico as a left-wing alliance. However, they are a coalition of multiple forces that integrates, among others: former communists, former sympathizers or the far-right ex-president Álvaro Uribe, unionists, and Christian leaders. Therefore, for this text I refer to them as center-left, instead of simple left.

[3] Five in the Senate and five in the Chamber of Representatives.

[4] Election Observation Mission of the European Union in Colombia (2022)

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Russian Invasion is a Breach of International Law and Minsk Agreement 

Source: abcnews.go.com https://abcnews.go.com/International/mental-health-effects-ukraine-war-zone-children/story?id=83203801

On the 24th of February, Putin launched a full-scale invasion of Ukraine after initially sending forces into Donetsk and Luhansk where Russian-backed separatists have waged a military aggression against Kyiv since 2014 and annexing Crimea in 2014. A number of elements of this war constitute violations of international law: 

Russia’s invasion of Ukraine breaches the Rome Statute and the UN Charter 

  • First and foremost, the UN Charter (Article 2(4) declares that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Russia’s military invasion flagrantly violates this Article.
  • Article 8 of the Rome Statute defines “Crimes of Aggression” as comprising acts by a country utilizing military force that violates another state’s territorial integrity in a manner contrary to the UN Charter and Geneva Conventions. This includes the invasion, occupation, and/or annexation of a state by another state. It also covers the bombardment or use of weapons upon a state’s territory or an attack on its armed forces. 

Russian military action against Ukraine in contravention of international law is well-documented. Such actions include: 

Russia justified its invasion of Ukraine on the basis of humanitarian action and self-defense. On the one hand, Russia claimed that Kyiv had been committing genocide in the Donbas against ethnic Russians. There is no evidence that Ukraine engaged in any of the defined actions. Moreover, even if the Ukrainian government had committed human rights abuses against Russians in eastern Ukraine, neither the Genocide Convention nor the UN Charter authorizes convention parties or UN member states to use force to remedy acts of genocide or serious human rights abuses.[1]

On the other hand, Moscow had also asserted that Ukraine was preparing to attack Russia. While international law provides for offensive military action on the grounds of self-defense under UN Charter Article 51, both of the Kremlin’s rationales are unsubstantiated and are considered to have merely been pretexts for Putin to launch an invasion against Ukraine. 

Bombardments of civilian populations and infrastructure constitute Crimes Against Humanity and War Crimes 

Rome Statute Article 7 defines “Crimes Against Humanity” as comprising acts “when committed as part of a widespread or systematic attack directed against any civilian population” including, among others, murder. Rome Article 8 also details “war crimes” as consisting of “Grave breaches of the Geneva Conventions of 12 August 1949…against persons or property protected under the relevant Geneva Convention” including “willful killing” and “Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” 

Russia’s attacks on civilians and non-military infrastructure violate the Geneva Conventions’ and the Rome Statute’s protection of non-combatants. Amnesty International has described Russia’s use of ballistic missiles on population centers as “indiscriminate” and contrary to international law. 

Minsk Agreements 

Belarus President Alexander Lukashenko, Russian President Vladimir Putin, German Chancellor Angela Merkel, France’s President Francois Hollande and Ukrainian President Petro Poroshenko (L-R) pose for a photo at the presidential residence in Minsk on February 11, 2015, during a meeting aimed at halting a 10-month war in Ukraine where dozens were killed in the latest fighting. AFP PHOTO / MAXIM MALINOVSKY (Photo credit should read MAXIM MALINOVSKY/AFP via Getty Images)

After the collapse of the Minsk I accord that had been negotiated in September 2014, Russia, Ukraine, the OSCE, and leaders of the two separatist regions, had agreed to a subsequent treaty Minsk II in February 2015, that entailed the following provisions

1. An immediate and comprehensive ceasefire

2. Withdrawal of all heavy weapons by both sides 3. Monitoring and verification by the OSCE 

4. To start a dialogue on interim self-government for the Donetsk and Luhansk regions, in accordance with Ukrainian law, and acknowledge their special status by parliamentary resolution. 

5. A pardon and amnesty for people involved in the fighting 

6. An exchange of hostages and prisoners. 

7. Provision of humanitarian assistance. 

8. Resumption of socio-economic ties, including pensions. 

9. Restoration of full control of the state border by the government of Ukraine. 

10. Withdrawal of all foreign armed formations, military equipment and mercenaries. 

11. Constitutional reform in Ukraine including decentralisation, with specific mention of Donetsk and Luhansk. 

12. Elections in Donetsk and Luhansk on terms to be agreed with their representatives. 

13. Intensifying the work of a Trilateral Contact Group comprising representatives of Russia, Ukraine and the OSCE. 

The accord suffered from several shortcomings. Article 10, withdrawal of foreign forces from Ukrainian territory, conflicted with Russia’s denial that it had any military personnel in the Donbas and therefore proved difficult to enforce. Regardless, Russia’s initially limited incursion on the Donbas last week and its full-scale invasion of the whole country violates Articles 1, 2, and 10 of Minsk II.[2]

[1] https://www.cfr.org/article/how-russias-invasion-ukraine-violates-international-law

[2] See also here https://cepa.org/dont-let-russia-fool-you-about-the-minsk-agreements/

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Promoting the Rule of Law in the EU Enlargement Policy: A twofold challenge

By Leposava Ognjanoska, PhD candidate (LLM) 

Leposava Ognjanoska is a PhD candidate at the Faculty of Law “Iustinianus Primus” − Ss Cyril and Methodius University in Skopje with extensive experience in European integration affairs, and alumna of the CCSDD European Union and Legal Reform Summer School.

Full article has been published by Croatian Yearbook of European Law and Policy (CYELP) DOI: 10.3935/cyelp.17.2021.455 (https://www.cyelp.com/index.php/cyelp/article/view/455).  

The EU is not only a ‘Community based on the rule of law’ but it is a Community/Union based solely or at least primarily on the rule of law.[1] The rule of law is enshrined at the core of European Union primary law − it is listed among the founding values of the Union and is stated as an objective that determines the way in which the EU exercises its competencies.[2]Likewise, it is also recognised as a value defining EU membership, given Article 49 TEU which stipulates that every European state that respects the values referred to in Article 2 (basic values of the EU) and is committed to their promotion may apply to become a member of the EU. Hence, the enlargement of the Union is based on achieving and respecting certain values: the fundamental values of the EU including the rule of law. 

Since the rule of law was introduced into the EU enlargement policy, its role within the conditionality policy has advanced gradually so that it has become the cornerstone of the accession process. In this short overview of the EU rule of law promotion within the enlargement policy, we will strive to identify what are the main challenges in this regard and the main reasons why the EU has made the rule of law central to its new enlargement methodology. 

Although the rule of law was included in the Copenhagen criteria and the Amsterdam principles, the approach in the EU accession of the Central and Eastern European states (CEE) focused mainly on the legal transposition of the EU acquis and institution building − the necessary administrative and judicial structures for the correct application of EU legislation, whereby the rule of law was not touched upon in its substance. Due to the limited scope of the EU acquis in many of these areas covered by the Copenhagen criteria, mainly the rule of law, the missing normative content was filled by referring to the European standards developed by other regional/international organisations such as the Council of Europe rules or OSCE principles. The main elements of the EU-driven reforms referred to the intensified alignment of domestic legislation with European and international standards, including approximation with the acquis communautaire, as well as increased legislative output that potentially weakened legal stability.[3]

Even so, this approach brought difficulties on how to measure progress and was criticised for its rather ‘simplistic sum’[4] of the rule of law and democracy and the lack of ‘actual substance’.[5] In this manner, there was a discrepancy between the accession conditions and membership obligations because the norms the Union has promoted in the context of enlargement go well beyond the perimeter of the EU acquis stricto sensu.[6] Lack of a uniform conception of the rule of law affected how applicant countries reform their governmental structures according to their interpretation of the concept and had the potential of influencing and disrupting the further expansion of the EU to include countries from CEE.[7] Therefore, the rule of law is part of the so-called ‘enlargement acquis’ within the EU’s accession conditionality but not, or only to a limited extent, part of the EU acquis.[8]

The extension of EU membership to CEE has been a process of fundamental domestic change in response to EU rules and regulations but (some of) the states that entered the EU from 2004 onwards did not finish the transformation process on the date of accession. In these areas the EU often gave ‘priority to efficiency over legitimacy’[9] regardless of the conditionality policy. Moreover, it became apparent that the Europeanisation process may even be reversible and revealed stagnating and even declining trends, where the rule of law had not improved significantly and had even further deteriorated, thus questioning the EU transformative power. The decision to allow the accession of ‘imperfect’ new Member States did not follow consistently the ratio behind the conditionality policy but represented primarily a political decision driven by ‘wider security imperatives’ to some extent.[10] Hence, the identified problems and inconsistencies pointed to ‘the gap between conditionality on paper and conditionality in practice’,[11] suggesting that ‘conditionality can only become a true principle of enlargement, when the whole accession process is mostly moved away from the sphere of politics into the realm of the law’.[12]

Post-accession experience with regard to rule of law compliance and conditionality imposed some internal challenges for the EU that have had a major influence on the EU’s external upholding and promotion of the rule of law within the enlargement policy towards the Western Balkans. The EU has developed a normative basis against which new admissions would be assessed and in the framework of which the enlargement policy will be conducted, so these new rules have since become applicable in the accession process of the candidate countries from the Western Balkans (WB).[13]

With the Enlargement Strategy 2005, the Commission introduced a reinforced monitoring system with focus on the rule of law.[14] According to the 2006 European Council conclusions, the updated consensus on the enlargement policy enhanced the importance of the rule of law: ‘accordingly, difficult issues such as administrative and judicial reforms and the fight against corruption will be addressed at an early stage’.[15] This approach was also reflected within the Treaty of Lisbon (Article 49 TEU) that introduced the commitment to respect the rule of law as a condition for EU membership. Hence, apart from standing as a pillar of EU identity, this principle is now operationally used as an eligibility criterion for EU membership.[16]The concept of the rule of law in the EU enlargement process[17] is covered by the newly introduced Chapter 23 − Judiciary and Fundamental Rights (first met in the Croatian negotiating process) and Chapter 24 − Justice, Freedom and Security of the EU acquis which are central in the Europeanisation process, and the overall progress of the EU acceding country is based on these criteria. Therefore, the EU requires the Western Balkan countries to demonstrate a credible track record of a properly functioning judicial system, the effective fight against corruption, and protection of fundamental rights.

Further requirements were gradually introduced by the European Commission on the basis of the Enlargement Strategies and elaborated in the (Progress) Reports for each country where comparison of these reports reveals a more significant role of the rule of law areas with regard to the Western Balkan countries versus the CEE countries that joined in 2004. The ‘new approach in the enlargement process’ concerning the prioritisation of the rule of law reforms in candidate countries was officially introduced with the Enlargement Strategy in 2011.[18] Measuring the success or failure in fulfilling the principle of the rule of law is based on set benchmarks, including opening and closing but also interim benchmarks that would assess the country’s progress in the negotiating chapter, where the overall progress in Chapters 23 and 24 determines the pace and dynamics of the negotiations as a whole (overall balance clause). Therefore, the Western Balkan countries are expected to get a head start on the rule of law reforms as the most difficult aspect in order to allow enough time to build solid track records of implementation before opening other negotiating chapters. 

This new approach was first applied with regard to the negotiations with Montenegro and then consequently in the negotiations with Serbia, as it was intended to further strengthen the accession process by avoiding the need for post-accession instruments. This new approach with a strong emphasis on Chapters 23 and 24 did not come without some limitations. There is limited availability of clear and unambiguous rules especially under Chapter 23 due to the lack of a hard acquis but also the non-uniform concept of standards on the basis of the Member States’ best practices. With regard to the Chapter 24 areas, there was an accelerated development of the acquis. However, contrary to the raison d’être of the new approach − to enhance the accession process and rule of law compliance in particular, the figures presented below show a lack of tangible results and the prevalence of the same levels of alignment. Although Montenegro has been negotiating for more than nine years and Serbia for more than seven, already longer than Croatia which concluded the negotiations in six, membership prospects still remain distant if conditioned by rule of law preparedness, as the new approach envisages.

In February 2018, the European Commission reaffirmed the firm, merit-based prospect of EU membership for the Western Balkans by adopting the ‘Credible Enlargement Perspective for an Enhanced EU Engagement with the Western Balkans’ Strategy,[19] which came almost fifteen years after the last EU-Western Balkans Summit in Thessaloniki in 2003, perceiving the Western Balkans enlargement process as a geostrategic investment for the Union. The underlying message in the rule of law initiative is that the Commission plans to make use of all of the leverage provided in the accession talks frameworks for as long as possible, by delaying the Western Balkans accession to the EU in order to avoid any repetition of the scenarios of Hungary and Poland[20] or when observing clear elements of backsliding in the membership commitments to the rule of law[21] and persisting problems with organised crime as in the case of Bulgaria. Still, this new Strategy was not enough to overcome the impasse in the EU’s enlargement policy on the Western Balkans that has been running on ‘autopilot’ for the last fifteen years,[22] thus in March 2020 the EU once again − or more precisely for the fourth time − formally[23] introduced new rules on accession negotiations by adopting the new Enlargement Methodology on the basis of the Commission’s proposal entitled ‘Enhancing the accession process: A credible EU perspective for the Western Balkans’.[24]

This need for further reform of the accession process came after the 2019 French veto of the proposal of the European Commission to open accession negotiations between the EU and North Macedonia and Albania,[25] supported by Denmark and the Netherlands as well. Two main arguments raised with regard to the veto were the following: first, the EU needs to strengthen its existing policies and institutions before adding any new members; and, second, the enlargement policy and accession talks process are flawed, as there is no guarantee that the candidate state will subscribe to the Copenhagen criteria and uphold the rule of law and the EU liberal democratic values once they join the EU.[26] On this occasion, French President Macron stated that these countries are implementing EU legislation without transforming, thus implying that the process of Europeanisation based on exporting the principles of democracy and rule of law has failed to bring the required changes and prepare the countries for EU membership. Nevertheless, the background to this decision reveals that it was made also due to the fourth Copenhagen criterion − ‘absorption capacity of the Union’ that refers to the capability to include new members. The introduction of this condition provides the possibility to diverge from the procedure and make a political decision if a country fulfils the membership criteria while the Union itself, for different reasons, is not prepared for further enlargement. Hence, besides the lack of transformation that President Macron referred to, it was also about inner limitations within the Union and divergence with regard to its further enlargement, also questioning the strength of the EU’s trans-formative power.[27]

In accordance with these new requirements set by the new Enlargement Methodology, North Macedonia has achieved good progress in the key areas under the first cluster that was followed up by the Council of the EU decision in March 2020[28]finally adopting a conclusion to open accession negotiations with both North Macedonia and Albania, albeit without setting a date for the first intergovernmental conference. Nevertheless, until now the EU has failed to reach an agreement on approving the negotiations frameworks with North Macedonia and Albania, which proves the claim that accession is in fact a political process involving discretion about timing and the different weights given to the various factors influencing the decision above and beyond the rule of law, regardless of its central role as prescribed.

The case of North Macedonia’s accession towards the EU is a drastic one, questioning the credibility of the enlargement process. Besides Croatia, the country has been ‘an early and eager “Europeaniser” in the Western Balkans’108 being the in 2001[29] as the first country from this region to sign the Stabilisation and Association Agreement, that further engaged in a high legislative activity to bring its institutions and policies in line with the EU and earned a positive recommendation in 2009 to open the accession negotiations, only to be vetoed by a Member State on the basis of an issue which is not part of the Copenhagen criteria widely accepted as the main accession conditions – the name dispute with Greece. By placing the name dispute as the main catalyst for the process, the fulfillment of the Copenhagen criteria was compromised and ‘particular bilateral issues which have little to do with the formal membership conditions have inhibited the accession process’.[30] The long-standing name dispute was resolved in 2018 with the signing of the Prespa Agreement[31] according to which the country accepted ‘Republic of North Macedonia’ as its official and constitutional name on the basis of the EU promise for common European future. But instead of ‘lessons learned’, the EU is facing repeated mistakes as the decision to open the long-delayed accession negotiations with North Macedonia from March 2020 is still not being implemented due to a blockade imposed by Bulgaria on adopting the negotiation framework and scheduling the first intergovernmental conference on claims over its history, language and identity.

Table 1. Progress in areas under Chapter 23 MKD 2009 – 2015

 JudiciaryAnti-corruptionFundamental Rights/Freedom of Expression

Source: Author’s calculations based on EC (Progress) Reports

Hence, even if incentives are strong in principle, they fail to affect rule adoption and compliance if they lack credibility.According to the new Enlargement Methodology, more credibility is indicated as the first condition for reinvigorating the accession process to deliver its full potential, but it is emphasised that ‘it needs to rest on solid trust, mutual confidence and clear commitments on both sides’.[32] The EU should particularly discourage bilateral issues from dominating the enlargement agenda. On the one hand, because they undermine the merit-based prospect of full EU membership and its main principles − predictability and conditionality, the mutual trust and confidence necessary for the accession process to be able to deliver its potential, while, on the other hand, having in mind the Western Balkans landscape, these issues have the potential to create serious instability which may be forestalled only by strict rule of law conditionality that will place the focus on the real problems of these societies.

To overcome the absorption capacity issue and enlargement impasse, the EU must explore all avenues for the advanced integration of the Western Balkans in the period preceding accession in line with its commitments for phased-in accession as defined in the new methodology while maintaining the central role of rule of law conditionality. Finally, there is clear and close interrelation of the internal and external dimension of the rule of law − its protection within the Union and the ability to deal with internal backsliding on the one hand, and the promotion of the rule of law in the enlargement policy and the projection of this core EU value beyond, on the other. This in turn will strengthen the Union on the inside by reinforcing the EU role as a global player.

[1] Frank Emmert, ’Rule of Law in Central and Eastern Europe’, (2008) 32(2) Fordham International Law Journal 551, 582.

[2] Cristophe Hillion, ‘Overseeing the rule of law in the European Union: Legal mandate and means’ [2016] European Policy Analysis 1.

[3] Martin Mendelski, The EU’s Rule of Law Promotion in Central and Eastern Europe: Where and Why Does It Fail, and What Can be Done About It? (Bingham Centre for the Rule of Law 2016) 5.

[4] Allan Tatham, Enlargement of the European Union (Kluwer Law International 2009) 209.

[5] Päivi Leino, ‘Rights, Rules and Democracy in the EU Enlargement Process: Between Universalism and Identity’ (2002) 7 Austrian Review of International and European Law 53, 80.

[6] Christophe Hillion, ‘EU Enlargement’ in Paul Craig and Grainne de Búrca (eds), The Evolution of EU Law (2nd edn, OUP 2018).

[7] Dale Mineshima, ‘The Rule of Law and the Eastern Enlargement of the EU’ (Ph.D. thesis, Old Elvet Durham University 2001) 109 <http://etheses.dur.ac.uk/3827/> accessed 05 June  2021.

[8][8] Tomasz P.Woźniakowski, Frank Schimmelfennig and Michal Matlak, ‘Europeanization Revisited: An Introduction’ in Tomasz P.Woźniakowski, Frank Schimmelfennig and Michal Matlak (eds.), Europeanization Revisited: Central And Eastern Europe In The European Union (European University Institute and Robert Schuman Centre for Advanced Studies, 2018) 6, 11.

[9] Heather Grabbe, The EU’s transformative power. Europeanization through conditionality in Central and Eastern Europe  (Palgrave Macmillan, 2006) 205.

[10] Dimitris Papadimitriou and Eli Gateva, ‘Between Enlargement-led Europeanisation and Balkan Exceptionalism: an appraisal of Bulgaria’s and Romania’s entry into the European Union’ (2009) 10(2) Perspectives on European Politics and Society 152, 164.

[11] Dimtiry Kochenov, EU Enlargement and the Failure of Conditionality: Pre-accession Conditionality in the Fields of Democracy and the Rule of Law (Kluwer Law International 2008) 311.

[12] Ibid, 312.

[13] Hillion (n 6) 193.

[14] Commission, ‘The Western Balkans and European Integration’ (Communication) COM (2003) 285.

[15] European Council, ‘Presidency Conclusions’, Brussels, 15 December 2006.

[16] Amichai Magen, ‘Cracks in the Foundations: Understanding the Great Rule of Law Debate in the EU’ (2016) 54(5) Journal of Common Market Studies 1050.

[17] According to the EU’s Enlargement Strategy 2011/2012 developed by the European Commission which lists the areas included in the rule of law concept.

[18] Commission, ‘Enlargement Strategy and Main Challenges 2011−2012’ (Communication) COM(2011) 666.

[19] Commission, ‘Communication on a Credible Enlargement Perspective for and Enhanced EU Engagement with the Western Balkans’ COM (2018) 65.

[20] Heather Grabbe and Stefan Lehne, ‘Defending EU Values in Poland and Hungary’ (Carn-egie Europe 2020) <hhttps://carnegieeurope.eu/2017/09/04/defending-eu-values-in-po-land-and-hungary-pub-72988> accessed 23 July 2021.

[21] Dariusz Adamski, ‘The Social Contract of Democratic Backsliding in the ‘New EU Countries’ (2019) 56(3) Common Market Law Review 623.

[22] Marko KmeziÊ, The Western Balkans and EU Enlargement: Lessons Learned, Ways Forward and Prospects Ahead, (European Parliament 2015) 6 <www.europarl.europa.eu/RegDa-ta/etudes/IDAN/2015/534999/EXPO_IDA(2015)534999_EN.pdf> accessed 22 July 2021. 

[23] With the Copenhagen criteria as a starting point, Chapter 23 as the second innovation, and the new approach as the third novelty.

[24] Commission, ‘A Credible EU Perspective for the Western Balkans’ (Communication) COM (2020) 57.

[25] According to the published conclusions from the European Council meeting on 17 and 18 October 2019, the European Council will revisit the issue of enlargement before the EU-Western Balkans-summit planned for May 2020 <https://www.consilium.europa.eu/ media/41123/17-18-euco-fi nal-conclusions-en.pdf> accessed 29 July 2021.

[26] Andi Hoxhaj, ‘The EU Rule of Law Initiative Towards the Western Balkans’ (2021) 13 Hague Journal on the Rule of Law 143, 148.

[27] An analysis of the public discourse on this decision leads to the conclusion that France was the main opponent. In an interview with The Economist published on 7 November 2019, President of France Emmanuel Macron said: ‘We can’t make it work with 27 of us (…). Do you think it will work better if there are 30 or 32 of us? And they tell me: “If we start talks now, it will be in ten or 15 years”. That’s not being honest with our citizens or with those countries. I’ve said to them: “Look at banking union”. The crisis in 2008 with these big decisions; end of banking union in 2028. It’s taking us 20 years to reform. So even if we open these negotiations now, we still won’t have reformed our union if we carry on at today’s pace’. The Economist, ‘Emanuel Macron in His Own Words’ The Economist (London 7 November 2019) <www.economist.com/europe/2019/11/07/emmanuel-macron-in-his- own-words-english> accessed 28 July 2021. Rym Momtaz and Andrew Gray, ‘Macron Urg-es Reform of ‘Bizarre’ System for EU hopefuls’ Politico (Toulouse 16 October 2016) <www. politico.eu/article/macron-urges-reform-of-bizarre-system-for-eu-hopefuls/> accessed 29 July 2021.

[28] Council of the European Union, ‘General Affairs Council conclusions’, Brussels, 25 March 2020.

[29] Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Former Yugoslav Republic of Macedonia, of the other part [2004] OJ L84/13.

[30] Frank Schimmelfennig and Ulrich Sedelmeier, ‘The Europeanization of Eastern Europe: The External Incentives Model’ (JMF@25 conference, EUI, 22-23 June 2017).

[31] Agreement – Final Agreement for the Settlement of the Differences as Described in the United Nations Security Council Resolutions 817 (1993) and 845 (1993), the Termination of the Interim Accord of 1995, and the Establishment of a Strategic Partnership between the Parties  <https://vlada.mk/sites/default/files/dokumenti/spogodba-en.pdf> accessed 28 November 2021. 

[32] Commission (n 24) 2.

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Magnitsky Legislation – A New Generation of Laws

By Stevan Lilić, Director of the Centre for Advanced Legislation

Nota bene: Translation of article published in the Belgrade weekly “Vreme” December 16, 2021 (pp. 38-39). Text also posted on the “Open Doors of Justice portal (www.otvorenavrata pravosudja.rs). 

Source: https://www.fondazionedirittiumani.ch/2020/12/10/lue-adotta-un-regime-di-sanzioni-individuali-in-stile-magnitsky-per-gravi-violazioni-dei-diritti-umani/

Laws on restrictive measures and targeted sanctions for corruption and human rights violations, known as “Magnitsky Legislation,” are the newest generation of laws. After the previous generation of laws dealing with human rights protection (the ombudsman, prohibition of discrimination, free access to information of public importance, protection of personal data, etc.), Magnitsky legislation focuses on imposing targeted personal and property sanctions on exact individuals and legal entities responsible for corruption and/or serious human rights violations.

Targeted individual and property sanctions primarily include visa restrictions and freezing assets to persons involved in transnational corruption, as well as persons who exert pressure and unjustifiably conduct legal proceedings against citizens who advocate for the free exercise of their constitutional human rights (freedom of speech, public accountability of state officials, freedom of public assembly, etc.), as well as against persons who institutionally, factually or by means of biased media threaten and persecute whistle blowers who uncover corruption. 

Contrary to general national sanctions imposed on a state which affect the entire population (and largely innocent citizens), the quintessence of Magnitsky legislation is based on individually targeted ad personam repressive measures which, on basis of an inclusive register of “specially designated persons” are imposed on a specific natural or legal person for corruption and/or human rights violations.

In the last decade, an increasing number of countries, including the European Union, have decided to introduce some form of Magnitsky legislation into their legal systems, either as special and comprehensive laws in the form of “global Magnitsky laws” (USA, Canada, EU), or in the form of amendments to existing tax or criminal laws (UK, Estonia, Lithuania, Latvia, etc.).

Magnitsky legislation gets its name as a tribute to Sergei Magnitsky (1972-2009), a Russian citizen who was an auditor with a foreign consulting firm in Moscow. His arrest in 2008 and his death after eleven months in police custody provoked a reaction from the international community and launched investigations into corruption, theft and serious human rights violations in Russia. Magnitsky himself discovered enormous fraud of government property, which was indirectly enabled and directly carried out by state officials of the Russian Federation. Instead of initiating proceedings against the responsible officials, the Russian authorities arrested Magnitsky. He died in prison seven days before the expiration of the one-year period until which he could be detained without trial.

The news of Magnitsky’s arrest, the manner in which he was treated, and especially the news of his death in prison, provoked strong reaction from the international community, including adopting condemning resolutions of the Council of Europe and the European Parliament. The United States, however, was the first country to impose targeted sanctions on individuals suspected of being responsible for Magnitsky’s death under a law passed by the US Congress in 2012 (Sergei Magnitsky Rule of Law Accountability Act, U.S.C. §5811). Under this Law, Russian government officials suspected of being involved in Magnitsky’s arrest and death were banned from entering the United States and using the US banking system (54 individuals and 1 legal entity). In 2016, Congress extended the scope of this Law, now as the Global Magnitsky Human Rights Accountability Act (USC §2534), so that, apart for officials of the Russian Federation, it can be “globally” applied to all persons participating in transnational corruption and who commit serious forms of human rights violations regardless of citizenship or nationality.

After the United States, a growing number of countries adopted various forms of Magnitsky legislation, including Estonia (2016), Great Britain (2017), Canada (2017), Lithuania (2017), Latvia (2018), and Gibraltar (2018). 

Global Magnitsky legislation on grounds of serious human rights violations has recently become an integral part of the legal order of the European Union. At the end of 2020, the Council of the European Union adopts two “global” Magnitsky documents: Regulation (EU 2020/1998) and Decision (CFSO 2020/1999) on “Restrictive Measures for Serious and Other Human Rights Violations”.

In relation to Serbia, on the basis of the Global Magnitsky Law, at the end of 2019, the US introduced ad personam sanctions to S. Tesic and nine other citizens of Serbia for illegal weapons trade. The US recently imposed sanctions against “Dana”, a company owned by the (Serbian) Karic family, due to business ties with Belarusian President Lukashenko. However, the latest targeted sanctions were imposed days ago by the US Treasury Department on the basis of Presidential Decree (Executive Order No. 13818 of December 8, 2021) to persons from northern Kosovo, El Salvador and the DRC. Sanctions were imposed against an “organized crime group” from the north of Kosovo led by (Serb) Z. Veselinovic and 15 other persons, as well as against 24 companies that the US authorities claim are under the control of this group with the explanation that, among other things, “… is engaged in a largescale bribery scheme with Kosovar and Serbian security officials who facilitate the group’s illicit trafficking of goods, money, narcotics, and weapons between Kosovo and Serbia.” (https://home.treasury.gov/news/press -releases/jy0519).

Having in mind the scale of corruption and the human rights situation in the (Western Balkan) Region, on the one hand, and the constitutional proclamation on “belonging to European principles and values” (Article 1), on the other, this may be the right time for Serbia to adopt its own Magnitsky Law.

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Reintegration Through Social Enterprises in Nigeria

By Josef Otavio Santos Horwath, Research Assistant HT Chapter

Source: SOCIAL ENTERPRISE AND INCLUSIVE BUSINESS IN ACP COUNTRIES: VARIETY AND ACCESS TO FINANCE https://www.icr-facility.eu/knowledge-hub/social-enterprise-and-inclusive-business-1

As a nation that has struggled with successful economic development, Nigerian citizens have continuously found it difficult to obtain economic opportunities that may aid in its country’s development. Unfortunately for some, such a lack of economic opportunities may mean exploitation in the human trafficking industry.  Those who manage to disentangle them from trafficking, their “freedom” is often met with the task of finding and sustaining a means of subsistence, mostly without the necessary education and experience that most labor markets require, while impacted on a psychological and physical level by their abuse and exploitation experiences. 

In order to aid people in their attempt to join the labor market after having escaped the trafficking industry, many countries develop programs that provide educational means to better suit victims in their attempt to join the labor market, often in the victim’s country of origin. Unfortunately, many of these programs, coined as re-integration programs, are not always effective. This creates a cycle where a victim’s eventual “freedom” only results in a return to the trafficking industry later on, as such programs often fall short of their goals. While these are issues that countless organizations and academics are trying to resolve, the following analytical entry is aimed at providing an intellectual stimulus for a form of policy solution to a historical lack of effective reintegration programs. The ideas provided in this entry focus on local pioneering, with the intention, that its good practice may have positive spillover nationally.

Nigeria has had a long history of political corruption, which favors the interests of the elites above the interests of the people. Due to this dichotomy and ignorance towards issues that affect a subset of people in Nigeria, a significant obstacle to reintegration programs and development aid in Nigeria is constant corruption. From a historical perspective and in the context of modern governance, developing a solution and attempting to improve the nature of the system is often met with push-back. Steps forward might seem like steps back primarily due to the influence of few elites and their political and economic control over the system. For this reason, targeting these issues at the state level is complex, because it is much harder to dismantle the corrupt behavior of the elites at the top of the line rather than target local communities that may be more prone to immediate change given an economic incentive. There may not be a blank check fix the issues that remain at large: poverty, inequality, corruption and violence. However, it is possible to improve the way in which these issues are approached, in the context of how they impact long-term reintegration among human trafficking victims focused on alternative livelihoods. By investing in local communities and allowing individuals within those communities to have the power to change and develop what is around them, it may be possible to usurp the dynamics that prevent necessary development from occurring. In the field of human trafficking specifically, individuals struggle with social inclusion back into society in the form of reintegration because apart from their traumatic experiences and unfinished healing, there is little economic opportunity linked to status. By granting victims the ability to invest directly in their communities, in the form of social enterprises, one offers them a vision of a more developed community rather than the perpetual hardships inflicted in many Nigerian towns and cities.

In the status quo, reintegration programs are largely ineffective because they offer primarily short-term support (typically 3-6 months). Programs typically provide victims with housing as well as training in certain employment sectors for the first few months after their return to their community. Many of these programs rarely have synergy between training, educational and vocational activities while victims are abroad and upon their return home. Most programs in fact only go so far as providing cash assistance to victims without any other additional aid, psychological support or mentorship. However, when the ties are cut between the victims’ and the specific reintegration program where they received their support (both in Europe and at home), victims’ are left mostly on their own to garner the economic stimulus needed to survive in their local communities. Victims might also not be emotionally or physically ready to immediately enter the workforce after having been through traumatic events that require a recovery period. Moreover, they may not be born entrepreneurs so an adjustment into such a program may require continued support beyond short-term assistance. For this reason, there is an inconsistency with data collection regarding how effective these forms of reintegration programs are. This is because “very few studies have examined life after trafficking in Nigeria.”[1] With no long term support, victims’ that are met with economic struggles in some form are pushed into a corner where they are unable to receive support and often times forced to turn back to the trafficking industry. The basis of reintegration programs should not be contingent on a short-term transition but one that provides long-term support including healing, mentorship and guidance.

Additionally, the economic incentives provided by the majority of reintegration programs are economically unproductive because they do not provide any guarantee of economic opportunity. Improving their socio-economic status is the main principle with which individuals enroll into these reintegration programs. They have no support to earn and little to no economic activity around them to develop. Despite the abundance of natural resources in Nigeria, citizens generally are unable to derive “any meaningful developmental benefits from resource revenues because of the widespread incidence of corruption and revenue mismanagement by the political elites.”[2] As continued economic volatility affects victims upon their return to their local communities, the situation only exacerbates their vulnerability and undermines their fight against the system that may have facilitated them to be trafficked in the first place. Economic self-sufficiency is the status with which these individuals need to survive. In a survey among Nigerian trafficking victims, many have described the nature of their work as a form of survivalist labor. They are assisted in finding jobs that offer them just enough money to survive on a day-to-day basis without actually instilling any form of significant change. The authors write that in Nigeria, “the use of vocational training as means for survivors to secure their economic self-sufficiency… [diverts] attention away from the real structural economic and political reforms needed to enable survivors [secure]… their long-term economic wellbeing.”[3] Any form of solution must act with the intention to improve the structural system that diminishes the inability to achieve true economic self-sufficiency.

While the economic system is important in understanding the reason why victims struggle to find economic opportunity when they begin the reintegration process, it is also vital to understand how the industry itself affects victims on a psychological level and why they might turn to trafficking, if not by force. The sex industry is built on the social obligation that is passed onto sex workers, who feel as though they are sacrificing themselves in order to support their families back at home as well as pay off a debt to someone in a position of power over them. The system thrives not on those who are “actually trafficked” or taken against their will, but instead on the majority of women who are socially obligated to take part in a very exploitative business.[4] The psychological component of obligation might not be fully erased from an individual after their debt has been paid to their madamme. If a reintegration program can address this stigma, the sense of obligation in order to fulfill their familial duties, it may be more effective at establishing a norm away from sexual exploitation. Even if that stigma cannot be fully erased but shifted to another avenue that fulfills that obligation, victims are less likely to turn back to the trafficking business.

Social enterprises, as a form of developmental aid in Nigeria, have the potential to provide economic stimulus in the form of community improvements. As a general precedent, it is important to understand that development processes require a range of resources that are unique to the particular place and community in question, so as to divert the resources necessary to mobilize efficiently.[5] A social enterprise itself is defined broadly as organizations that exist to produce a public or community benefit and trade.[6] These organizations usually come in hybrid forms, with characteristics of for-profit businesses as well as community sector organizations.[7] The most important distinctive factor is their connection with the community with which they are involved. That is, the relationships that are formed with the enterprise and the social context of the local community. This relationship is the basis for change, as it allows individuals involved to be invested in an enterprise that provides economic opportunity and constructs a relationship between individuals and their community. 

The local focus of social enterprises allows for a more efficient way to allocate resources. Most local communities in Nigeria have suffered as a result of globalization as development is hindered by the disorganization of communities unable to take advantage of the resources that they may have. However, local actors in the form of social enterprises are capable of developing a strategy that is specific to their needs and “not transcend global forces.”[8] A key aspect of this strategy is to gain control of local natural resources in order for them to be utilized in local economies.[9] While the challenge here is corruption, because the political elites are best suited to seize control of these resources, community leaders offer additional ways to undermine the power that political elites might have in the local communities in focus. 

Historically speaking, in the context of Nigeria, the structure of the criminal justice system is one that does not adequately punish those who might have interest in developing new business structures. Ellis explains that “if an offender ‘has cheated the Government, or swindled some business concern, he will probably be accorded the approbation and welcome due to a David who has dealt faithfully with Goliath.’”[10] In comparison, a Nigerian who has stolen food or cattle is most likely sentenced to prison, as theft in this manner is considered a serious crime.[11] As such, due to a lack of a punishment system, that supports the propagation of businesses in Nigeria generally, it becomes difficult to establish norms that are consistent with the goals of developmental projects. In other words, the battle is certainly uphill as corrupt individuals will always have a vested interest in joining any form of social enterprise that may be succeeding in the community. However, social enterprises are already starting to garner positive effects in other developing countries and thus its use in Nigeria is definitely an idea that should be more widely discussed.

Re-integration programs in the form of social enterprises have been empirically successful in countries such as Bangladesh or Slovakia.[12] Similar to the way in which they would be implemented in Nigeria, they offer victims the ability to become involved in their local communities immediately upon their return. In Bangladesh, they have “developed a mechanism that gives returnees the option to invest in a social enterprise as part of a group of returnees and with the backing of a local NGO, effectively becoming shareholders in a community-based social enterprise.”[13] This idea can be extrapolated to Nigeria and offers a way for not only victims to help better their local communities, by incentivizing them to improve it economically, but also offering themselves economic opportunity. Moreover, the idea that victims are working on these projects together, offers a safety net of support, mentorship and peer-to-peer community among them, since they share similar experiences. In Bangladesh specifically, the social enterprises operate like normal businesses “and are administered by a board of directors as the governing body, which includes two members of each group – returnees, local community members, and the local NGO.”[14] The profits are distributed among the families of the victims as well as other investment partners. Depending on the local resources of their community it further generates positive images through an increased sense of employment as well as the ability to supply and sell goods and services in rural areas. All in all, it is a way to reinforce social cohesion as it forces a relationship between victims who were turned away from home and their local community.

Bangladesh is not alone in its success story as more and more countries are beginning to adopt similar theories of development to their own form of reintegration programs. While Europe and the United States have adopted such measures with success, it is much more difficult to compare the economic situations of those developed countries to a country such as Nigeria. For this reason, a recent analysis done in the Philippines offers a more relevant empirical case study demonstrating the economic effects of social enterprises. The study offers a specific definition of social enterprises as organizations that serve the marginalized “as primary stakeholders and have distributive enterprise philosophy.”[15] In this specific case study, they found improvements in personal empowerment (in the economic sense), individual confidence, health outcomes and personal finances relative to more standard reintegration programs.[16] A potential reason for the success of these enterprises is their flexibility in responding to the needs of their “service users and their role as ‘boundary spanners’ in creating strong ties and connectedness between different stakeholders.”[17] In other words, the connectedness between stakeholders and individual victims is a result of such enterprises. This is applicable to strengthening Nigerian local communities as it may provide a nexus between returnees and local community leaders, which is incredibly important in order to achieve a similar effect. Due to the developing nature of the Philippines, albeit in a different region of the world, the success of such enterprises over the last 5 years empirically imply that such a conversation should be held in countries that suffer from similar trafficking related issues. As follows, the previously mentioned case studies offer a stepping stone for progress and idea culmination that should be more openly discussed. 

Social enterprises offer an economic avenue that undermines the psychological pressures of reintegration for victims of human trafficking. They are often trapped in a system that pressures them to give back to their communities and families in an economic manner when many of the opportunities to do so are nonexistent. However, by allowing them to invest directly in their communities, one may provide an additional avenue that undermines the power of traffickers. While these enterprises might only be the beginning of change and development in Nigeria, it is certainly a step away from the status quo, which has been empirically tragic. Unfortunately, while these forms of change may not offer a feasible solution to all Nigerians that are undergoing these issues, it may offer a step in the direction of change, starting at the local level, which may ideally contribute to broader change. The goal should be to improve opportunities at the local level so as to provide positive spillover at the national level. Above it all, it is certainly a necessity to link development and reintegration in order to better improve the economic opportunities of Nigerian citizens. While there is still more work to be done, the hope is to provide additional impetus to research and develop a system that needs it. What is needed now is a group of individuals willing to share new ideas on how to better tackle these issues, including those of trafficking victims themselves. Given communities open to this form of policy discussion, there is hope of dismantling the complex crime syndicates that exist today, even if it occurs one community at a time.


Davidson-Hunt, Iain  J. “Communities and Social Communities Enterprises in the Age of Globalization.” Accessed November 28, 2021. https://www.researchgate.net/profile/Iain-Davidson-Hunt/publication/242022559_Communities_and_social_enterprises_in_the_age_of_globalization/links/59662b30a6fdcc85dd3ba5ee/Communities-and-social-enterprises-in-the-age-of-globalization.pdf.

Ellis, Stephen. This Present Darkness: A History of Nigerian Organised Crime. London: Hurst and Company, 2018. 

Idemudia, Uwafiokun, Nnenna Okoli, Mary Goitom, and Sylvia Bawa. “Life after Trafficking: Reintegration Experiences of Human Trafficking Survivors in Nigeria,” 2021. https://www.emerald.com/insight/content/doi/10.1108/IJMHSC-03-2021-0023/full/pdf?title=life-after-trafficking-reintegration-experiences-of-human-trafficking-survivors-in-nigeria.

Lyman, Rick. “Slovak Village Prospers in Partnership with Roma Residents It Once Shunned.” The New York Times. The New York Times, September 9, 2017. https://www.nytimes.com/2017/09/09/world/europe/slovakia-roma-spissky-hrhov-integration.html.

Poveda, Sammia, Melinda Gill, Don Rodney Junio, Hannah Thinyane, and Vanessa Catan. “Should Social Enterprises Complement or Supplement Public Health Provision?” Social Enterprise Journal 15, no. 4 (2019): 495–518. https://doi.org/10.1108/sej-12-2018-0083.

“REINTEGRATION ASSISTANCE AT THE COMMUNITY LEVEL.” Accessed November 28, 2021. https://publications.iom.int/system/files/pdf/module_3.pdf.&nbsp;

“Social Enterprise.” Community, February 19, 2014. https://community-wealth.org/strategies/panel/social/index.html.

[1] Uwafiokun Idemudia et al., “Life after Trafficking: Reintegration Experiences of Human Trafficking Survivors in Nigeria,” 2021, https://www.emerald.com/insight/content/doi/10.1108/IJMHSC-03-2021-0023/full/pdf?title=life-after-trafficking-reintegration-experiences-of-human-trafficking-survivors-in-nigeria, 451.

[2] IUwafiokun Idemudia et al., “Life after Trafficking: Reintegration Experiences of Human Trafficking Survivors in Nigeria,” 2021, https://www.emerald.com/insight/content/doi/10.1108/IJMHSC-03-2021-0023/full/pdf?title=life-after-trafficking-reintegration-experiences-of-human-trafficking-survivors-in-nigeria, 452.

[3] Uwafiokun Idemudia et al., “Life after Trafficking: Reintegration Experiences of Human Trafficking Survivors in Nigeria,” 2021, https://www.emerald.com/insight/content/doi/10.1108/IJMHSC-03-2021-0023/full/pdf?title=life-after-trafficking-reintegration-experiences-of-human-trafficking-survivors-in-nigeria, 456.

[4] Stephen Ellis, This Present Darkness: A History of Nigerian Organised Crime (London: Hurst and Company, 2018), 183-184.

[5] “Social Enterprise,” Community, February 19, 2014, https://community-wealth.org/strategies/panel/social/index.html.

[6] Ibid.

[7] Ibid.

[8] Iain J Davidson-Hunt, “Communities and Social Communities Enterprises in the Age of Globalization,” accessed November 28, 2021, https://www.researchgate.net/profile/Iain-Davidson-Hunt/publication/242022559_Communities_and_social_enterprises_in_the_age_of_globalization/links/59662b30a6fdcc85dd3ba5ee/Communities-and-social-enterprises-in-the-age-of-globalization.pdf, 210.

[9] Iain J Davidson-Hunt, “Communities and Social Communities Enterprises in the Age of Globalization,” accessed November 28, 2021, https://www.researchgate.net/profile/Iain-Davidson-Hunt/publication/242022559_Communities_and_social_enterprises_in_the_age_of_globalization/links/59662b30a6fdcc85dd3ba5ee/Communities-and-social-enterprises-in-the-age-of-globalization.pdf, 210.

[10] Stephen Ellis, This Present Darkness: A History of Nigerian Organised Crime (London: Hurst and Company, 2018), 52.

[11] Ibid.

[12] Rick Lyman, “Slovak Village Prospers in Partnership with Roma Residents It Once Shunned,” The New York Times (The New York Times, September 9, 2017), https://www.nytimes.com/2017/09/09/world/europe/slovakia-roma-spissky-hrhov-integration.html.

[13] “REINTEGRATION ASSISTANCE AT THE COMMUNITY LEVEL,” accessed November 28, 2021, https://publications.iom.int/system/files/pdf/module_3.pdf.

[14] Ibid.

[15] Sammia Poveda et al., “Should Social Enterprises Complement or Supplement Public Health Provision?,” Social Enterprise Journal 15, no. 4 (2019): pp. 495-518, https://doi.org/10.1108/sej-12-2018-0083, 3.

[16] Sammia Poveda et al., “Should Social Enterprises Complement or Supplement Public Health Provision?,” Social Enterprise Journal 15, no. 4 (2019): pp. 495-518, https://doi.org/10.1108/sej-12-2018-0083, 4.

[17] Ibid.

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EU Enlargement to the Western Balkans – limited progress in 2021

By Marko Milenković PhD, MA, LLM (Cantab)

Marko Milenković is a research fellow at the Institute of Social Sciences Belgrade and an Affiliated research fellow at the Center for Constitutional Studies and Democratic Development (CCSDD) at Johns Hopkins University’s School of Advanced International Studies (SAIS) Bologna

This article was first published by Osservatorio sulle attività delle organizzazioni internazionali e sovranazionali, universali e regionali, sui temi di interesse della politica esteraitaliana – www.osorin.it – comint@sioi.org SIOI – Palazzetto di Venezia – Piazza di San Marco, 51 – 00186 – ROMA

Source: Eyes on Europe https://www.eyes-on-europe.eu/part-2-the-new-western-enlargement-strategy-changing-the-carrot-and-no-stick-diet/

2021 marks another year in the almost two-decade-long road of the Western Balkan region towards EU membership. It was marked by the continuing COVID crisis and some increase in EU interest in the region. However, it has not brought significant developments to the integration process of six (potential) candidates. In this short overview of 2021 developments, we will first give a brief account of the new accession negotiation methodology devised last year1, and then address the outcome of the 2021 EU-Western Balkan summit held in Slovenia in October 2021. Finally, we will offer a brief discussion of the EU Enlargement Strategy prepared annually by the European Commission andaccompanied by individual candidates’ progress reports.

All the countries of the WB region were given prospects of EU membership in 2003, but the EU integration process has since been long and hampered by numerous factors, most notably enlargement fatigue 2 . In the 2018 Enlargement Strategy, the European Commission anticipated possible WB enlargement for 2025, stressing that the EU’s enlargement policy must be “part and parcel” of the larger strategy to strengthen the Union by that year 3. However, it was accompanied by the assessment that only Montenegro and Serbia (candidates currently negotiating accession) would have the possibility of concluding the whole process by 2025, with no projection given for remaining four candidates – North Macedonia, Albania, Bosnia and Hercegovina, and Kosovo(*) –, none of which had opened negotiations at that date. Following the proposals put forward, mainly by France, for revamping the process in 2019, the Commission came up with the new Enlargement methodology in February 2020, with the idea of introducing more dynamism. The Commission envisaged groupingthe negotiating chapters in six thematic clusters: fundamentals; internal market; competitiveness and inclusive growth; greenagenda and sustainable connectivity; resources, agriculture and cohesion; external relations. The process was envisaged as giving a stronger political steer and increasing the involvement of member states, better predictability of the process (hence sixclusters) including improved clarity on the conditions and benchmarks to be achieved. The new methodology should result in the gradual “phasing in” of candidates in EU policies and increased access to funding throughout the process but would also include rolling back in the case of stagnation or backsliding in prospective members4.

Finally, the new methodology also assumes less opportunities to block the advancement of the process before the opening and closing of each of the current 35 negotiation chapters, as decisions are made for six clusters instead of single chapters.

The governments of both Montenegro (all 35 negotiation chapters opened) and Serbia (18 chapters opened) agreed to move to the new cluster format of negotiations at the first political intergovernmental conferences heldbetween the two candidate countries and the EU on 22 June 2021. As underlined by the Commission: «The firstintergovernmental conference with Montenegro under the revised methodology provided a political steer on accelerating work to meet the rule of law interim benchmarks – the next milestone necessary to advance in the accessionnegotiations. The first intergovernmental conference with Serbia under the revised methodology set out the path towardsopening clusters based on expected progress by the country, in particular on rule of law reforms»5.

The opening of negotiations with North Macedonia and Albania in March 2020 was a major development6, but noconcrete progress has been made since, i.e. no clusters have been opened by the member states. This has led the Commission to conclude that «[t]he delays in the official launch of accession negotiations with Albania and NorthMacedonia are having a negative impact on the credibility of the EU. Pending bilateral issues between Bulgaria and North Macedonia need to be resolved as a matter of priority. It is crucial that EU Member States conclude the discussions onthe Negotiating Frameworks without further delay and that the first intergovernmental conferences with Albania and North Macedonia are held as soon as possible and before the end of this year»7.

Finally, it is important to note that in June 2021, a political agreement was finally reached between the Counciland the European Parliament on the proposal for a Regulation on the Instrument for Pre-Accession Assistance (so called IPA III), and the Regulation was adopted on 15 September 2021. It is supposed to serve as an instrument for the enhanced economic and development involvement of the EU in the region following the 2021 decisions to be more involved and the challenges created by the COVID crisis.

On 6 October 2021, the heads of states and governments of the EU held the Brdo summit in Slovenia with the leaders of the Western Balkan candidates8, as a part of the “more political steering” of the integration process approach adopted in 2020 and thecommitment to hold high level summits with candidates on a regular basis. Expectations of the event were not high9, and the resulting Brdo Declaration doesn’t go far in promising perspectives of enlargement to the candidates.10

Indeed, the very discussion between member states on whether to use term “European perspective” or“enlargement” with current candidates, some even negotiating accession, comes as a stark warning of the magnitude ofEnlargement fatigue in the block. As underlined at the very beginning of the Declaration: «The EU reaffirms itsunequivocal support for the European perspective of the Western Balkans. […] The EU reconfirms its commitment to the enlargement process and its decisions taken thereon, based upon credible reforms by partners, fair and rigorous conditionality and the principle of own merits» (point 1).

The document places very little emphasis on the accession negotiations, insisting more on the increasing EU aid to the Western Balkans and regional initiatives that are, to a great extent, the result of EU facilitated processes. Importantly, the Declaration underlines that «[t]he EU is by far the region’s closest partner, main investor and principal donor. The unprecedented scale and range of this support must be fully recognised and conveyed by the partners int heir public debate and communication» (point 3) and that «[t]he EU, together with its Member States, has stood by the Western Balkans throughout the pandemic, with health and socio-economic support for the region to talling an unprecedented EUR 3,3 billion so far» (point 7), finally to conclude that «[f]ollowing the Leaders’ call at the Zagreb Summit, the EU put forward an Economic and Investment Plan (EIP) and guidelines for the Implementation of the Green Agenda for the Western Balkans. The Plan sets out a substantial investment package mobilising some EUR 30 billion for the region over the next seven years, comprised of EUR 9 billion in grant funding and EUR 20 billion in investments, leveraged by the new Western Balkans Guarantee Facility» (point 10). This message comes as a reminder that – even though some other major powers are increasingly present in the region, mostly through investments projects and big infrastructural loans – the EU still remains the most important trade partner as well as the biggest transformative power for the region, crucially influencing institutional change and promoting values of democracy and the rule of law.

The declaration also addresses the regional cooperation in the Balkans, with the reminder that «Western Balkans leaders are needed to deliver on their commitment to establish a Common Regional Market, as agreed at the Berlin Process Summit in Sofia in2020» (point 13). Coined as a «catalyst for deeper regional economic integration and a stepping stone towards the EU Single Market», it is structured around the four freedoms of movement, comprising also aspects of digital, investment, innovation and industry policy, being – in the words of the Commission – «the most ambitious regional integration effort to date in the Western Balkans»11. These efforts are somewhat duplicated by a parallel initiative, Open Balkan, which to date includes only three countries of the region – Albania, North Macedonia and Serbia – and which has moved forward in 202112. Finally, the summit Declaration calls upon WB partners to «make tangible and sustainable progress towards full alignment with EU foreign policy positions and act accordingly, including with positions in international fora as an important part of their European path» (point 19).

There are some sharp criticisms of the outcome of the latest EU-WB summit – «With no real progress in EU enlargement to the Western Balkans, or effective solutions to deal with the region’s fundamental problems, the Union’s promises of support and a shared future are starting to ring hollow. It is unclearwhere enlargement policy goes from here»13. However, there were some overall positive assessments of the summit and its conclusions14.

As every year, the Commission came up with the regular Enlargement Strategy and individual countries’ progress reports assessing their advancement in various areas of reforms and alignment with the acquis and EU policies15. This year’s documents could only attest to the slow progress of the EU integration process in the Western Balkans, givingaccounts of the most pressing problems the countries of the region are facing. The Strategy underlines that «[e]nsuring credible and sustainable reforms in the area of democracy remains a pressing challenge for the enlargement countries. The absence of genuine political will continued to be the main reason for the lack of substantial progress, or evenbacksliding»16. It is further underlined that, for the Balkans as a whole, limited or no progress overall was made in terms of freedom of expression, media freedom and pluralism as key pillars of a democratic society17. In terms of the region’s ability to assume the obligations of membership, varied assessments across countries and policies persist, with the evaluation that «[t]he Western Balkans are, in general, moderately prepared in many areas of the internal market»18.

In terms of the individual progress of candidates, the Commission offered different assessments. For Montenegro, the frontrunner in the accession negotiations, it concluded that «an overall balance is currently ensured between progress under the rule of law chapters on the one hand, and progress in the accession negotiations across chapters on the other»19. For Serbia, «an overall balance is currently ensured between progress under the rule of law chapters and normalisation of relations with Kosovo on the one hand, and progress in the accession negotiations across chapters on the other», and also welcomed Serbia’s fulfilment of the benchmarks to open cluster 3 (Competitiveness and inclusive growth) and cluster 4 (Green agenda and sustainable connectivity)20. For both North Macedonia and Albania, it concluded that the countries continue to fulfil the conditions to open accession negotiations 21. For Bosnia and Herzegovina, the Commission concluded that «the public political commitment of the authorities at all levels of government to the strategic goal of European integration has not been turned into concrete action, as political leaders continued to engage in divisive rhetoric and unconstructive political disputes», with the 14 key priorities from the Commission’s May 2019 Opinion on the country’s EU membership application still left to be met22. Finally, for Kosovo(*), it affirmed that «limited progress was made on EU-related reforms and SAA implementation»23

In line with the adoption of the new Enlargement Strategy, the EU High Representative for Foreign Affairs and Security Policy Josep Borrell, stated: «We have to maintain a credible enlargement process. This is a two-way street: The new methodology is a merit based approach. It puts a stronger focus on fundamental reforms, such as rule of law, fundamental freedoms, economy and the functioning of democratic institutions. Our partners need to address them, in the interest of their citizens and to advance on the EU path. And they need put aside their differences. On the EU side, we need to deliver on our commitments. The EU is not complete without the Western Balkans. It’s time we come together and unite in building a stronger Europe»24.

Bearing all the outlined developments in mind, as we have already proposed in last year’s OSORIN entry, it is time to also consider relations between the European Union and the Western Balkans in terms of differentiated integration25, not necessarily as (full) members but credibly included in various EU policies and benefiting both from EUtransformative power and the financial assistance to develop infrastructure and fully implement EU standards (such as those in the environment and climate domain). To that end, an interesting initiative has also emerged during 2021 calling for four step “staged accession” to the EU26, a model which should be given more attention by all stakeholders.

Overall, despite the continuing COVID-19 crisis and some smaller steps in various fields it can be concluded that 2021 was a relatively uneventful year in terms of EU-WB relations with no real progress in the Enlargement process being made. Discussions over references to European prospects or enlargement in the Declaration of the EU summit might be one more sign that enlargement is gradually being abandoned, and that after 20 years the European perspective of the region composed of various sectoral initiatives is being rethought.

Dicembre 2021


1 For a more detailed analysis see: M. Milenković, EU Enlargement Strategy 2020 – Paving the Way for Differentiated Integration?, in OSORIN,2020, www.osorin.it/uploads/model_4/.files/54_item_2.pdf?v=1608022440.

2 See inter alia: S. Economides, From Fatigue to Resistance: EU Enlargement and the Western Balkans, Dahrendorf Forum IV Working Paper No.17, 20 March 2020

3 See further: European Commission, A credible enlargement perspective for and enhanced EU engagement with the Western Balkans, 6 February 2018,COM (2018) 65 final.

4 European Commission, Enhancing the accession process – A credible EU perspective for the Western Balkans,

5 February 2020, COM (2020) 57 final.

5 European Commission, 2021 Communication on EU Enlargement Policy, Strasbourg, 19 October 2021, COM (2021) 644 final, 2.

6 Council of the European Union, Council conclusions on enlargement and stabilisation and association process – Albania and the Republic ofNorth Macedonia, 25 March 2020, COM (2020) 57 final.

7 European Commission, 2021 Communication on EU Enlargement Policy, Strasbourg, 19 October 2021, COM (2021) 644 final, 25.

8 See further: www.consilium.europa.eu/en/meetings/international-summit/2021/10/06.

9      See:    www.reuters.com/world/europe/eu-no-longer-agrees-balkan-membership-guarantee-diplomats-say- 2021-09-28.

10      Brdo    Declaration,    6     October     2021.    Available    at:     www.consilium.europa.eu/en/press/press- releases/2021/10/06/brdo-declaration-6-october-2021.

11      See further: ec.europa.eu/neighbourhood-enlargement/enlargement-policy/policy-highlights/common- regional-market_en.

12         See         further:        www.euractiv.com/section/politics/short_news/vucic-rama-and-dimitrov-agree-on- implementation-mechanism-for-open-balkans-initiative.

13 C. Stratulat, EU enlargement to the Western Balkans – Three observations, EPC, 2021. Available at: epc.eu/en/Publications/EU-enlargement-to-the-Western-Balkans-Three-observations~4392d4.

14 S. Subotić, Assessing the 2021 Brdo Declaration Going Beyond the Original Expectations, CEP, 2021.

Available at: cep.org.rs/en/blogs/assessing-the-2021-brdo-declaration.

15 European Commission, 2021 Communication on EU Enlargement Policy, Strasbourg, 19 October 2021 COM (2021) 644 final.

16 Ibid., p. 13.

17 Ibid., p. 8.

18 Ibid., p. 17.

19 Ibid., p. 27.

20       Ibid.,      p.      28.       Opening      of       the      cluster      4       was       anticipated     on      8       December.https://www.euractiv.com/section/politics/short_news/eu-to-soon-open-cluster-4-in-negotiations-with-serbia/

21 Ibid., p. 28.

22 Ibid., p. 29.

23 Ibid., p. 30.

24      See: ec.europa.eu/neighbourhood-enlargement/news/2021-enlargement-package-european-commission- assesses-and-sets-out-reform-priorities-western_en.

25 Marko Milenković, EU Enlargement Strategy 2020, cit.

26 CEPS, CEP, A Template for Staged Accession to the EU, 2021. Available at: www.ceps.eu/ceps- publications/a-template-for-staged-accession-to-the-eu.

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