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Tanja A. Börzel, Yasemin Pamuk, Andreas Stahn, Fighting Corruption Abroad. The EU's Good Governance Export in:

Diana Schmidt-Pfister, Sebastian Wolf (Ed.)

International Anti-Corruption Regimes in Europe, page 47 - 69

Between Corruption, Integration, and Culture

1. Edition 2010, ISBN print: 978-3-8329-5846-6, ISBN online: 978-3-8452-2573-9, https://doi.org/10.5771/9783845225739-47

Series: Schriftenreihe des Arbeitskreises Europäische Integration e.V., vol. 70

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47 Fighting Corruption Abroad. The EU’s Good Governance Export Tanja A. Börzel, Yasemin Pamuk and Andreas Stahn 1. Introduction With the End of the Cold War, good governance has been mainstreamed into the development strategies of major international organisations, such as the United Nations or the World Bank (Weiss 2000; Adam/König 2001; Hill 2006). The European Union (EU) is no exception. In fact, the EU has been among the first organisations to write good governance, together with human rights, democracy, and the rule of war, into its cooperation agreements with third countries. In its Communication on a Comprehensive EU Policy Against Corruption the EU has acknowledged that the promotion of good governance constitutes an essential element of a comprehensive anti-corruption policy (European Commission 2003f). Consequently, good governance has developed into an integral part of the EU’s foreign policy and is backed up by considerable financial and human resources. Following the comprehensive approach of the United Nations Development Programme the EU defines good governance as the ‘transparent and accountable management of human, natural, economic and financial resources for the purpose of equitable and sustainable development’ (European Commission 2003f: FN 46). Good governance is closely linked to clear decision-making procedures, transparent and accountable institutions, the rule of law and, in particular, the fight against corruption (European Commission 2003f: 21). Accordingly promoting good governance in accession, candidate and other third countries, in particular in the neighbourhood regions, constitutes the external dimension of the EU’s framework for the fight against corruption. This chapter aims at shedding light on the quality of the EU’s efforts to promote good in its various relations with third countries. Focusing on the EU’s development policy, the European Neighbourhood Policy (ENP), its relations with the countries of the Western Balkans, and enlargement policy, we attempt to trace the EU’s good governance configuration within these different contexts. In particular we ask with whom (channel of influence) and what exactly (content) the EU is seeking to promote. Lastly, we cast a look on the mix of instruments the EU applies in order to promote good governance in its external relations. Simultaneously, we cast a look on the mix of instruments the EU applies in order to promote good governance in its external relations. In the first part of our contribution we develop an analytical framework that conceptualises good governance along two analytical dimensions: 1) The specific good governance content that is promoted (input vs. output-related objectives), and 2) the 48 channels of influence used by the EU in order to promote these objectives (intergovernmental vs. transnational track). This analytical framework identifies four ideal type good governance configurations that allow us to systematically map the similarities and differences in the approach. In part two we will then apply the analytical framework to the EU’s various external relations in order to identify the specific good governance approach. In the last part we will finally systematise and contextualise our findings. 2. Unpacking Good Governance: Towards an Analytical Framework ‘Bad governance’ in its different manifestations motivates external actors to promote good governance in the first place. Given its paramount negative impact on political, economic and societal institutions, corruption is considered to lie at the heart of bad governance (Spinellis 1996; Phongpaichit/Baker 2002). Economically, corruption and arbitrary rule are detrimental to a competitive market economy, impair socioeconomic development, and deter foreign investment (Mauro 1995; Rose-Ackerman 1996; Frank 2004). Politically, corruption undermines the political and public institutions in a democratic state by favouring certain parts of the population and excluding others from the participation in the political process and the distribution of public goods (Johnston 1999; 2005; Karklins 2005; Kitschelt/Wilkinson 2007). Finally, the existence of pervasive corruption has a corrosive effect on the territorial integrity of the state and the political community itself, bearing the danger of social unrest (civil war) and state collapse (Scott 1972; UNDP 2006; Shen/Wiliamson 2005). Therefore, the main target of external good governance promotion are countries, in which informal institutions and high-level corruption pervade domestic decisionmaking processes and prevent societies to profit from the virtues of effective and legitimate governance. In these settings, good governance promotion either aims at promoting participation and civil oversight over the allocation of resources affecting the relationship between the government and its citizens, or it seeks to strengthen the capacities of the state to effectively fight corruption (Karklins 2005). The following two sections will discuss the relationship between good governance, democracy and statehood. 2.1 Good Governance and Democracy While good governance has gained prominence in the literature, the concept remains ill defined and contested. In order to structure the existing notions of good governance, we adopt a broad understanding of governance as institutionalised modes of coordination through which collectively binding decisions are adopted and implemented (Mayntz/Scharpf 1995; Scharpf 1997). Distinguishing different normative contents of these ‘institutionalised modes of coordination’ can make a first analytical cut. 49 On the one part, studies informed by developmental considerations largely associate good governance with the setting of a sound administrative and regulatory framework, mainly provided by the state (Fuster 1998; Adam 2001). This narrow concept of good governance thus mainly concentrates on output-oriented reform principles of efficiency and effectiveness. These principles that aim at making policies more predictable and effective mainly translate into reform goals targeting state performance, such as a sound public sector management and the effective fight against corruption (Fuster 1998; Conzelmann 2003; Hill 2006). On the other part, studies that have profound intersections with the literature on democratisation and external democracy promotion, attach a wider political connotation to good governance (Tolentino 1995). In this latter sense, good governance also encompasses the more demanding principles relating to input-oriented reform objectives such as the respect for human rights and democracy (Burnell 2000; Carothers 2004; McFaul 2004-2005). Both the notions are linked by paying attention to the rule of law as a safeguard of institutions in both dimensions (König 2001; Magen/Morlino 2008). The distinction between these two different perspectives on good governance is not meant to formulate opposed concepts that exclude each other. In fact, both the notions of good governance are inextricably linked with each other. The distinction shall only serve to identify the EU’s dominant line of good governance. Accordingly, this chapter adopts a broad perspective on good governance that integrates both strands of literature. Our analytical framework draws on the distinction between the two aspects of legitimacy that were formulated by Fritz W. Scharpf in the context of the European Union (Scharpf 1999). We thus equate output legitimacy with the narrow (regulatory) approach to good governance, whereas input legitimacy corresponds with the wider (political) connotation of the concept. Put differently, output legitimacy refers to the extent to which the performance, or ‘output’, of political institutions is perceived to be in the interest of the people. In this view, good governance is about solving societal problems and promoting common welfare in an effective and efficient manner. Input legitimacy, in turn, refers to the extent to which political decisions are derived from the preferences of the people that are affected by them. Accordingly, this notion of good governance places emphasis on the principles of participation and vertical accountability. In terms of Lincoln’s famous description, output-oriented reform goals put emphasis on (state) governance for the people and input-oriented reform goals envision governance by the people. 2.2 Good Governance and Statehood A second analytical cut concerns the role of the state-society relations in promoting good governance. The emergence of good governance in the development debate at the end of the 1980s marks a paradigm shift from ‘getting the market right’ to ‘getting the institutions right’ (Menzel 1995; Fuster 1998). The creation of a regulatory environment is a decisive precondition for achieving sustainable development to be 50 complemented by the effective and purposeful management of primarily economic resources. Finally, functioning state institutions are key to ensure the delivery and safeguarding of the rules of the game as well as the effective management of public resources (Theobald 2001; Hill 2006). Consequently, the state and its administrative capacities play a crucial role in the good governance debate (Pierre 1999; Murphy 2002; Dolzer 2004). At the same time, there is growing scholarly interest in the role of non-state actors in governance. On the one hand, state failure and the absence of hierarchy in international politics raised the question, whether ‘new modes of governance’, i.e. patterns of cooperation between state and non-state actors offer an alternative to hierarchical and monopolised decision-making (Risse/Lehmkuhl 2007). The main assumption of this kind of research is that the pooling of resources of state and non-state actors such as interest organisations or private businesses might contribute to an efficient, effective, and even inclusive formulation and implementation of collectively binding norms (Héritier 2003). Non-state actors can foster the legitimacy of governance, ‘hold governments accountable’ and ‘form the base upon which a truly democratic political culture can be build’ (Ottaway/Carothers 2000: 4). Moreover, the literature on international democracy promotion focuses on the specific role of nongovernmental organisations, political parties, and independent media as well as prospects and limitations to strengthen such (domestic) actors from the outside (Mendelson/Glenn 2002; Carothers 2006; Raik 2006). Thus, depending on which actors they focus on, external actors seeking to promote good governance may use two different channels of influence (Diez/Stetter/ Albert 2006; Schimmelfennig 2007). They can choose the way of ‘intergovernmental interaction’. Or they can seek to trigger and influence domestic reform processes ‘through transnational processes via societal actors in the target state’ (Schimmelfennig 2007: 6). 2.3 Approaches of Promoting Good Governance Based on the two dimensions described in the previous section, we can develop an analytical framework in order to qualify the good governance approach of external actors. Accordingly, we assume that, on the one hand, the actor can choose between different contents of good governance – placing stronger emphasis on either input- or output-related reform goals. On the other hand, it can invoke different channels of influence, either targeting the intergovernmental channel (state actors) or the transnational channels (non-state actors). Combining these two analytical foci, we arrive at a two-by-two matrix that allows us to differentiate between four ideal-type approaches of good governance promotion: 51 Figure 1: Four approaches of external good governance promotion Source: authors. The first approach of effective government addresses the intergovernmental channel and seeks to promote output-oriented objectives, focusing on the administrative core of good governance. This essentially entails improving governance through strengthening the government and its administration. The second approach of effective governance places emphasis on output-oriented reform goals as well, but at the same time either aims at including non-state actors in the implementation process in order to produce better policies by pooling resources and increasing acceptance. Or it tackles the building and strengthening of non-state organisations that help better implement policies. The third approach of democratic government again relies on the intergovernmental channel. However, while promoting input-oriented objectives, the external actor targets the state to have it establish and safeguard a public sphere in which interests can be articulated and aggregated. Finally, the fourth approach of democratic governance combines the transnational channel with input-oriented reform objectives. This participatory approach wants to empower non-state actors in the making of public policies in order to improve the democratic quality of decisionmaking processes. In the next section we will discuss the EU’s various external policy framework in light of this analytical framework. 3. Good Governance in the EU’s External Policies The EU has increasingly made good governance a point of reference in its external relations. Since good governance originated within the international development agenda, at first the concept entered the EU through its Directorate General (DG) Development and quickly spread into other foreign policy areas. It is therefore of interest to shed a light on the EU’s good governance approach within development policy. 3.1 Development Policy – the Gateway into the EU Until the end of the 1980s, EU development policy used to be about granting preferential trade agreements and financial aid to the former colonies of member states. Assistance centred on the Lomé Agreements, the first of which was signed in 1975 between the EU and the African, Caribbean, and Pacific Group (ACP countries). The Output Input Intergovernmental Effective government Democratic government Transnational Effective governance Democratic governance 52 Lomé system provided the ACP countries with preferential access to the Common Market, privileging the states to export a variety of products custom free without having to reciprocate by opening their markets for the EU (General System of Preferences). In this way, EU development policy concentrated on economic issues and gave lesser concern to political issues, such as democracy, human rights, and the rule of law. This changed with the emergence of the global good governance discourse. In 1991, the European Council of Luxembourg (European Council 1991) responded to the international good governance discourse by adopting a resolution that stressed the importance of good governance for sustainable development. The Resolution firmly linked good governance to: [S]ensible economic and social policies, democratic decision-making, adequate governmental transparency and financial accountability, creation of a market-friendly environment for development, measures to combat corruption, as well as respect for the rule of law, human rights, and freedom of the press and expression (European Council 1991). It was DG Development that took the lead in further developing the concept and mainstreaming it into the EU’s other external relations (European Commission 1998a; 2003b; e). The first conceptual proposals put forth by the DG Development closely followed the World Bank’s narrow understanding of good governance (Beck/Conzelmann 2004), treating it as separate from political principles, such as human rights, democracy and the rule of law. This distinction was also reflected in the Cotonou Agreement of 2000: [I]n the context of a political and institutional environment that upholds human rights, democratic principles and the rule of law, good governance is the transparent and accountable management of human, natural, economic and financial resources for the purposes of equitable and sustainable development. It entails clear decision-making procedures at the level of public authorities, transparent and accountable institutions, the primacy of law in the management and distribution of resources and capacity building for elaborating and implementing measures aiming in particular at preventing and combating corruption (Art. 9). With regard to the channel of influence, the Cotonou Agreement spells out good governance in a broader sense. While still referring to the pivotal role of state actors for the development process and focusing on output legitimacy (Art. 4), the agreement emphasises that ‘apart from the central government […] the partnership shall be open to different kind of other actors’ (Art. 2). More specifically, non-state actors are encouraged to participate in the political dialogue (Art. 8; Art. 15; Art. 17). Furthermore, the EU directly supports non-state actors through assistance (Art. 9). The stronger use of the transnational channel is the more amazing, as it is the first time that the EU makes non-state actors and their participation a formal objective of its development cooperation. However, it is in line with the increasing acknowledgement by the European Commission that non-state actors can play a key role in the EU’s development policy, which goes beyond improving effective implementation (output legitimacy). Accordingly, the Commission stated that the involvement of non-state actors is vital for ‘strengthening the democratic fabric of society’ and leads to ‘greater equity’ and ‘inclusion of the poor in the benefits of economic growth’ (European Commission 2000a: 28). Moreover, it strengthens the people’s ownership 53 and responds to their needs (European Commission 2000b: 5). The Cotonou Agreement strengthened good governance in important aspects, as it – unique for all the EU’s contractual relations with third countries – threatens negative conditionality in the case of corruption (European Commission 1998b). In subsequent years, the European Commission broadened its understanding of good governance. In 2003 and 2006, it issued two major Communications on Good Governance and Development that aimed at mainstreaming good governance into the EU’s foreign policy frameworks (European Commission 2003d; 2006b). Although the EU still focused on output legitimacy and state primacy, in the 2006 Communication input-related objectives and the role of civil society were also strengthened (European Commission 2006b). Furthermore, good governance was closely connected to the fight against corruption. However, according to the EU anticorruption measures should not be assigned to state actors alone, but also should involve civil society and the media. Besides the introduction of a transnational track, the notion of good governance – and the fight against corruption – broadened as well, as it also began to put emphasis on political elements such as multiparty democracy, electoral competition and the support for parliamentary oversight (European Commission 2006b). In sum, while the EU’s development policy had initially started with a narrow concept of good governance that essentially focused on effective government; with the stronger involvement of non-state actors and a more substantial focus on inputrelated reform objectives, it was subsequently broadened to include effective and to some extent even democratic governance. The EU policy towards ACP countries differs from the other external policy frameworks with regard to two important aspects. Firstly, it is the only framework that explicitly stipulates corruption as a violation of the essential elements of the contractual relations. Secondly, besides state actors, who represent the EU’s main partners, the involvement of civil society actors is nonetheless institutionalised within the instrument of the political dialogue. 3.2 Good Governance in the European Neighbourhood Generally speaking, the EU external policy vis-à-vis its neighbourhood has evolved over the years in several steps, each envisaging a deepening of relations. Prior to the introduction of ENP, the EU had set up two independent ‘regional policies’ for the Newly Independent States (NIS) of the former Soviet Union, as well as for the Mediterranean countries. Although according to the official phrase both the regions do carry the same strategic importance, the southern dimension has always been competing with its eastern counterpart (Barbé/Izquierdo 1997). Before coming to the 54 ENP, we will briefly sketch the good governance approach of these predecessor policies.1 3.2.1 The Two Neighbourhoods: EMP/MEDA and TACIS After the break up of the Soviet Union in 1990, the EU was quick to recognise its successor states. In order to support the NIS in coping with the consequences of the ‘triple transition’ (Offe 1991) in democracy, market, and statehood, in 1991 the EU launched an ad hoc programme, the Technical Assistance to the Commonwealth of Independent States (TACIS), which provided bilateral grants for financing technical assistance for the support of institutional capacity and advancement of economic reforms. In the late 1990s, the EU sought to further enhance its relations with the TA- CIS countries by signing bilateral Partnership and Cooperation Agreements. With minor variations, these agreements were designed to support the transition of the NIS to full-fledged market economies, to enhance institutional performance, and, to a lesser extent, to foster liberal democracies (Hillion 2000; Petrov 2002). The EU’s good governance approach to its eastern neighbourhood mainly provided for outputrelated reform goals. TACIS placed strong emphasis on strengthening the capacities of state actors and thus supporting effective rather than inclusive policy-making. The Euro-Mediterranean Partnership (EMP) was introduced in the 1990ies in order to re-launch the EU’s cooperation with its southern neighbours. In response to the rise of new security challenges in 1995 the EU decided to upgrade its multilateral relations with the Mediterranean and introduced the Barcelona Process, which further institutionalised the multilateral relations (Gomez 2003; Bicchi 2006). In addition to the multilateral framework, the EU signed Euro-Mediterranean Association agreements with several Mediterranean partner countries. The EU’s good governance approach with regard to the Mediterranean countries reiterated the great emphasis on creating effective and efficient institutions. Bilateral relations with the Mediterranean countries mainly built on technical and financial assistance, which was provided through the MEDA programme. By contrast to TA- CIS, both state and non-state actors were subject to broad institution- and capacity building measures. Moreover, the MEDA programme actively involved civil society actors as reform partners. This strategy in the first place aimed at promoting the acceptance of externally induced reform policies on the part of those who were affected by it.2 On the other hand, however, the expertise provided by civil society representatives and institutions purposed to compensate the lacking capacities of public au- 1 For a detailed discussion of the EU's good governance approach within EMP/MEDA and TACIS cf. Börzel/Pamuk/Stahn (2007). 2 This intent was also corroborated by the EU’s very broad definition of civil society actors, which included traditional local authorities, rural and village groups, and interest groups such as trade unions and business organisations. 55 thorities and administrative bodies. Finally, by empowering civil society the EU tried to counterbalance authoritarian tendencies. In sum, both the predecessor policies of the ENP primarily sought to enhance effective government, as it placed strong emphasis on the increase of output legitimacy and the use of the intergovernmental channel. On close examination the involvement of civil society also aimed at building effective institutions rather than increasing democratic participation. Nonetheless, the EU’s approach to actively empower nonstate actors in the EMP/MEDA countries was quite distinct from that of the TACIS countries. Compared to its eastern counterpart, in the southern dimension the very dominant intergovernmental channel was thus mitigated by the complementary use of the transnational track. Accordingly, at least in the Mediterranean the EU also provided for effective governance by actively introducing non-state actors to the reform process. 3.2.2 The European Neighbourhood Policy The ENP provides financial and economic incentives in order to facilitate a highly ambitious reform agenda. Similar to its predecessor policies, it places major emphasis on the partner countries institutional performance. Nonetheless, while the EU offers economic integration and deeper political cooperation, it withholds the ‘golden carrot of membership’ (Magen 2006a). In 2003 ENP was launched with the Communication on Wider Europe in response to the geographical and political changes that took place in the course of the EU enlargement process (European Commission 2003b). In order to turn its near abroad into an area of security, stability and prosperity, the policy framework drew heavily on the methods and instruments that had proven so successful in promoting good governance in the Central Eastern European countries (CEEC). ENP thus was an attempt to use ‘institutional learning and strategic adoption from enlargement policies to expand [its] foreign policy domain’ (Kelley 2006: 48). The idea was to set in place a comprehensive framework for a privileged relationship with all the countries bordering the EU, including the NIS of the former Soviet Union and the counties of the southern Mediterranean (European Commission 2003c). In 2004, the Commission published the ENP Strategy Paper, which included the conceptual core of the neighbourhood policy (European Commission 2004a; Wissels 2006). The Strategy Paper expressis verbis referred to good governance. Although no clear definition of the concept was provided, the reform objectives set out in the paper endorsed several constitutive elements of the broader good governance concept (European Commission 2004a). A third document on Strengthening the ENP (European Commission 2006a) followed in December 2006, which closely linked good governance to the fight against corruption. Owing to the view that corruption and weak governance were among the main causes for the considerable development failures in the ENP partner countries, the EU explicitly demanded the ‘appropriate 56 participation’ (European Commission 2006b: 8) of civil society representatives in the reform process. Thus, while output legitimacy still featured prominently in the ENP framework, over time the EU increasingly embraced reform measures that purposed inclusive decision-making. Moreover, since 2004 the EU has increasingly required ENP partner governments to consult and cooperate with non-state actors and civil organisations in the formulation and implementation of the national reform agendas (European Commission 2004c; 2006a; 2007). Between 2004 and 2006 the EU and the partner countries concluded jointly agreed Action Plans that copy the logic of the accession partnerships in the EU’s enlargement policy (Kelley 2006; Magen 2006b). These documents define a broad range of short and medium term reform priorities, the implementation of which is to be monitored and discussed regularly within the framework of the political dialogue. Furthermore, in 2007 the EU replaced TACIS with a new assistance programme, the European Neighbourhood and Partnership Instrument (ENPI). ENPI was designed to implement the objectives stipulated in the Action Plans. By contrast to TACIS, however, it explicitly enumerated good governance in the context of human rights and democracy (Council of the European Union 2006). The strengthening of the capacity to formulate and enforce effective policies within the framework of a sound legal and regulatory framework still plays a pivotal role in the EU’s efforts to promote good governance. Accordingly, the involvement of civil society in principle aims at enhancing the efficacy of reforms and not the democratic quality of the regime. Yet, over time, the EU’s initially narrow approach to good governance has broadened with the introduction of the transnational track and more input-related reform objectives. At the same time, the EU has recognised that the involvement of civil society is vital in order to achieve sustainable reform outcomes. Next to the strengthening of state capacities, the ENP also prescribes institutional safeguards in order to constrain government authority and prevent it from acting arbitrarily. Equally, the emphasis on the respect for the rule of law, in particular through the institutional strengthening of the judicial system, aims at facilitating a legal framework that shall ensure the liability and predictability of state behaviour. While these goals still remain focused on output legitimacy, the EU increasingly acknowledges that their realisation requires a minimum democracy. As a result, besides the emphasis on effective government the EU’s also targets effective governance and to a lesser extent democratic government. 3.3 Good Governance in the Stabilisation and Association Process In light of the success of Eastern enlargement, the EU has heavily drawn on the lessons learned in its attempt to stabilise yet another region that has been vital to its geopolitical interests: the Western Balkans. The EU pre-accession strategy for the Western Balkans has been closely following the CEEC trajectory combining financial incentives with trade preferences in the shadow of (positive) membership condi- 57 tionality and linking it to financial and technical assistance (Kelley 2006; Magen 2006a). To address the conflict situation at the beginning of the 1990s, the EU initially had focused on humanitarian and emergency assistance through its Humanitarian Aid Office. After the Kosovo conflict had broken out in 1998, the EU changed its approach. The Stabilisation and Accession Process launched in 1999 was to provide a bilateral contractual framework to bring the Western Balkans into the enlargement process. The Pact introduced a political dialogue organised in three ‘working tables’ on democratisation and human rights, economic reconstruction and development, and security and justice and home affairs. If the candidates made sufficient progress in terms of political and economic reform and administrative capacity building the EU offered further integration into European structures. This was the first formal step towards accession and subsequently the countries were given candidate status and could enter the so-called European Integration Partnerships, which were explicitly modelled on the Accession Partnerships in the Eastern enlargement process. In 2000 the EU introduced CARDS (Community Assistance for Reconstruction, Development, and Stabilisation) as a proper instrument of financial assistance for the Western Balkans. The cooperation framework also provided for technical assistance by extending ‘twinning’3 and TAIEX (Technical Assistance Information Exchange Office). Next to funding immediate projects of political and economic reconstruction, the Commission intended to grant selective incentives, such as autonomous trade preferences as a reward for specific reforms (Meurs/Yannis 2002; Vachudova 2003; Grabbe 2006). Overall, the EU reform agenda for the Western Balkans focuses on the building of a fully functioning state capable of formulating and enforcing sound policies. Due to the membership perspective, the fight against organised crime and corruption plays a crucial role. The EU’s emphasis on institutional performance and output legitimacy has been reinforced by the so-called European (Integration) Partnerships introduced in 2003. Through these partnerships, the EU seeks to enhance its support for institution-building, improve political co-operation and provide the possibility for the countries of the Western Balkans to participate in Community programmes (European Commission 2003a). In developing its relations with the Western Balkans, the EU has subsequently upgraded good governance. Accordingly the corresponding programming documents spell out a separate chapter on ‘Good Governance and Institution Building’. This chapter links good governance to three main areas: justice and home affairs, public administration and judiciary. The fight against organised crime and corruption features prominently in all three areas. The EU’s focus on effective institutions was reiterated in the newly established Instrument for Pre-Accession Assistance (IPA). The IPA programme consists of five 3 Initially developed in the enlargement context, the EU twinning programme has been exported to the CARDS recipient countries in 2004. Twinning projects are designed to promote the secondment of civil servants from one or more EU member states to work as advisers to beneficiary institutions of the recipient country in order to exchange good practices and to transfer technical expertise. 58 components, including transition assistance and institution building, cross-border, and regional cooperation, human resources and rural development (Cf. IPA 2006: Art. 3). Although the Regulation itself does not mention good governance directly, all programming documents include explicit references. Accordingly the promotion of ‘good governance with particular assistance to fighting corruption’ was considered a major crosscutting issue of the future cooperation partnerships. However, the fight against corruption was made subject to awareness building campaigns involving the civil society much stronger than in the policy framework for the EU’s neighbourhood. Equally, the CARDS programme renders civil society organisations explicitly eligible for Community assistance (CARDS 2000: Art. 2b). In sum, the EU’s approach to good governance in the Western Balkans prioritises effective government in the same way as in its neighbourhood. By contrast to ENP, however, good governance and institution building in the Western Balkans places much greater emphasis on input legitimacy, thus including democratic government to the EU’s reform agenda. Similar to ENP, cooperation within the CARDS and later IPA framework is made conditional on the respect for the principles of democracy, the rule of law, human rights and fundamental freedoms. EU assistance to the Western Balkans, however, receives much more specific attention through monitoring, evaluation and control mechanisms. In order to stabilise a region ridden by ethnic violence and lingering conflicts, the EU increasingly paid attention to issues such as minority rights, ethnic reconciliation and the consolidation of civil society. As a result, the use of the transnational channel was institutionalised in order to advance input as well as output legitimacy (democratic and effective governance). In highly fragmented societies, such as Bosnia and Herzegovina, particular attention is paid to the involvement of civil society organisations in the democratic stabilisation and social and economic development of the country. Yet, defining the functions and competences of non-state actors within the cooperation framework does not necessarily institutionalise the demand for the involvement of civil society. To what extent the EU actually invokes the transnational channel to promote good governance is an empirical question that lies beyond the scope of this paper. 3.4 EU Enlargement Policy: Promoting Good Governance by Default Over the past 15 years, EU enlargement policy has developed into the most comprehensive foreign policy framework for encouraging domestic reform in non-member states. Successful transformation of former communist countries with centrally planned economies into fully fledged Western style democracies and consolidated market economies was at the core of eastern enlargement (Grabbe 2006). Furthermore, the EU’s policy towards the CEEC has implicitly endorsed the promotion of good governance principles and elements both in a narrow as well as in a wider sense. Immediately after the breakdown of communism, the European Council of Strasbourg in 1989 offered the CEEC trade and cooperation agreements, an intensified political dialogue and financial support in order to overcome the divisions of Europe. 59 Initially discussing and introducing various elements of a close association, the EU soon could no longer ignore the strong desire of former communist countries to ‘return to Europe’ by joining the EU (Schimmelfennig 2003; Lippert 2004). In 1993, the Copenhagen European Council formally accepted the potential membership of all associated CEEC – provided that they achieved (1) a functioning market economy; (2) stable institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities and (3) the ability of implementing the Acquis Communautaire (Copenhagen criteria). Bilateral association agreements, signed between 1991 and 1996, became the framework for the applicant countries’ integration into the EU. They envisioned the promotion of trade and the gradual establishment of a free trade area, as well as the support of economic reforms through the institutionalisation of political dialogue and the provision of financial and technical assistance. Pre-accession support was first of all meant to help candidate countries comply with the Copenhagen criteria. Financial and technical assistance was provided through the PHARE programme, mainly for the purposes of economic reform and capacity building in the public sector. PHARE did not only encompass direct financial support in the form of grants and loans but also twinning of officials and shortterm deployment of experts. Conditionality and assistance have been flanked by political dialogue to deal with problems of non-compliance (Schimmelfennig/Sedelmeier 2005). Although not mentioning good governance directly, the Copenhagen criteria contain all essential elements of a broad concept. While respect for human rights and democratic principles is supposed to directly increase input legitimacy, the implementation of the Acquis requires applicant countries to improve both efficiency and effectiveness of their national administrations, thus leading to more output legitimacy. Guaranteeing the rule of law serves both input and output legitimacy. With 10 CEEC lined-up for accession, the EU started to put more emphasis on the administrative core of good governance. In 1994, the European Council of Essen outlined a pre-accession strategy for the adoption of the Acquis and a regular monitoring of successes and failures in each country (European Council 1994). One year later, the European Council of Madrid demanded to speed up administrative reforms (European Council 1995), which came close to introducing a new criterion for accession (Lippert 2004) and, thus, pointing to the very core of good governance. From 1998 onwards, the European Commission regularly issued comprehensive monitoring reports on each country that both assessed progress with regard to the political and economic criteria as well as to the adoption of the Acquis. While democratic institutions never became a serious issue during the accession negotiations, the EU was increasingly concerned by the slow progress regarding judicial reforms, the fight against corruption and administrative capacity building (European Commission 2001b; 2002). The European Commission and the Council paid greatest attention to the effective implementation of the Acquis beyond the mere transposition into national law. With the democratisation processes consolidating, the promotion of good governance in the CEEC applicant countries was narrowed down to increasing the 60 effectiveness and efficiency of policy making (output legitimacy). Romania and Bulgaria are cases in point. The accession of the two countries was postponed by two years due to insufficient progress in administrative capacity building and the fight against corruption (Gabanyi 2005; 2006). In sum, the EU enlargement policy increasingly focused on improving the output legitimacy dimension of good governance by encouraging administrative reforms through (mostly positive) conditionality and assistance. In order to qualify for accession, countries have to comply with the political dimension of good governance. Since accession negotiations were only opened when democratic consolidation was well under way in the CEEC, the EU naturally concentrated on their capacity to effectively implement and apply the Acquis Communautaire. The European Commission strongly encouraged accession countries to involve non-state actors in the adoption of more than 10.000 EU laws to ensure both greater effectiveness and legitimacy of the accession process. Yet, the one-sided nature of the accession process, the enormous implementation load, time pressure, and the strong emphasis on conditionality rendered accession into a predominantly technical and administrative process of rule-transfer (Lippert 2004; Schimmelfennig/Sedelmeier 2004; Goetz 2005). With the accession negotiations firmly set on an intergovernmental track, neither the Commission nor the governments of the accession countries have made any effort to systematically involve non-state actors in the adoption of Acquis (Börzel 2007). 3.5 EIDHR – The Exception to the Rule In addition to the various regional policies, the EU has developed an additional thematic instrument that is specifically designed for good governance promotion in a wider sense. The European Initiative for Human Rights and Democracy (EIDHR) was established in 1994 as a tool to promote democracy and human rights. In 1999, the EU passed two Regulations in order to establish a coherent framework for the EU’s global efforts in developing and consolidating democracy, human rights, civil liberties, and the rule of law. One Regulation covered operations within the framework of EU development cooperation. The other replaced democracy assistance within regional programmes, such as PHARE Democracy, TACIS Democracy, and MEDA Democracy with EIDHR. EIDHR specifically focuses on democracy and human rights. It furthermore includes administrative accountability and the fight against corruption as major objectives (Cremona 2004). For the programming period 2002-2004, in which the Commission tightened the thematic focus of EIDHR and concentrated the funds on 32 so called focus’ countries from all geographical partnerships, four areas of intervention were defined: (1) the strengthening of democratisation, good governance and the rule of law, promoting the abolition of death penalty (2), combating torture and supporting the International Criminal Court (3), and fighting racism, xenophobia and discrimination (4) (European Commission 2001a). The first bundle of issues, which are most related to the promotion of good governance, accounted for about 67% of the 61 total financial resources (European Commission 2004b). Between 2004 and 2006, the thematic focus areas were replaced by so called ‘campaigns’ that by large covered similar issues as the focus areas did. With regard to good governance, however, the particular emphasis on ‘strengthening the legal system and institutions’ or ‘governance’ virtually vanished. Instead, even more attention has been attached to supporting an institutional and legal environment that is necessary for the development of pluralism and a flourishing civil society. EIDHR clearly endorses a broad concept of good governance, which complements the rather restricted focus in the geographical partnership programmes and cooperation instruments to a significant degree. Unlike democracy programmes within MEDA, PHARE or TACIS, EIDHR firmly embeds the administrative core of good governance in a political dimension that forms the funding priorities. The major difference lies in the exclusive reliance of EIDHR on transnational channels to promote its objectives. Projects funded by EIDHR can be implemented with partners other than national governments (non-governmental and international organisations) and, most importantly, do not even necessitate the consent of the latter. EIDHR thus allows to circumvent the governments of the recipient countries and can be used even if other programmes have been suspended, e.g. in cases of violations of human rights. In sum, the EIDHR is unique in the EU since, unlike other programmes and financial instruments, it explicitly seeks to promote governance rather than government. Not surprisingly, it has been the European Parliament which pushed for the establishment of EIDHR and also successfully opposed the plans of the Commission to abolish EIDHR in 2007 (Börzel/Risse 2007). It remains to be seen to what extent the integration of good governance and democracy promotion will result in the emergence of a new approach of promoting effective and in particular democratic governance. 4. Conclusion This paper aimed at shedding light on the EU’s attempts to promote good governance in its relations with third countries. In particular, we have been interested in the ways in which the EU has incorporated good governance into its various foreign policy frameworks. Overall, we have found that the EU’s approach to good governance places great emphasis on institutional performance in the context of state building. However, in some cases the EU is also trying to complement this narrow approach with a broader notion of good governance focussing on principles such as participation and accountability in the context of human rights and democracy. Although mostly connected to the latter, the fight against corruption is a key crosscutting issue that plays an important part in both the concepts. Our findings show that increasing output legitimacy through strengthening (central) state institutions lies at the core of the EU’s good governance agenda. The ENP 62 is a strong case in point for this prevailing effective government approach. Despite an incremental opening-up towards input-related objectives, the strengthening of public institutions and their absorption capacity remains the centrepiece of EU’s good governance approach. Nonetheless, the channels of influence the EU is seeking to address in order to implement its reform agenda vary in dependence of the specific country context. Whereas in the cooperation with ACP countries the involvement of non-state actors constitutes a specific requirement, in the eastern dimension of ENP the involvement of non-state actors has been comparatively less prevalent and mostly concentrates on informal consultation mechanisms. Interestingly, in the southern dimension of ENP the involvement of civil society is also more pronounced where it is explicitly linked to good governance. The stronger use of the transnational channel may be explained by the greater proximity between the EU’s Mediterranean policy and development policy, not only because of the level of social-economic development, but also because Mediterranean countries explicitly lack a membership perspective. In most cases the EU addresses non-state actors in order to increase output legitimacy. This is particularly the case in developing countries where the state is weak or largely absent. Thus, in our terms within the framework of classical development policy the EU good governance approach combines effective government with effective governance. The less EU external policies are related to development policy, however, the less explicit are references to good governance in general. This has been most obvious in the Eastern enlargement process, where the term good governance is hardly ever mentioned. However, this does not mean that good governance is irrelevant to accession countries. Quite on the contrary, the proximity to the EU (membership) strongly correlates with implicit good governance requirements in terms of a relatively high degree of democracy and well-developed statehood. As a result, democratic aspects become more specific in the relations with the potential and accession candidates. Once the countries have received a membership perspective, there is a distinctive shift towards the goal of democratic government. The change of the EU’s approach to the Western Balkans is a strong case in point. Similar to the Newly Independent States of the former Soviet Union, at first the EU mainly supported the countries of the Western Balkans in their transition to functioning free market economies. The strengthening of effective government was to ensure a stable regulatory environment based on secure property rights, competition rules and bankruptcy regulations. With the granting of membership status, the EU changed its approach and started to pursue a strategy of institutional restructuring focused on the creation of state institutions bound by the rule of law. Next to the strengthening of state capacities, the EU prescribed institutional safeguards in order to constrain government authority and prevent it from acting arbitrarily. The establishment of an effective legal and administrative framework was to ensure the predictability and accountability of political actors. It also aimed at preventing particularistic actors from arbitrarily circumventing or changing the rules of the game at the expense of other actors or of society as such. This approach called for the existence of democratic state institutions. While the EU 63 sought to strengthen input legitimacy through stronger participation of non-state actors (democratic governance), the reform priorities also emphasised democratic government in terms of strengthening the institutions of the rule of law and the separation of powers. Nonetheless, even in its relation with potential members, the EU’s reform agenda mainly built on creating a sound state capable of guaranteeing institutional stability and of formulating and implementing effective policies. It may have been the bias on effective government within the EU’s external policy frameworks that caused the European Parliament to insist on an additional financial instrument that focused on non-state actors and input legitimacy. Covering all regional partnerships, EIDHR is the only financial instrument that exclusively focuses on democratic governance. The growing demand for the involvement of civil society actors caused the EU to exchange views with non-state actors on an informal basis. Additionally, the EU increasingly required target governments to create opportunities for the involvement of non-state actor in decision-making and implementation procedures. EIDHR thus functions as a crosscutting cooperation instrument that complements the choice of good governance configurations available to the EU. The following table summarises our findings with regard to the EU’s specific good governance approaches: Figure 2: Good governance configurations in the EU’s external policies Contents Channels of influence Approach EU Policy Input Output State Non-state Development (ACP) Weak Strong Strong Strong ENP Former Soviet Union Mediterranean Weak Weak Strong Strong Strong Strong Weak Medium Accession (Western Balkans) Medium Strong Strong Medium Enlargement (CEEC) Strong Strong Strong Weak EIDHR Strong Medium -- Strong Source: authors. 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Good Governance und die Perzeption der Weltbank, Baden-Baden. Tolentino, A. S. (1995) Good Governance through Popular Participation in Sustainable Development, in Ginther, K./Denters, E./d. Waart, P. J. I. M. (eds.) Sustainable Development and Good Governance, Dordrecht, 137-149. Vachudova, M. A. (2003) Strategies for Democratization and European Integration in the Balkans, in Cremona, M. (ed.) The Enlargement of the European Union, Oxford, 141-160. Weiss, T. G. (2000) Governance, Good Governance and Global Governance: Conceptual and Actual Challenges, Third World Quarterly 21, 794-814. Wissels, R. (2006) The Development of the European Neighbourhood Policy, Foreign Policy in Dialogue 6, 7-16. 69 Converging EU and US International Anti-Corruption Policies Holger Moroff Domestic anti-corruption laws and policies have been ubiquitous throughout most countries since centuries. International anti-corruption policies are a US invention and were initiated through the Foreign Corrupt Practices Act (FCPA) of 1977 which sanctions the conduct of US companies abroad.1 It is an example of an international policy through the extraterritorial effect of national law which is based on the citizen principle or registration principle for companies. The other three kinds of international anti-corruption policies are conditionality principles of aid providing donor countries or International Financial Institutions (IFIs, e.g. International Monetary Fund / IMF, World Bank, regional development banks), multilateral conventions to sanction corruption abroad and finally international policy advice programmes by governments, international organisations and nongovernmental organisations (NGOs). To understand these policies, their approaches and functioning, one needs to look at both their internal logic and the reasoning behind their justifications. To understand a convergence of anti-corruption policies among various actors, one needs to study how their reasons and justifications have changed over time and how various actors have come to accept a common or similar global anti-corruption norm. For the emergence of a multilateral anti-corruption regime the convergence of perceptions, norms and interests between the US and the European Union (EU) was pivotal. This paper focuses on the historical contexts of the discourses giving rise to US and EU anti-corruption policies in the 1970s and 1990s. Economic aspects of creating a level playing field for international companies in a global market place seem to have dominated the interest driven discourses during both decades. A normdriven discourse became relevant only in the 1990s with developmental and state building concerns at its heart. The skilfully negotiated combination of both discourses through the Organisation for Economic Co-operation and Development (OECD), United Nations (UN) and IFIs with the help of NGOs like Transparency International (TI) made it possible to multilateralise the FCPA under US leadership and firmly establish anti-corruption policies in IFIs and international organisations (IOs) as well as mainstream it into all kinds of development, international investment and anti-crime policies. A facilitating factor has also been that legally binding ‘hard law’ regimes were limited to the technical, economic and legal aspects of clear cut 1 Great Britain had a Commonwealth anti-corruption provision dating back to 1915 and West Germany had 1958 anti-corruption law, sanctioning the bribery of NATO officials as well as some bilateral agreements pertaining to foreign customs officials at border crossings. None of them had the global reach of an international regime (Moroff 2005: 478).

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Zusammenfassung

In dieser aktuellen und interdisziplinären Analyse der internationalen Antikorruptionsregime werden mit Schwerpunkt Europa ausgewählte staatenübergreifende Bemühungen der letzten Jahre zur Eindämmung der Korruption einer kritischen Bestandsaufnahme unterzogen. Die Beiträge stammen aus der Politikwissenschaft, Rechtswissenschaft, Soziologie, Wirtschaftswissenschaft und von PraktikerInnen.

Der Band vereinigt sowohl qualitative als auch quantitative Analysen und berücksichtigt darüber hinaus kulturwissenschaftliche Fragestellungen im Rahmen seiner vier Teile: „The European Dimension“, „Political and Legal Instruments“, „Culture, Perceptions, and Experiences” sowie „Practitioners’ Perspectives”.

Mit Beiträgen von: Tanja A. Börzel, Donald Bowser, Ben Elers, Angelos Giannakopoulos, Åse B. Grødeland, Leslie Holmes, Georg Huber-Grabenwarter, Anja P. Jakobi, Anne Lugon-Moulin, Bryane Michael, Holger Moroff, Yasemin Pamuk, Diana Schmidt-Pfister, Gefion Schuler, Andreas Stahn, Dirk Tänzler, Michael H. Wiehen und Sebastian Wolf.