Norm diffusion as a tool to uphold and promote EU values and interests: A case study on the EU Japan Mutual Legal Assistance Agreement
| Date | 01 December 2020 |
| DOI | 10.1177/2032284420938140 |
| Published date | 01 December 2020 |
| Subject Matter | Articles |
Article
Norm diffusion as a tool to
uphold and promote EU
values and interests:
A case study on the EU
Japan Mutual Legal
Assistance Agreement
Anne Weyembergh
Universit´
e Libre de Bruxelles (ULB – Institute for European Studies), Belgium
Irene Wieczorek
Durham Law School, University of Durham, United Kindgom
Abstract
The article takes the European Union (EU)-Japan Mutual Legal Assistance (MLA) Agreement as a
case study to analyse the EU success in pursuing its art 3(5) TEU mandate of upholding and
promoting its values and interests; and to what extent the EU effectively relied on norm diffusion
to this aim. The EU has arguably been, at least partially, successful in exporting its legal standards on
‘improved judicial cooperation’ in the text of the Agreement, especially a legal basis for acquiring
testimony via videoconference, whereby to uphold its interest into security; and in including
clauses allowing it to uphold its values of respect of fundamental rights. In particular, in having
clause allowing the EU to refuse assistance if death penalty is involved, the EU arguably not only
acted as a norm exporter, but it also set a new international legal standard, through which it also
hoped to promote its values by triggering a change in Japan’s retentionist policy. An analysis of 10
years of implementation of the Agreement shows, however, a more nuanced picture, highlighting
the importance to look at both the norm emergence and the norm socialisation phase when
assessing the success of the EU as a norm exporter. The institutionalisation of EU-Japan MLA
cooperation through the conclusion of the agreement has triggered a stark increase in volume and
speed of cases, contributing to higher security. However, legal, practical and cultural factors hinder
the implementation in practice of EU legal standards on acquisition of evidence and the promotion
of the EU abolitionist agenda.
Corresponding author:
Irene Wieczorek, Durham Law School, Palatine Centre, Stockton Rd, Durham DH1 3LE, Belgium.
Email: irene.wieczorek@durham.ac.uk
New Journal of European Criminal Law
2020, Vol. 11(4) 439–466
ªThe Author(s) 2020
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DOI: 10.1177/2032284420938140
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Keywords
Norm diffusion, EU values, EU security interests, death penalty, EU-Japan Mutual Legal Assistance
Agreement, improved judicial cooperation
Introduction
The Treaty on the European Union (TEU) gives the European Union (EU) a specific mandate for
its external action. Article 3(5) TEU establishes that ‘In its relations with the wider world, the
Union shall uphold and promote its values and interests ...’ (emphasis added). Article 21(2)a TEU
reiterates that the EU shall safeguard its values, fundamental interests, security and integrity in its
external action. EU values are li sted in art 2 TEU and notably include freedom, democracy,
equality, the rule of law and respect for human rights. EU interests conversely have been inter-
preted as ‘non-normative [concepts], and concerned rather with power politics ...’.
1
They can
include objectives such as ensuring internal security on the EU territory to which cooperation with
third states can contribute.
2
Among various tools to pursue its external action mandate, one of the key strategies the EU is
known to rely on is ‘norm diffusion’.
3
This exercise, also referred to as norm export, or rule-
transfer,
4
implies attempting to have international legal standards or third states’ national legisla-
tion modelled on EU legal standards.
5
Diffusion of EU legal standards can serve to create a legal
level playing field between the EU and its partners to ensure that cooperation can take place
without the EU having to lower its own standards. This allows the EU to uphold its values when
cooperating.
6
But, according to art 3(5) TEU, norm diffusion is also a self-standing foreign policy
goal. Classic examples are the long-standing EU campaign toward a world-wide abolition of death
penalty
7
; the promotion of fundamental rights more generally in third states through the insertion
conditionality clauses in Trade agreements,
8
or in Common Foreign and Security Policy (CFSP)
agreements and association ag reements
9
; or the EU engagement in multilater al fora, like the
1. M Cremona, ‘Extending the Reach of EU Law. The EU as an International Legal Actor’ in M Cremona and J Scott (eds),
EU Law Beyond Borders (OUP, Oxford 2019) 64, 68.
2. Ibid 69. On external action as a tool to pursue internal policy goals, S Lavenex, ‘EU External Governance in ‘‘Wider
Europe’’’ (2004) 11(4) J Eur Public Policy 680, 694.
3. M Cremona and J Scott, ‘Introduction’ in Cremona and Scott (n1), EU Law Beyond Borders (OUP, Oxford 2019) 1.
4. E Fahey, The Global Reach of EU Law (Routledge, London 2016) 4.
5. The terms norm diffusion, norm promotion, norm export or rule transfer will be used interchangeably. For a more
nuanced understanding of the various terms, across different disciplines, see Fahey (n 4), 4 et ff, and the literature there
mentioned. For a mapping of the phenomenon and its relations with extraterritorial application of European Union (EU)
Law, see Cremona and Scott (n2), EU Law Beyond Borders (OUP, Oxford 2019) 64, 68.
6. See, for an extensive treatise on this phenomenon in different policy areas including environment protection, consumer
safety, data protection and competition policy, A Bradford, The Brussels Effect. How the European Union Rules the
World (OUP, Oxford 2020).
7. On this see extensively the section ‘‘Theimportance of the death penalty ground for refusal: the EU abolitionist agenda’’.
8. KL Meissner and L McKenzie, ‘The Paradox of Human Rights Conditionality in EU Trade Policy: When Strategic
Interests Drive Policy Outcomes’ (2019) 26(9) J Eur Public Policy 1273, 1275.
9. M Cremona, ‘Values in EU Foreign Policy’ in M Evans and P Koutrakos (eds), Beyond the Established Legal Orders:
Policy Interconnections Between the EU and the Rest of the World (Hart, Oxford 2011) 275, 303.
440 New Journal of European Criminal Law 11(4)
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