European Union

Sabina Frizell is a research associate in the Civil Society, Markets, and Democracy Program at the Council on Foreign Relations. After yesterday’s assassination of the Russian ambassador, Turkish officials were quick to place blame on Fetullah Gulen, an exiled religious leader and one of President Recep Tayyip Erdogan’s strongest critics. Erdogan is sure to use the attack as yet another justification to silence dissenting voices in the name of security. His ongoing crackdown further diminishes Turkey’s prospects for joining the European Union (EU), following the European Parliament’s overwhelming vote on November 24 to suspend membership negotiations. While the European Parliament’s vote was largely symbolic, it adds urgency to the question of whether, after decades of Turkey’s slow progress toward membership and ten-plus years of stop-and-start negotiations, the EU should continue membership negotiations. Most analysts have focused on what ending the talks would mean for the EU-Turkey migrant deal, Turkish democracy, and already-deteriorating human rights under Erdogan. However,  the effect on trade issues has been largely overlooked. Turkish and EU economies are deeply intertwined despite mounting political tensions. In considering membership negotiations, the EU must take trade into account, as ending talks would undermine these mutually beneficial economic linkages. Fifty Years in Waiting Understanding the current crisis requires an appreciation of Turkey’s long, faltering path toward membership—and of the negotiations’ futility. With or without the talks, Turkey is highly unlikely to become an EU member in the foreseeable future. The EU has always been reluctant to grant Turkey membership, due partially to legitimate concerns about governance, but also to cultural and religious prejudice. EU membership negotiations are based on the Copenhagen Criteria, composed of thirty-five chapters outlining the principles and standards with which all candidate countries must comply. Throughout the 2000’s, Turkey made substantial progress on these criteria. It solidified what the EU deemed a “functioning market economy” that could withstand competitive pressure within Europe, and afforded greater freedom and rights to ethnic and religious minorities. But Europe justifiably expressed concern about overly broad antiterrorism laws, insufficient measures to fight corruption, and the lack of an independent judiciary. However, there is also evidence that Europeans hold Turkey to more stringent standards than other candidate countries. As Turkey made progress on the Copenhagen Criteria, perhaps faster than expected, some European politicians pointed to “cultural differences” and claimed that Turkey is in some indelible way “not a European country.” The hesitation to support Turkey’s membership revealed anti-Muslim sentiment that likely undermined the accession process all along. In light of this reluctance, Erdogan’s backtracking on democratic progress makes accession nearly impossible. In the past month, Erdogan’s government has gone further than ever to quash dissent by dismissing thousands of workers, shutting down dozens of news outlets, and jailing journalist and opposition leaders. The ruling Justice and Development Party (AKP) looks set to issue a referendum that could allow Erdogan to stay in office until 2029, and Erdogan raised the possibility of reinstating the death penalty—which would be a deal-breaker for the EU. Trade Matters Though negotiations are currently at an impasse, they help to maintain fraught but vital trade ties between Turkey and the EU. Without the talks, the cornerstone of their trade relationship, the EU-Turkey Customs Union could crumble, harming both economies. The Customs Union, established in 1995, eliminated customs duties and other import restrictions on trade between Turkey and the EU. Though several major sectors were exempt, the union was a boon to the manufacturing sector for both parties. It increased trade between the EU and Turkey fourfold and triggered a similar rise in foreign investment flows to Turkey. Research shows that Turkey improved its competitive advantage for dozens of different products since 1995. The union also provided an impetus for broader trade facilitation and customs reform, which helped Turkey open up to the world and achieve 6 to 9 percent growth in gross domestic product (GDP) from 1995 to 2005. For the EU, Turkey became an increasingly important part of supply chains. German companies especially rely on Turkey to produce unfinished parts of goods that are then imported and incorporated into final products. Germany’s metal, chemical, and automobile sectors all draw heavily on Turkish imports. Despite its benefits, the Customs Union is an unequal agreement. Ankara is obliged to comply with the EU’s trade agreements with third-party countries and open up to those markets—but as a non-EU member, it is not granted a seat at the negotiating table. This leaves Turkey deprived of the ability to govern its own trade future. The union was intended as an interim step toward full membership. But if the EU takes membership off the table, it is hard to imagine that Erdogan would continue to accept these debilitating conditions indefinitely. What would happen if membership talks were suspended and the Customs Union abolished? On the EU side, the move would fragment manufactured goods production. For Turkey, the effects would be much more significant. About 60 percent of its exports are to Europe, representing 12.5 percent of GDP. Diminished ties with its top trade partner could threaten not only Turkey’s economy, but its long term security. Research shows that countries with open economies are less likely to experience internal conflict—and given the Syrian civil war’s spillover and Turkey’s ongoing conflict with the Kurds, the country’s security is already tenuous. As Turkey’s security is tied to that of Europe, maintaining stability should be a top priority for the EU. Recent coverage of EU-Turkey talks tends to ignore consequences for trade, and by extension, Turkish stability. Freezing negotiations and thus endangering the Customs Union would damage Turkey’s already-flailing economy. Amid Turkey’s democratic retreat, it may be too late for Europe to shed its prejudice and seriously consider Turkey’s candidacy. However, ending talks now would be a mistake without a day-after alternative to ensure trade endures.

Niall Henderson is an Interdepartmental Program Assistant at the Council on Foreign Relations. On September 14, Ukraine initiated arbitration against the Russian Federation for violations of the UN Convention on the Law of the Sea, with specific reference to access of energy resources off the coast of Ukraine and Russian-annexed Crimea. This development follows the Russian seizure of Crimean oil rigs in the Black Sea in late 2015, and the installation of rigs bearing Russian flags in the area more recently. Regardless of the outcome of the litigation, the escalation of Russian-Ukrainian tensions has serious consequences for European energy security. Ukraine lies at a critical juncture between Europe and Russia, and therefore its ability to resist Russian energy securitization has widespread implications for the European Union (EU) as well as for U.S. strategic options in the region. In September 2016, the EU imported 53 percent of its total energy, with natural gas imports from Gazprom (the energy titan whose majority ownership is the Russian government) increasing by 20 billion cubic meters from 2010 to 2015. In sum, over a third of the EU’s oil and gas are imported from Russia. Forty percent of this passes through Ukraine, leading to the precarious vulnerability that the EU is now struggling to surmount. Using energy as a political weapon, Russia has cut off gas to Ukraine multiple times in so-called “gas wars” in 2006 and 2009. The resulting disruptions resulted in severe fallout for the EU overall—the 2009 shutdown, for example, resulted in a complete cutoff of all Russian gas to Europe for two weeks in the middle of January. European governments were forced to scramble for alternative fuels, close factories, and declare national states of emergency. In the city of Sarajevo, Bosnia and Herzegovina, alone, seventy thousand apartments were completely without heat in below freezing temperatures. The role of Russian energy manipulation vis-à-vis Ukraine increased significantly after the annexation of Crimea. Following the invasion, Russia seized a natural gas terminal in the Ukrainian town of Strelkovoye (less than five miles from the Crimean border), later manipulating its gas outflows. The 2015 “Black Energy” cyber attacks on Ukrainian power distribution centers in the western region of Ivano-Frankivsk left over 230,000 without power. With sufficient reason to blame Russia, as well as strong findings from Ukrainian intelligence services indicating Russian responsibility, the attacks demonstrate the continued efforts by Russia to convey and maintain control of energy supplies. More overtly, Gazprom’s current Nord Stream II proposal constitutes a Russian attempt to diversify its control and ability to manipulate energy. The pipeline would go directly from Russia to Germany, notably bypassing Ukraine amidst the country’s efforts to increase domestic production and sourcing from Europe. However, the existing Nord Stream I pipeline is only operating at 50 percent capacity, rendering the actual transportation value of Nord Stream II useless, and revealing its underlying political drivers. To combat its energy insecurity the EU has taken steps towards reducing the region’s vulnerability to Russian energy control and manipulation. Of particular note is the 2014 Energy Union, intended to synchronize EU distribution networks and diversify energy sources as well as the October 2014 stress tests to check the EU’s ability to handle a cutoff of Russian gas transported through Ukraine. However, these efforts are not sufficient. Earlier this year, the EU commissioner for climate action and energy, Miguel Arias Cañete, highlighted how much is left to be done. He claimed: “We are still far too vulnerable [to disruption of gas supplies]. With political tensions on our borders still on a knife edge, this is a sharp reminder that this problem is not just going to go away.” EU coordination ills and differing priorities on Energy Union goals plague the EU’s ability to truly ensure its energy security in the face of Russian incursions. Furthermore, the regulatory body in charge of enforcing Energy Union policy, the Agency for the Cooperation of Energy Regulators, was originally only able to offer “opinions” and “recommendations” with no coercive power. Though it has since adopted such power, it has only issued three binding decisions. Since the 2009 formation of the joint U.S.-EU Energy Council, transatlantic energy security has been a stated objective of the United States. The most recent statement from the body, released in May, highlights the importance of Ukraine as a transit hub and calls for improvement of EU energy security. As the United States increases its exports of natural gas (estimates indicate the United States could match Russian exports to Europe within ten years) as well as oil, thanks to the lifting of a forty-year ban, the stage is set for the United States to change the balance of EU-Russian energy transactions. However, this all comes in the face of the United States’ own concerns over its energy dependency on the Middle East. Additionally, as tensions with Russia escalate over collapsed negotiations on Syria, the United States will have to clarify just how far it is willing to go in reference to Special Envoy for International Energy Affairs Amos Hochstein’s statement that “energy security and economic security in Europe is directly linked to our concern for [U.S.] national security, and we are committed to that.”

Apple and its allies in the U.S. Treasury and Congress would have you believe that this week’s ruling by the European Commission that the company must pay some $14.5 billion in taxes owed to Ireland and other governments is an assault on one of America’s most innovative and successful companies. In fact, the case is not really about Apple at all – it is about Ireland and other governments, both national and local, that are willing and eager to offer whatever tax breaks and other subsidies are needed to attract corporate investment. That is the very definition of a global “race to the bottom.” and it is a big problem not just for Europe but for the United States and the world. The U.S. government should be standing with Europe on this issue, not against it. The background of the case is both complicated and simple. It is complicated because of the byzantine series of tax maneuvers that Apple undertook to ensure that it paid a tax rate on its European profits that, according the European Commission, fell from just 1 percent in 2003 to a mere 0.005 percent in 2014. Ireland eagerly facilitated these maneuvers in order to encourage investment by Apple, which has created about 6,000 jobs in the country. Disentangling Apple’s tax planning was no easy task – a Senate investigation in 2013 ran into hundreds of pages describing such exotic tax dodges as the “double Irish with a Dutch sandwich.” But it is also simple because Apple is doing what every other well-managed company in the world is doing – trying to maximize its returns by minimizing its tax bill through whatever legal means are available. The scofflaw here is not Apple, but rather Ireland. Its economic growth strategy is built around attracting investment by mobile multinational companies by offering rock-bottom corporate tax rates, and then aiding and abetting when companies scheme to lower their tax bills still further. The result of such behaviors by many governments is that corporate tax payments have been falling sharply around the world. Ireland’s headline tax rate of 12.5 percent is a fraction of the U.S. top rate of 35 percent, but corporate tax rates have been falling almost everywhere in the world. In the 1980s, the United States had one of the lowest statutory corporate tax rates among the advanced economies; today it has the highest. And the actual rates paid by companies are far lower. That leaves more of the bill for schools, roads, fire, police and the military to be picked up by individual taxpayers. For the United States, it has become extremely difficult for the government to tax the foreign profits of big corporations at all. As we showed in our recent book How America Stacks Up: Economic Competitiveness and U.S. Policy, roughly one-quarter of all foreign profits are reported in “tax haven” jurisdictions like Ireland. And U.S. tax law is structured so that no tax is paid to Uncle Sam as long as the profits are held offshore – Apple alone has currently parked more than $200 billion outside the United States, and U.S. corporations collectively are holding more than $2 trillion overseas. Where does the U.S. interest lie here? According to the U.S. Treasury, in a statement this week, the ruling “could threaten to undermine foreign investment, the business climate in Europe, and the important spirit of economic partnership between the U.S. and the EU.” It has pledged to flight the decision. Apple itself has accused the Commission of trying to “rewrite Apple’s history in Europe, ignore Ireland’s tax laws and upend the international tax system in the process." Both Apple and the Irish government are appealing the ruling. Certainly the U.S. government should be trying to encourage successful companies like Apple, and to advocate for them if they are faced with discriminatory practices abroad. But the Treasury is also responsible for the budget of the U.S. government, which means ensuring that all taxpayers – including U.S. corporations – are paying a reasonable share of tax. Apple’s maneuvers mean not just less tax paid to European governments, but less tax collected by the U.S. government as well. The issue is a classic collective action problem. All governments in the world (including many U.S. state governments which similarly lavish tax subsidies on big companies) would be better off with common rules that discouraged such practices. But in the absence of rules, each government has an incentive to try to cut its taxes ever lower and to offer special tax holiday in order to attract job-creating investment. That leaves corporations wealthier, while governments – and the public services they provide – grow poorer. As I argue in my forthcoming book Failure to Adjust: How Americans Fell Behind in Global Economic Competition, the absence of agreements restraining these sorts of investment subsidies is the biggest hole in global trade rules. The United States and other countries have negotiated all sorts of binding international arrangements – including the controversial Investor-State Dispute Settlement provisions – that prevent governments from discriminating against foreign investors. But there are essentially no rules to prevent governments from offering sweetheart tax deals and other subsidies to attract corporate investment, even though such subsidies violate free market principles and badly distort investment decisions. The European Union has done more than any other entity to try to enforce some common rules. Its “state aids code” spells outs clearly that member governments are forbidden from offering the sort of selective tax treatment that Apple appears to have received. The goal is to create a level playing field for all European countries that are similarly trying to attract investment. Those rules make it fairer for companies as well, especially small ones that lack Apple's ability to negotiate special deals.  As the Commission wrote in its ruling on the Apple case, the special treatment it received in Ireland “gives Apple a significant advantage over other businesses that are subject to the same national taxation rules.” Ireland is not alone in having violated those rules – the Commission has also gone after Luxembourg, Belgium and the Netherlands over tax breaks for companies such as Fiat and Starbucks. Instead of bashing Europe, the United States should be standing with the Commission in trying to build better global rules for tax competition – such as through the OECD’s Base Erosion and Profit Shifting (BEPS) initiative – and then ensuring those rules are vigorously enforced. As the global champion of free markets, the United States should be out in front in trying to ensure that investment goes to those places that offer the best opportunities for successful businesses rather than allowing companies to be lured by competition-distorting subsidies. There is a final irony in the U.S. position on the tax issue. The Obama administration – which is hoping to pass the new Trans-Pacific Partnership (TPP) trade agreement and to negotiate a similar deal with Europe – has been pushing back against the arguments of trade critics that such deals weaken national sovereignty and may endanger national consumer or product safety regulations. Certainly, global arrangements can tie the hands of national or state governments, sometimes in unwanted ways. Apple has seized on that argument by accusing the Commission of “striking a devastating blow to the sovereignty of EU members states over their own tax maters.” But what opponents of these trade deals and other international agreements miss is that they can also prevent governments from doing stupid things that harm the interests of their citizens – like eliminating taxes on wealthy corporations to attract investment or raising protectionist tariffs to serve some narrow corporate agenda. The EU ruling this week was a small blow against stupid, self-defeating government policies. The United States should be applauding. This article originally appeared on LinkedIn.com.

The shocking victory of the “Leave” campaign in Thursday’s referendum was a massive repudiation of the elite-driven European project and a testament to the enduring pull of national sovereignty in an age of global anxiety. It is a momentous decision that will reverberate well beyond the British Isles. Besides posing an immediate, existential crisis for the European Union and the United Kingdom itself, the outcome will embolden skeptics of international institutions and multilateral cooperation in the United States. For the European Union, the referendum is a wake-up call that may have come too late. For decades, the EU has suffered from a dramatic deficit of democracy, as well as of loyalty. Throughout the continent, “Brussels” has long been shorthand for officious, unaccountable Eurocrats meddling in everything from fisheries to the proper shape of bananas. In an effort to close this deficit, the EU and its predecessors created several new institutions, most notably the European Parliament (EP), headquartered in Strasbourg. But the EP lacks real power, and voter turnout in its elections is dismal. The EU—too often distant, opaque, and unresponsive—commands little allegiance among its 500 million inhabitants. These dynamics have been especially corrosive in Great Britain. The UK joined the EU party late (in 1973), after centuries of splendid isolation and imperial grandeur. And it has always been the EU’s “awkward partner.” The British have enjoyed perks of the common market, as well as visa-free travel to holiday in Malaga, but their primary allegiance has and always will be to the nation. Their leaders have reinforced public cynicism, repeatedly using the EU as a scapegoat while promising, in the manner of (soon-to-be former) Prime Minister David Cameron, to “fix” it. The British vote bodes ill for the EU’s future. For decades the bloc’s leaders have seized on the crisis of the day to deepen integration, arguing that the only solution was “more Europe.” That dynamic has run its course. The EU is mired in an ungainly halfway house between a confederation of sovereign states and a federal, even supranational, union. National governments retain many of their powers but delegate others, such as immigration and human rights policies, to the center. That scenario might endure in a smaller grouping of the original Six—Germany, France, Italy, and the Benelux countries. But it is clearly unsustainable in the contemporary EU, a continent-spanning behemoth encompassing twenty-eight member states. The EU’s dramatic, post-Cold War enlargement made eminent economic and geopolitical sense. But a more heterogeneous bloc is also a far more unwieldy one, as divergent national interests and political cultures complicate agreement on common policies. These shortcomings have been on dramatic display in recent years, as the EU has flailed in formulating joint responses to the eurozone crisis and the flood of refugees to its shores. For the first time in its history, the EU faces a real prospect of unraveling. Great Britain will not be the last country to hold such a referendum, or to demand major adjustments in its relations with Brussels. (Already, Marine Le Pen of France’s National Front has insisted on a similar vote.) For the bloc to survive, the continent’s elected leaders must heed the will of the people and renegotiate political bargains among EU institutions, member states, and citizens. The most likely outcome will be a “multi-speed” Europe that allows member states and their citizens greater flexibility to opt in or opt out of particular arrangements and initiatives. For some this may mean more Europe, for others less. Regardless, the accent must be on accountability and transparency. Great Britain, meanwhile, may be in for a rude surprise of its own. In an ironic outcome, Brexit may cause the disintegration of the United Kingdom itself. The Scottish National Party (SNP), which lost a hard-fought referendum on independence for Scotland in 2014, will surely insist that another vote be held promptly on that same question. And given that Scots voted overwhelmingly to “Remain” on Thursday, their English brethren will have no grounds to deny them the exercise of their own popular sovereignty as an independent nation. Britain’s choice, finally, will reverberate in the United States. While most commentators have focused on potential global economic turmoil, given London’s prominence in financial markets, the political implications for U.S. global leadership may be profound. “Brexit” will surely reignite simmering domestic debates over how to balance the defense of U.S. national sovereignty with the imperative of international cooperation. On the one hand, we live in an era of global challenges—from climate change to transnational terrorism, from pandemic disease to financial turbulence—that no nation can manage on its own. On the other, conservative nationalists like John Bolton regularly warn us that global institutions like the United Nations, or proposed treaties like the UN Convention on the Law of the Sea, place unacceptable restrictions on our national sovereignty. Those voices will get louder in the wake of Brexit, which Donald Trump himself hailed as the wise and brave decision of Britons to “take back their independence.” Americans should resist the siren song of unilateralism—and recognize how different pragmatic U.S. engagement with multilateral institutions is from British membership in the European Union. In April, President Obama implored British voters not to quit the EU. In response, Boris Johnson, charismatic former mayor of London and champion of the Leave campaign, called Obama “hypocritical” for lecturing Brits “about giving up our sovereignty,” when Americans wouldn’t even sign up to the International Criminal Court. Johnson’s riposte was weak on decorum but strong on substance: the United States has always been determined to defend the supreme authority of the Constitution and the popular will of the American people. It has never subordinated itself to supranational structures—and it likely never will. But sovereignty has two other dimensions besides authority. The first is autonomy, or the freedom to make policy decisions independently. The second is control, notably over the nation’s destiny. The dilemma is that autonomy and control often work at cross purposes in managing globalization. To get what it wants—whether reducing carbon emissions to expanding trade—the United States must often make commitments, enter into treaties, or support multilateral organizations. These arrangements can sometimes constrain its options, but they also promise the United States greater control over outcomes that it could never achieve on its own. Britain’s Brexit reminds us of the pull of national sovereignty and the imperative of democratic accountability in institutions of governance, whether at the domestic or global level. But we should also remember that no nation, even Britain, is truly an island.

Annegret Bendiek is a senior associate at the German Institute for International and Security Affairs (SWP).  It’s cliché to say that we are increasingly dependent on internet-enabled technologies. Nevertheless, Europe is struggling to keep up. Shrinking budgets limit European countries’ ability to invest in building resilience against cyberattacks. The interconnectedness of critical infrastructure, along with the coming internet of things, forces European policy makers to consider the following question: how we protect and create resilient critical infrastructure? Finding an answer to this question is politically fraught. Security experts who adhere to the realist school of international relations theory argue that policymakers must accept the increasing militarization of cyberspace. They argue that states must build up their offensive and defensive cyber capabilities. This view has gained currency in a number of countries, as strategic planners issue national security policies with a cyber component. Likewise, the European Union and NATO have begun corralling their respective members to establish common defensive capabilities. It is also hard to overlook the reemergence of the state in cyberspace as they emphasize their digital sovereignty. More liberal minded scholars warn that the build-up of offensive capabilities only repeats the mistakes of the past. It will foster mistrust, lead to a new arms race and might even lead to the internet’s fragmentation as states assert their sovereignty. A free, open and trustworthy internet is an important global public good, and an offensive build-up puts that at risk. Following up on the approach of work under the auspices of the United Nations and Organization for Security and Cooperation in Europe (OSCE), much of policymakers’ attention has been focused on finding agreement common norms for state behavior in cyberspace with mixed success. Recently U.S. and EU officials have been adapting concepts found in the law of state responsibility, which sets out how and when a state is responsible for a breach of its international obligations, to promote certain cyber norms. For example, policymakers across the Atlantic are promoting the idea of state responsibility—states are responsible for the cyber activity originating from their territory. The UN Group of Governmental Experts on cyber issues picked up and endorsed this idea in its 2015 report, and will likely expand on this notion when its work resumes later this year. As the European Union will update its 2013 cybersecurity strategy, and will extend it to a “strategy for cyberspace” it should make the norm of state responsibility a cornerstone. A number of member states are developing their offensive and defensive capabilities, making an EU-wide strategy essential to ensure that their actions are compatible with norms that support a free, open, and trustworthy internet. The European Union can promote state responsibility in cyberspace in three ways:           EU coordination. Since 2003, EU officials have coordinated their cyber efforts through a Friends of the Presidency Group on Cyber Issues. Having this group agree to a common position on the norm of state responsibility would give the European External Action Service—the European Union’s diplomatic corps—a common message and outreach strategy with which to build support. The External Action Service’s work can be supported by the European Network and Information Security Agency, the authoritative reference for cybersecurity in the European Union.             Transatlantic support. Making states responsible for their cyber activities is only possible if states can attribute offensive cyber incidents. Despite their differences on privacy, espionage, and surveillance, the European Union and the United States need to cooperate to solve the attribution problem. One way they could do this is by supporting an effort to create an independent court of arbitration with the forensic capabilities to identify parties responsible for offensive cyber activities. An independent third party would improve the credibility of attributing an incident to a particular state thereby making it responsible.             Military restraint. Under international law, if a state has had its sovereignty violated, it is entitled to use all necessary and proportionate means to terminate that violation. This would apply in cyberspace, where a targeted state could engage in what has been dubbed “active defense” to end an ongoing cyberattack started by another state. Although taking these types of countermeasures are legal under international law, in practice, responses of this kind easily run the risk of escalation, possible legal breaches, and undermining the tradition of military restraint in foreign and security policy. To avoid this, EU member states should ensure that their respective militaries remain committed to a defensive approach, and promote this posture within NATO, the OSCE and other multilateral security institutions.   The internet is too precious and important to be left to the realists and to those who can only think in the categories of conflict and confrontation. A transatlantic initiative is required to ensure that it remains free, open and trustworthy. Without this, we might wake up one day and see that the cyber world of the twenty-first century looks dangerously similarly to political world of the nineteenth century.

Pei-Yu Wei is an intern for Asia Studies at the Council on Foreign Relations. Taiwan’s Legislative Yuan, the country’s highest lawmaker, is set to debate an addition to the Criminal Code that would subject people who are found guilty of killing children under the age of twelve to a mandatory death sentence, or in exceptional cases, such as severe mental illness, to a life sentence without the possibility of parole. This proposal came on the heels of a horrific crime that rocked the island in late March, in which a four-year-old girl was decapitated in front of her mother by a thirty-three-year-old unemployed man, who authorities suspect was under the influence of drugs. The tragic incident was the third murder of a child to happen in Taiwan in five years. In both of the previous cases, the suspects were unemployed men who were able to avoid death penalty sentences. Taiwan retains and actively practices the death penalty. Though there was a four-year moratorium on executing death row prisoners beginning in 2006, in 2010 then-Minster of Justice Wang Ching-Feng was forced to step down due to public outcry because she explicitly supported the abolition of the death penalty and announced that she would not approve of any executions during her tenure. Public support for capital punishment has consistently remained around 80 percent, with the latest poll showing support at 84 percent and only 6 percent of those surveyed supporting abolition of the death penalty. While most politicians so far have bowed to the will of the majority, executing prisoners has become a contentious topic for Taiwan in the international arena, especially in dealings with parties that have strong stances on human rights and capital punishment. Taiwan’s use of executions has previously drawn criticism from not only non-governmental organizations such as Amnesty International but also the European Union (EU) and individual EU members such as the United Kingdom, Germany, and France. In 2010, after Taiwan executed four death row inmates, the EU issued a strong condemnation, and individual member states, such as France and Italy, also issued statements reiterating their positions on capital punishment. In fact, tensions were so high between Taipei and Brussels that there were rumors that the EU, which at the time was considering a visa waiver proposal for holders of Taiwanese passports, would cancel the privilege. (The EU denied this.) Taiwan is not the only country whose implementation of the death penalty has drawn criticisms from the EU. Singapore is another country whose citizens overwhelmingly support the death penalty and which has also been criticized for executing its prisoners. For a country such as Taiwan, however, whose international space is already restricted, such criticism cannot be easily dismissed. Critiques of the death penalty from foreign governments and NGOs alike have garnered less than pleasant reactions from the Taiwanese public. Groups such as Amnesty International have borne the brunt of the public’s anger, but many also think the EU is interfering in the internal affairs of Taiwan. Even after the EU stated that it was not interfering with domestic matters and that the abolition of the capital punishment is just the body’s stance, articles such as, “The EU wants Taiwan to abolish the death penalty, but they have a higher crime rate,” are still often seen. Sensationalist though they may be, the articles do reflect a deeper societal trend in Taiwan. Comments online have ranged from, “The EU should really try to keep Great Britain first seeing as how it’s (the EU)  breaking apart at the seams,” and “Who cares? Taiwan isn’t a country anyways” to “You’re speaking for the prisoner? How can you live with yourself? Why don’t you go experience being a victim or a victim’s family member before you say anything?” It is quite clear that the EU and Taiwan are not going to reach a consensus on the death penalty anytime soon. In 2015, when Taiwan executed six prisoners, the EU once again issued a strong condemnation through the office of the High Representative for Foreign Affairs and Security Policy. In spite of the EU’s concern, there is a good chance that whether the proposal of the additional clause in the Criminal Code passes or not, Taipei will witness a new wave of executions in the near future.

The European Union is locked in a perpetual state of crisis management. It has had to head off the collapse of the eurozone, deal with waves of undocumented migrants, and now come to terms with a renewed terrorist threat, underscored by the recent attacks in Brussels. On top of all this, the EU confronts the real possibility of a British exit, or Brexit, which depends on the outcome of a public referendum in the United Kingdom in June. The European idea, which has helped to inspire the continent’s integration since World War II, may be the next casualty. In an article just published by Foreign Affairs, I take a look at the EU’s chaotic response to recent events and argue that when push comes to shove, national sovereignty will trump European solidarity. Read the full article here.

Alan Charles Raul is a partner in the Privacy, Data Security and Information Law practice of Sidley Austin LLP.  You can follow his group at datamatters.sidley.com. When the Court of Justice of the European Union (CJEU) struck down Safe Harbor last year, it did so on the basis that the European Commission had not determined whether European data transferred to the United States enjoyed the same protections as in the European Union. Despite the fact a recent Sidley Austin report found that many U.S. privacy protections are essentially equivalent—if not stronger—than the European Union’s in national security matters and comparable in other areas, the Commission clearly needed to replace Safe Harbor with something else to satisfy the CJEU and domestic privacy activists. In early February, the Commission and the U.S. Department of Commerce concluded negotiations on a new framework dubbed the Privacy Shield and the text of the agreement was released yesterday. The deal constitutes an impressive array of findings, commitments and obligations to help get EU-U.S. data transfers flowing smoothly again. This is really good news, and should go a long way toward ameliorating the transatlantic digital tension that was exacerbated by the Edward Snowden disclosures in 2013. The Commission has now determined, subject to further review and approval by other EU bodies, that the U.S. legal system for protecting personal information is "adequate." In other words, the Commission believes that the new Privacy Shield will provide EU citizens essentially equivalent protections in the United States to those they enjoy in the European Union. The new principles of the Privacy Shield will require companies that choose to sign up to provide additional redress rights to EU individuals whose data was transferred to the United States, such as mandatory conflict resolution including arbitration at no cost to the complainant. Companies joining the Privacy Shield will also have to cooperate with EU privacy regulators, known as data protection authorities, with regard to human resources data that is transferred to the United States. U.S. companies will also have to provide expanded "access" rights to EU individuals, and expressly obligate their own data processors and other third-party service providers to which they forward EU data to agree to the Privacy Shield principles by entering into "onward transfer" contracts. The Federal Trade Commission, Department of Commerce and European data protection authorities all have increased monitoring and enforcement responsibilities under the agreement. For companies that choose not to join the Privacy Shield, they will still be able to use other EU-approved mechanisms like binding corporate rules or contractual clauses for data transfers, at least unless and until EU privacy regulators assess later this year whether these methods are sufficiently robust. Hopefully they will not strike down these alternatives because that would represent another setback in digital trade across the Atlantic and raise real issues about whether U.S. companies are being discriminated against. It is also significant that the U.S. intelligence community has provided the Commission with written assurances that data transferred to the United States under the Privacy Shield will not be subject to mass or indiscriminate surveillance. Although this does not actually represent a change in practice by U.S. national security agencies, the fact they were willing to communicate this in writing to another international jurisdiction demonstrates the importance to the United States of abating Europe’s surveillance concerns, and engaging in a broader and more informed international discussion of surveillance norms. Moreover, the United States agreed to establish an ombudsperson in the State Department to monitor and resolve any EU complaints about the nature and extent of U.S. surveillance conducted on data transferred under the Privacy Shield or other EU-approved mechanisms. It is also important that President Obama recently signed the Judicial Redress Act into law. This will allow EU citizens to sue federal agencies if they believe their rights have been violated under the Privacy Act, just as U.S. citizens may now. This provision is subject to an important caveat: EU citizens can only bring suit provided the Attorney General determines the European Union is cooperating with the United States on commercial data transfers and is not impeding U.S. data collection for national security purposes—hopefully a manageable bar to clear if the Privacy Shield takes effect and the other transfer mechanisms remain valid. In essence, the Attorney General’s determination is a reciprocal "adequacy" determination, which should help maintain some balance and oversight of Europe’s actions. Of course, it leaves to be seen whether EU members states will ever apply to themselves the national security safeguards, checks and balances, and redress mechanisms that are in effect in the United States. In all, the Department of Commerce and the EU Commission have demonstrated that both sides can be reasonable when it comes to something as important as preserving access to the digital information that is necessary to serve the best interests of consumers and businesses on both sides of the Atlantic. And they also showed they can cooperate even where important national security and law enforcement issues and exigencies are at stake. Substantive convergence on data privacy is actually closer than the rhetoric would suggest, and it is good to see mutual investment in working problems out in favor of international trade, political harmony and citizen rights.