Legal Appraisal of the EU-Russia Relations in Security Matters: a Frozen “Positive Luggage”

: The aim of this article is to evaluate the legal basis for the EU-Russia relations in security matters on the background of general deterioration of the partnership between Russia and the EU. This issue, first of all, focuses on the role of the EU and Russia in global security matters; secondly, it points out to the EU-Russia bilateral agreements in the security field; thirdly, this article is connected with the legal aspects of the EU-Russia security relations in the context of soft law and wide dimension of political cooperation.


II. The role of the EU and Russia in a global security context
Since the beginning of 21 st century the EU has been aspiring to become a global actor. The Laeken Declaration 2001 specially stressed: "What is Europe's role in this changed world? Does Europe not, now that is finally unified, have a leading role to play in a new world order, that of a power able both to play a stabilising role worldwide and to point the way ahead for many countries and peoples?" 5 . A new key challenge faces the Union and dictates for new amendments in formulating its position as an international actor 6 .
After the Lisbon Treaty 2007 the EU has a modernized competence in this field on the ground of the Treaty on European Union (TEU) and the Treaty on Functioning of the European Union (TFEU) 7 .
Art. 3(5) TEU mentions "security" among the external aims of the EU. International security strengthening on the basis of the UN Charter and Helsinki act and Paris Charter for a New Europe is supposed to be one of the purposes of the EU external policy according to Art. 21 TEU. As is well-known, the EU includes two Member States which are Permanent Members of the UN Security Council (France and the UK).
In accordance with provisions of the Title V of the TEU, the EU conducts the Common Foreign and Security Policy. It coordinates its policy with Euro-Atlantic structures, especially with the North Atlantic Treaty Organization (NATO) in common security and defense policy according to the Art. 42. The Lisbon Treaty introduced a new position within the framework of the EU Commission: The High Representative of the Union for Foreign Affairs and Security Policy. Furthermore, aiming to strengthen the 4 Prohibited organization within the territory of Russia. 5 The Future of the European Union. Laeken Declaration, Laeken, 15 December 2001, (SN 273/01). 6 Marise Cremona, 'Union as a Global Actor: Roles, Models and Identity ' (2004)   Common Foreign and Security Policy, it established the European External Action Service 8 . In June 2016 the EU adopted its Global Strategy for the Foreign and Security Policy, where it particularly stressed that "the EU will be a responsible global stakeholder" 9 .
After a period of relative weakness in the end of the last century, Russia is aspiring to have come back as a "great" power in the world politics in a new century 10 . Russia is also a Permanent Member of the UN Security Council. There is no doubt that "ensuring" security is the main priority of the Russia's foreign policy in accordance with the Russian Foreign Policy Concept 2016 11 . Russia keeps being firmly engaged in the world politics and plays the leading role in Eurasian security structures such as the Collective Security Treaty Organisation (CSTO) and the Shanghai Cooperation Organisation (SCO).
Modern relations between the EU and Russia in general and in security matters in particular are considered to be relations of ambivalence. On one hand, the EU, as a "global actor", and Russia, as a "great power", are partners and need each other to respond to new challenges in the dimension of global problems. On the other hand, all we know is that a new brinkmanship between the EU and Russia has to do with the Ukrainian crisis 12 .

EU-Russia Partnership and Cooperation Agreement
The EU-Russia relations in security matters have always suffered from a lack of hard legal basis. As I mentioned previously, the EU-Russia relationship rests upon three legal layers 13 . The first layer is the EU-Russia Partnership and Cooperation Agreement (PCA) 14 and other EU-Russia bilateral agreements. The second layer consists of soft law such as 'roadmaps' for the establishment of four EU-Russia Common Spaces. The third layer covers the Russian legislation and the EU acquis within the EU-Russia sectoral cooperation.
The EU-Russia PCA constitutes the core of the EU-Russia relations. This agreement was signed on June 24,1994 in Corfu (Greece) and entered into force on Decem-ber1, 1997. The EU-Russia PCA has formed a firm foundation for EU-Russia political dialogue and economic, social and cultural cooperation including legislative approximation. It is an 'entry-level' and a 'framework' agreement and a basis for other EU-Russia bilateral agreements 15 .
The EU-Russia basic agreement is mainly dedicated to economic and trade matters. The EU-Russia PCA pursues the objective of establishing a market economy in Russia in preparation of its accession to the WTO. The finalité of the agreement is Russia's integration in the world economy and, in the longer term, the creation of a free trade area between Russia and the EU.
However, isolated provisions in the field of security can be found in the EU-Russia PCA. Firstly, they appear in the Preamble (commitment to promote international peace and security). Secondly, these provisions can be found among the principles of the partnership in the Art. 2 (it links to the Helsinki act and Paris Charter for a New Europe and in this context it responds to the modern TEU provisions). Thirdly, "increasing security" is one of the objectives of the EU-Russia political dialogue in the Art. 6. Finally, Art. 2 of the PCA considers the respect of human rights and other democratic principles established in the Helsinki act 1975 and the Charter of Paris for a New Europe 1990 as an essential element of the partnership. Although these provisions do not take into account the Russian membership in the Council of Europe and the European Convention on Protection of Human Rights and Fundamental Freedoms 1950 as well as the adoption of the EU Charter of Fundamental Rights in 2000, they constitute an important aspect of shared values between Russia and the EU 16 . Moreover, Russian courts in their practice recognise a direct link between these provisions of the PCA and provisions of the Constitution of Russia 1993 17 . Principles and other provisions of the Helsinki act 1975 have always impacted the relations between Russia and the EU and its Member States.
Unfortunately, the PCA does not prioritize security issues in their provisions. Furthermore, as we know the PCA is very old. It was concluded more than 20 years ago. It does not correspond with the current state of mutual relations. 15 The described legal framework should be changed. Primarily it concerns the EU-Russia PCA. Russia's WTO accession in 2012 made many of the provisions of the EU-Russia PCA outdated. 18 Actually, in 2006, Russia initiated negotiations concerning a New Basic Agreement between Russia and the EU to replace the PCA. This initiative was supported by the EU and the negotiations started in 2008. In the period between 2008-2011, the Parties agreed on several key points of the future agreement, but in December 2011, they decided to delay the negotiations. The Ukrainian crisis has finally cut out the New Basic Agreement negotiation process from the EU-Russia agenda.

EU-Russia Agreement on protection of classified information
It is a well-known fact that in 2010 the EU and Russia concluded the Agreement on the protection of classified information 19 . This agreement is an important step to mutual convergence in the field of external and internal security of the Parties. However, it is a purely technical agreement. It is important to notice that the EU concludes similar agreements with other third countries as well, e.g. with the USA 20 .
This Agreement is applied to the protection of classified information which is provided, exchanged or produced between the Parties in the course of their cooperation. Its provisions should assist and simplify cooperation in security matters according to other agreements or action plans.
The Agreement consists of preamble and 16 articles. The main aim of the Agreement is to approximate procedures for exchanging of classified information during different forms of cooperation between the Parties. In this regard, the Agreement puts into the ground a universal basis for further cooperation between the EU and Russia in the field of security. According to the Agreement, "restricted information" can be divided into "secret" and "top secret". The Agreement provides a legal framework in the field of information security in the context of the EU-Russia common spaces. In spite of its brevity and focus on a narrow practical area of cooperation, the Agreement on Russia's participation in the EU Police Mission 2003 has a historical meaning. This Agreement was the first step in the field of cooperation in the European security matters between Russia and the EU as key players within the European area. 22 Agreement between the European Union and the Russian Federation on the participation of the Russian Federation in the European Union Police Mission (EUPM) in Bosnia and Herzegovina (BiH), (OJ L 197, 5.8.2003, p. 38 Russia's participation in the EUFOR Chad/CAR had a serious political and legal basis. It contributed to the measures taken by the UN Security Council to provide peace and security in the World. Afterwards, Russia's participation in the EUFOR Chad/CAR strengthened Russia's position in the foreign policy dialogue with the EU, as well as allowed to work out, in practice, optimal schemes of interaction in the field of crisis management between the EU and Russia.

Previous experience: participation in the EUPM
Resolution of the Security Council of the United Nations 1778 (2007)   It is important to stress that these decisions were made by the Parties against the backdrop of the conflict in South Ossetia.
The Agreement on Russia's participation in the EUFOR Chad/CAR was signed on November 5, 2008, and had been applied provisionally from that date in accordance with its Art. 9(2). There is no doubt that the technical revision of Russian authentic text has slightly delayed the process of its ratification in Russia itself. The Agreement on Russia's participation in EUFOR Chad/CAR was ratified by Russia through adoption of the Federal Law of 28. 11.2009 № 306-FZ 31 and entered in force in 2010. The Agreement consists of a preamble, nine articles, Technical Protocol and statements of the Parties.
In accordance with Art. 1 of the Agreement, the Russian military contingent was engaged in the EUFOR on the terms of the UN mandate, the EU Council Joint Action and the Agreements between the EU and Russia. The Russian troops could be withdrawn unilaterally at any time, after the prior consultation between the Parties. Article 4 of the Agreement prescribed for Russian troops to remain under full command of the Russian Party. It should be noted that the military contingent management was totally delegated to the EU in order to contribute to the achievement of the targets of the operation. The status of the Russian military contingent was determined by the Status of Forces Agreement concluded by the European Union and the Republic of Chad, the Central African Republic and the Republic of Cameroon (Art. 2). On top of that, specific technical and administrative conditions for the participation of the Russian military contingent in the EUFOR Chad/CAR were laid down in the Technical Protocol between the Russian Ministry of Defense and the Commander of the EUFOR Chad/CAR.
It is essential to emphasize that both the agreement on Russia's participation in the EU Police Mission and the agreement on Russia's participation in the EUFOR were crucial in the context of the protection of classified information issues. Pobrane z czasopisma Wschód Europy http://journals.umcs.pl/we Data: 08/07/2020 23:45:37 U M C S the Road Map on common space of external security covers external security issues such as terrorism, non-proliferations, crisis management, and civil protection.

The EU-Russia Common Space of External Security
The Road Map for the EU-Russia Common Space of External Security consists of an introduction and five chapters. The introduction of the Road Map listed objectives and scopes of the measures within the framework of the EU-Russia Common "Third" Space. It should be noted that the purposes of the Road Map come across as totally vague from the legal point of view. There are four sets of objectives to be pointed out: 1. To cooperate with the aim of strengthening of the central role of the United Nations on the basis of the fact that Russia and the European Union share responsibility for the maintenance of "international order based on effective multilateralism"; 2. To respond to the current global and regional challenges and key threats by strengthening of co-operation and dialogue on security and crisis management; 3. To promote the process of regional cooperation and integration in mutually beneficial way through result-oriented cooperation and dialogue between the EU and Russia, thereby making an effective contribution to creating a greater Europe without dividing lines and based on common values. 4. To contribute to the promotion of common values in the international arena.
It is important to note that the Road Map for Common Space of External Security is the only of the four EU-Russia road maps 2005 that directly mentions the PCA as the ground of this Space. The third Roadmap determines that Russia and the EU base their foreign policies on common values "as defined in the Helsinki Final Act and the Agreement on Partnership and Cooperation and other relevant international instruments, in particular, the respect for international law, including respect for democratic principles and human rights, including the rights of persons belonging to minorities, as well as the principle of equality and mutual interests".
The Roadmap for Common Space of External Security lays down five priorities under which the five sections of the document are built: -Strengthen dialogue and cooperation in the international arena; -The fight against terrorism; -Non-proliferation of weapons of mass destruction and their means of delivery, strengthening of export control regimes and disarmament; -Cooperation in crisis management; -Cooperation in the field of civil protection. For each of priority area the Road Map sets forth specific targets and key activities. In addition, the Road Map provides the possibility to develop action plans for specific areas of cooperation between Russia and the EU in the field of external security. The document is full of references to international treaties and other intergovernmental instruments. It underlines the fact that the partnership between the EU and Russia is impossible without coordinating their interests at the global level.
Pobrane z czasopisma Wschód Europy http://journals.umcs.pl/we Data: 08/07/2020 23:45:37 The Roadmap for Common Space of External Security also provides for a specific monitoring mechanism. Monitoring the implementation of the Third Roadmap puts into the agenda cooperation within existing formats of the meetings within the "troika" of the Political and Security Committee at the level of permanent representatives and consultations of political directors. The Parties are responsible for reporting on the implementation of the Road Map at meetings of the Permanent Partnership Council at the level of ministers and/or ministerial meetings with Russian "troika" of the EU. If necessary, Russia and the European Union adopt conclusions regarding the development of the Third Space.
It is obviously clear that the document is outdated in a number of respects, it does not line up to many of realities of international life of 2010th. Moreover, the Road Map for the Common Space of External Security is placing the outmost importance on the cooperation between Russia and the EU in the framework of the United Nations (UN), the Organization for Security and Cooperation in Europe (OSCE) and the Council of Europe, but saying nothing about the role of NATO in their relationship.

Other instruments
In 2006 Russia and the EU specified the provisions of the Road Maps for the Northern Dimension policy in the Northern Dimension Political Declaration 37 and the Northern Dimension Framework Document 38 . However, these documents are rather old and it is necessary to revise them.
It is important to point out that problems of security in energy supply (especially gas supply, so-called "Russian-Ukrainian gas wars") between the EU and Russia led to the conclusion of the Memorandum on early warning between the EU and Russia 2009 39 .
As a rule, the EU and Russia in their mutual documents in security matters tend not to mention the NATO as a factor of European security. Besides, this factor is a key issue in practice.
The NATO-Russia relations were suspended due to the Ukrainian crisis. However, Russia and the NATO have a steady basis for the relations. The Founding act of 1997 and the Rome Declaration 2002 opened wider possibilities for any cooperation between them. Russia is a Party of the Partnership for Peace Status of Forces Agreement (PfP SOFA) 40 . This Agreement corresponds to and repeats "word by word" the NATO SOFA, the most important NATO legal document after the North Atlantic Treaty. Although, the Parties initiated steps to improve their relationships and renovated the NA-TO-Russia Council meetings in 2016, it is unlikely to expect that they will restore their relations in the spirit of mutual trust and understanding in the nearest future 41 .
Russia and the EU are still cooperating throughout different universal and regional foras such as UN, OSCE, G20. It allows to bode well for the future.

V. Conclusions
The lack of hard legal basis is not the main problem for the EU-Russia relations in security matters. There is a field of unseized opportunities. For instance, Russia refused to participate in the European Neighbourhood Policy and to seriously consider its future NATO membership in 2009 and 2010 in spite of the fact that the US was ready to propose it. The EU rejected to consider the Draft of the Eurosecurity Treaty 42 proposed by Russia in 2010. It established the Eastern Partnership without contacts with the Eurasian security structures. While some modifications were proposed, there was very little support for the creation of a new security system in Europe.
However, the EU-Russia Relations in security matters have always suffered from not only the lack of hard legal basis, but also more importantly, from the lack of ground-breaking ideas and concepts. In May 2016, the European Leadership Network submitted to the European External Action Service its survey report on the EU-Russia relations advising to be ready for "a gradual and most likely torturous process of establishing a new regime of co-existence and limited EU-Russia cooperation" 43 . Likewise, the report of the Valday Club on the future of the EU-Russia relation, which was presented at the same time in Russia, is fully pessimistic and utterly devastating 44 . At the same time, the idea of a Common economic area from Atlantic to Pacific is still on the agenda of Russian external activity in accordance to its Concept of foreign policy 2016 45 .
To sum everything up, some relevant directions should be rolled out in order to turn the relation between the EU and Russia in security matters in a positive way: