Echoes of the trenches … Kapoor’s work, titled A Brexit, A Broxit, We All Fall Down. Photograph: Anish Kapoor
Unlike breach, withdrawal from an international treaty is in principle a lawful act. Article 54 of the Vienna Convention on the Law of the Treaties allows a State to withdraw from a treaty either in conformity with the relevant provisions or by consent of all parties. In that sense, Article 50 TEU that provides for a Member State ‘to withdraw from the Union in accordance with its own constitutional requirements’ could be seen as a lex specialisto the general international law rule. Helfer has convincingly showed that clauses authorising denunciation and withdrawal from international conventions are far from uncommon.
Having said that, the EU is also a ‘community of unlimited duration, having its own institutions, its own personality, its own legal capacity [and] real powers stemming from a limitation of sovereignty or transferof powers from the [Member] States’. To the extent that Brexit marks the withdrawal of the UK from that community of law and the abrupt end to the symbiotic relationship of its legal order with the EU one, it is also a process that bears significant resemblance with secession. This blog post points to three distinct but interconnected aspects of the relationship between Brexit and secession.
Aspect 1: Article 50 TEU as a secession clause
Secession should not be understood as an absolute constitutional taboo. There are some constitutional orders that allow for a consensual and democratic process of partition. Take for example, Article 39 of the Ethiopian constitution that provides ‘every nation, nationality or people in Ethiopia’ with ‘the unrestricted right to self-determination up to secession’. Even the miniscule State of Liechtenstein allows individual municipalities to secede from the union according to Article 4 of its constitution. Similarly, the UK constitutional order allows the secession of one of its regions. Westminster has formally conceded that Northern Ireland can secede from the United Kingdom to join a united Ireland, if its people, and the people of the Irish Republic, voting separately, agree to this. Mutatis mutandis Article 50 TEU allows a Member State to break away from this ‘community of unlimited duration’.
Having said that, there are significant differences when one compares Article 50 TEU with those constitutional clauses that allow for secession. First of all, the right contained in the EU treaty is characterised by unilateralism in that it ‘is totally independent of the will of the EU [and] the remaining Member States’ as Closa has pointed out. In contrast, the Canadian Supreme Court, for instance, in its famous Reference re Secession of Quebec, held that ‘a referendum unambiguously demonstrating the desire of a clear majority of Quebeckers to secede from Canada, would give rise to a reciprocal obligation of all parties of the Confederation to negotiate secession’.
More importantly, it is unconditional in that ‘the exercise of the right to withdrawal is not subjected to any preliminary verification of conditions nor is it even conditional on the conclusion of the agreement foreseen in the provision’. Article 50(1) TEU allows a Member State ‘to withdraw from the Union in accordance with its own constitutional requirements’. Article 50(3) TEU foresees that the withdrawal can take place two years after the Member State has notified the EU of its intention to leave if no withdrawal agreement has been achieved by then.
This is in marked contrast with the majority of constitutional provisions that regulate secessions. They provide for conditions with regard to the organisation of a referendum that could potentially lead to secession and/or foresee an inter partes agreement as an important step to finalise the process. For instance, a referendum for the reunification of Ireland can only be organised if ‘it appears likely to [the UK Secretary of State] that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland’. Equally, Article 113 of the Constitution of Saint Kitts and Nevis allows for the secession of Nevis Island following a process that is prescribed in a detailed manner in paragraph 2. In the case of Liechtenstein, secession can only be regulated by law or by treaty while the Ethiopian constitution allows for it ‘when the division of assets is effected in a manner prescribed by law.’
Aspect 2: The European Union (Withdrawal) Act 2018 as a ‘continuance clause’
Secessions mark the rupture with the old constitutional order and the creation of a new one. However, in order to achieve a smooth transition between the old order that is ‘dying’ to the new one that is ‘born’, certain constitutions opt for ‘continuance clauses’ that allow them to deal with the legal vacuums that could be created by the abrupt end of the old legal regime. For instance, Articles 4(1) of the Constitution of Jamaica and 188(1) of the Constitution of Cyprus provided for the continuation of the colonial laws until they were replaced by new laws adopted by the parliaments of the newly independent States. Douglas-Scott has noted the similarity of those clauses provided in constitutions of former colonies with the European Union (Withdrawal) Act 2018.
This legislative act received its royal assent on 26 June 2018. Its constitutional significance of that piece of legislation cannot be overstated. Section 1 repeals the European Communities Act 1972 which is considered one of the ‘constitutional statutes’ of the United Kingdom. Crucially, however, its purpose is to preserve and carry over into UK law the full body of EU law even after Brexit takes place as provided in sections 2, 3 and 4 of the Act.
The reason why a legislative act that was initially called ‘the Great Repeal Act’ ‘copies and pastes’ huge swathes of EU law in the legal order of a future third country is the following. Given the symbiotic relationship of the two legal orders for more than 40 years, there are thousands of directly applicable and directly effective pieces of EU law that would cease to apply to the UK after Brexit takes place. This would mean that legal vacuums would be created in a number of areas such as environmental law, consumer protection, workers’ rights etc. In order to avoid such a situation, it was of utmost importance that the UK administration and Westminster would find a way to bridge those gaps without clogging up the parliamentary timetable for years to come.
Aspect 3: Brexit triggering secession(s)
At the same time, Brexit might also become the catalyst for the secession of the two UK constituent nations that voted to remain: Scotland and Northern Ireland. With regard to the former, the competence of the Scottish legislature to organise an independence referendum without the consent of Westminster, is at least debateable. Notwithstanding, the process that led to the 2014 referendum shows that a secession of Scotland from the rest of the UK is possible to happen in a consensual and democratic fashion.
On the other hand, the right of Northern Ireland to democratically secede from the UK is constitutionally guaranteed, as we already noted.The turbulent past of the region, however, means that any discussion on significant changes to its constitutional position and the status of its land border with the Republic of Ireland and its sea boundary with the rest of the UK is destined to be fraught with animosity. This is why the Northern Irish conundrum has become the equivalent of the Schleswig-Holstein question of the Brexit negotiations.
Despite the intractability of the problem, the EU and the UK Government managed to provisionally agree on a solution to that Gordian knot in November 2018. The famous ’backstop option’ provided by the Protocol of Ireland/Northern Ireland of the draft UK Withdrawal Agreement, however, has been portrayed as a threat to the UK constitutional and territorial integrity. The leader of the DUP has gone as far as saying that it would lead to the de facto secession of the region from its metropolitan State and its annexation by the EU. As I have discussed elsewhere, such claims are unfounded.
All the aforementioned point to the fact that the relationship between the withdrawal of the UK from the EU and the phenomenon of secession is complicated in that it is characterised by certain similar trends but also clear differences. More importantly, it shows how a process such as the withdrawal of a State from an international organisation,that takes place in the international sphere, influences the delicate balances of the UK constitution. As such, Brexit is a testament to the intertwined nature of the European constitutional landscape and the compound EU polity.
The post was first published on the blog of the British Association of Comparative Law on 1 April 2019.
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