Secession in the EU multi-level constitutional order

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Forty-eight hours before the 2014 Scottish independence referendum, the then Spanish Secretary of State for the EU, Méndez de Vigo, appeared on the BBC. During his interview, he rejected the claims of the then Scottish First Minister, Alex Salmond, according to which an independent Scotland could negotiate membership ‘from within’ the EU. Instead, he argued that Scotland would have had to follow the ‘normal‘ accession process provided by Article 49 TEU, casting doubt on whether Spain would ever consent to it.

The issues highlighted in this largely forgotten interview are not unique to that moment in time. A couple of years ago, the Scottish Government announced their strategy for securing a referendum that may lead to an independent Scotland in the EU. The debate on the constitutional future and European prospect of Northern Ireland has intensified after the UK’s withdrawal from the EU. In Catalonia, the parties that support independence remain in power and hope to organise a legal referendum after they have secured (?) a deal with the Spanish Government on an amnesty law (that provides for the complete exculpation of all penal, administrative, or accountable crimes to those indicted after the referendums on Catalan independence of 2014 and 2017) while Cyprus is sleepwalking towards a de jure partition.

Postcards from Bolzano where part of this paper was written

The questions arisen in the context of all those constitutional conflicts shed light on the intricate relationship between secession and the EU constitutional order. For within the EU multi-level constitutional order of States, ‘the voluntary withdrawal of a political territory from a larger one in which it was previously incorporated may also be seen as a move to change the status or affiliation of a territory within a wider constellation of polities.’ In the case of internal secession (ie. when a region is carved out of an existing one and given distinctive substate status within a federal or quasi-federal State), a newly formed substate entity within a territorially plural EU Member State would be able to effectively use the channels of regional participation in the Union policy-making processes both at the national and at the EU levels. As to external secession (ie.  when a subunit of a state breaks off, usually to form a new state, but sometimes to join an existing neighbour), its proponents, such as the mainstream Catalan and Flemish independentist parties, prioritise the ‘upgrade’ of their region from a subnational authority to a fully functional Member State within the EU legal order, enjoying all relevant rights and obligations. Finally, the withdrawal of a whole Member State from the EU, such as in the case of Brexit, inescapably leads to the recalibration of its relations with the EU and its remaining Member States.

A podcast with Dr R Gulati about my paper

Overall, secession within the EU,  triggers the repositioning of the relevant subject of EU law within the European constitutional landscape. This is why there has always been a question about how the EU may treat such constitutional events. For instance, Weiler has famously suggested that the EU should not and/or would not admit independent States that have been created even out of consensual and democratic secession as members. Instead, the Union should wish them ‘Bon Voyage in their separatist destiny’.

Contrary to this view, in my new article, I argue  that provided that secessionist processes (at any level of the multi-level constitutional order) are in conformity with the foundational values of the Union enshrined in Article 2 TEU, the EU legal order is flexible enough to accommodate them. Such accommodating and flexible approach to secessionist processes that the paper suggests is dictated by three fundamental aspects of the EU constitutional order of States.

First is the composite, intertwined and multi-level character of the European constitution. Article 4(2) TEU provides that the ‘Union shall respect … Member States’ national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.’ Also, the Union ‘shall respect [Member States’] essential State functions, including ensuring the territorial integrity of the State.’ This means that the starting point of how the EU accommodates secessionist processes that take place at any tier of the multi-level order is and should be the respect to the relevant Member State’s position, as Peers has argued. So, if there is a consensual and democratic secession, it should be accommodated by the Union.

Second, the EU as a subject of international law has committed itself to ‘the strict observance and the development of international law.’ This is particularly relevant as a (consensual) secession is a legitimate expression of the right to self-determination. So, overall, an approach that accommodates secessionist processes that do not breach Article 2 TEU is also compatible with and respectful of the international law on the right to self-determination.

Third, such deference is also in conformity with the EU’s raison d'être as a peace plan. Rather than actively fighting to eradicate nationalism, the EU, since its inception, has provided for a pragmatic legal, political and economic framework where competing nationalisms co-exist and even cooperate. It has designed political and legal institutions in which the competing nationalisms can continue to be negotiated. It is precisely the historical success of this pragmatic framework that transformed foes of the past such as France and Germany to reliable partners of today. In that sense, an emphasis on the procedural requirements of consensual secession and the subsequent normalisation of the relations with the Union can have transformative effects on those constitutional conflicts as it may contribute to the lessening of the frictions, tensions and fissures that those processes unavoidably create. By adopting such an approach, the EU may incentivise self-determination movements to adopt methods, which are compatible with the Article 2 TEU foundational values instead of engaging in an endless, paralysing political and constitutional tug of war.

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