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Secession in the EU multi-level constitutional order

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Secession in the EU multi-level constitutional order
Federal Scholar in Residence - Eurac Research

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 Scottish First Minister at the time, Alex Salmond. The claims put forward suggested that an independent Scotland could negotiate membership ‘from within’ the EU. Instead, the Spanish minister argued that Scotland would have had to follow the 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. Last summer, the Scottish Government announced their strategy for securing a referendum that may lead to an independent Scotland in the EU in the future. 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 organize a legal referendum while Cyprus is sleepwalking towards a de jure partition.

The questions that have arisen in the context of such 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 had previously been incorporated may also be seen as a move to change the status or affiliation of a territory within a wider constellation of polities. This is why there has always been a question about how the EU should treat such constitutional events. For instance, Weiler 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, this 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 states 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, respect to the relevant Member State’s position. 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 secession consists of an 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.

This idea of the EU legal order as a flexible legal space which can accommodate and transform legal, political and constitutional conflicts underpins the whole body of my research. And there was no better place than Bolzano to add the final touches to a paper that has been the product of many years of personal engagement and study of EU law and a number of self-determination disputes in Europe. At the very center of the city of Bolzano/Bozen lies the Victory Monument. Its construction in fascist style was seen as provocative by many within the German-speaking majority in the province of South Tyrol. A century later, the monument has been reappropriated and recontextualized to document a city that has suffered from, and survived two, dictatorships. In that way, ‘a controversial monument, which has long served as the focal point of battles over politics, culture, and regional identity’ was reintegrated to the life of a formerly divided city. As the 2023 Federal Scholar in Residence, I had the privilege of seeing this tangible reminder of the transformative of effect of the EU on conflicts every morning as I was walking to Eurac Research.

Nikos Skoutaris

Nikos Skoutaris

Dr Nikos Skoutaris is an Associate Professor in EU law, UEA. His website focuses on Secessions, Constitutions and EU law. Follow him on Twitter.

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Citation

https://doi.org/10.57708/b149822007
Skoutaris, N. Secession in the EU multi-level constitutional order. https://doi.org/10.57708/B149822007

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