HOMAGE TO CATALONIA? EU LAW AND INDEPENDENCE MOVEMENTS

ORIGINAL PUBLISHED ON EU LAW ANALYSIS on Tuesday, 29 September 2015

by Steve Peers

The recent vote supporting pro-independence parties in Catalonia has restarted discussion about the relationship between EU law and independence movements within Member States. I blogged last year on this issue in the run-up to the Scottish independence referendum, but now is a good time to revisit the topic. There are three linked issues: a) what happens if part of a Member State issues a unilateral declaration of independence (UDI), which seems to be a possible development in Catalonia; b) what happens if a newly independent State which was formerly part of a Member State seeks to remain in the EU; and c) whether the EU should adopt a policy on this issue, and if so what that policy should be. This is purely an assessment of the EU law implications; I am not commenting here on the (un)desirability of secession of Scotland, Catalonia or any other part of a Member State as such.

The impact of a UDI

The possibility of a UDI in Catalonia distinguishes that situation clearly from the position in Scotland last year, since the referendum there was agreed with the UK government, which had promised to respect the outcome. However, it is conceivable that Scotland might in future contemplate a UDI, or that other parts of Member States would too. As we’ll see, it’s also necessary to distinguish between cases where the ‘parent’ Member State (for lack of a better term) is itself leaving the EU, and cases where it’s not.

The basic starting point of EU law is set out in Article 4 TEU: the EU must respect Member States’ ‘national identities’, which are ‘inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’. The EU must also respect Member States’ role ensuring their ‘territorial integrity’. There is no counter-balancing reference to self-determination at the sub-national level, and indeed regional government is described as an aspect of existing Member States’ national identities, not as a prototype for a separate demos.

It must follow that the EU has no legal authority to recognize a UDI until and unless the parent State has come to some arrangement with the seceding authorities to recognise their nascent statehood. The process and details of that arrangement are left entirely to national law. Doubtless independence-minded Catalans are disappointed that the Spanish government did not follow the British government’s lead and expressly contemplate potential independence; but it is entirely for the Spanish legal and political system to resolve what should happen on this point. Indeed, the rule works both ways: the EU should not interfere with the UK’s willingness to contemplate Scottish independence, even if some Member States are worried about their own independence movements.

I’m assuming here that Catalonia would wish to stay in EU following a UDI, although in fact the reasoning on this first point applies equally to any self-proclaimed new state that would want to leave the EU after a UDI.

There are, however, different considerations if a Member State is leaving the EU, and a part of that Member State seeks to break away and remain part of the EU. (This is a well-known possible development in Scotland following the upcoming ‘Brexit’ referendum). In that case, the withdrawing Member State will shortly lose the protection of EU law regarding its national identity and territorial integrity, and so the normal self-determination rule of public international law (whatever it means exactly) would apply. Legally speaking, it would therefore be open to the EU to recognise any UDI. But this would only be an option; politically, it is obviously possible that some Member States would not want the EU to recognise the UDI because of a risk that this would encourage separatism within their own State, despite the different legal framework.

Recognition of the new State

What happens if the parent Member State is willing (as the UK was last year) to accept the independence of part of its territory? This is mainly relevant if the new State wishes to remain in the EU; if it wishes to leave, then (for the following reasons, by analogy) it could do so without invoking the formal process of withdrawal set out in Article 50 TEU (discussed further here).

I’ll summarise my argument in the previous blog post regarding Scotland (although there are other points of view on these issues, which I refer to there). The new State does not become a Member State automatically, since the Member States are listed in the Treaties. A Treaty amendment is therefore necessary to add new Member States, even if they previously formed part of existing Member States. The process of adding new Member States is set out in Article 49 TEU on accession to the EU (requiring negotiation of an Accession Treaty between the old Member States and the incoming Member State). However, the accession process could be speeded up (given that EU law applies already in the new State), or the Accession Treaty could be applied provisionally. Or the existing Member States could circumvent the use of Article 49 by amending the Treaties via the usual process (set out in Article 48 TEU) to amend Article 49 to make a special case for accelerated EU membership for the new State.

As a matter of politics, of course, again some Member States might be unwilling to contemplate a new Member State in this scenario, or at least would be reluctant to speed up the membership process, for fear that doing so would encourage separatists in that State.

Does the EU need a policy on independence movements?

The EU has to address declarations of independence by breakaway (purported) States as part of its external relations policy, as regards places like Kosovo, East Timor and South Sudan. It doesn’t necessarily follow that it is wise for the EU to get involved in such issues within Member States. As discussed above, there is a legal rule that the EU cannot support secession in cases of UDI; but it would also be a bad policy move for the EU to get involved. Even where separation from the parent Member State is agreed, it would be unwise for the EU to get involved until the key domestic issues concerning independence have been agreed internally.

This is the quintessential example of an issue which should be left as a matter of principle entirely to each Member State to determine. Any legitimacy gain for the EU for supporting one side in the independence dispute would be lost as regards the other side in the argument. While separatists may wish the EU to help them, the EU should maintain its neutrality and leave it to them to win their argument (if they can) at the national level.

While EU law creates a legal bias (for the reasons described above) towards the status quo in independence situations, it would be necessary to develop a policy if secession from a Member State happened with its consent. In such cases, the EU should in principle respect both the willingness of the Member State to accept the secession from its territory (as an aspect of respect for national identity), and the view of the citizens in the new State to secede and join the EU (as an aspect of respect for democracy). As a consequence, it would be appropriate (although there would be no legal obligation) to facilitate EU entry for the new State (if it sought to become a Member State) as quickly and smoothly as possible. While it would be better for the EU to insist that this was a case-by-case policy, to avoid any perception that it was interfering in other Member States’ domestic politics by encouraging other separatists, they would likely be encouraged anyway. For that reason, despite the strong argument in principle that EU membership for newly independent parts of Member States should be fast-tracked, it’s entirely possible that it wouldn’t be a smooth process in practice.

Photo credit:  http://designseye.blogspot.co.uk/2013/06/happy-161-antoni-gaudi.html

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