"The accommodation of secessionist movements in the EU. A legal and political approach" (original) (raw)
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European Union Integration and National Self-Determination
New England Journal of Public Policy, 2019
Recent demands for secession in several EU member states bring the issue of selfdetermination to the forefront of the debate about the future of the European Union. This article explores the European Union's attitudes toward the international right to selfdetermination in the context of the rising salience of the greater political union between member states. The focus of the European project, in direct contrast to the glorification of nationhood, is on consensual decision-making rather than sovereignty, making selfdetermination obsolete in a reality of EU integration. This research finds that recognition of, or references to, the right to self-determination of peoples are absent from EU law sources. Official EU statements in the United Nations interpret the right to self-determination as the presence of a representative democracy and the ability to enjoy human rights within existing states. This interpretation implies that secession campaigns in EU countries are unfounded. The European Union demonstrates a strong preference for various forms of internal selfdetermination (extended autonomy of regions, minority rights, and language rights) as an approach to address the diversity of peoples and regions within its borders. But the European Union has no legislative competences in these areas and the enactment of such policies is dependent solely on the goodwill of individual member states. By analyzing past cases of recognition by the European Union of newly independent states in the wider European region, this article demonstrates that they have been inconsistent and arbitrary, dependent on the strategic interests of individual member states rather than clear normative criteria.
The emergence of a democratic right to self-determination in Europe
To determine their political status, peoples have chosen to involve their populations in a democratic process culminating in a referendum relating to such status, and notably that of a sovereign and independent State. Quebec has twice chosen to take this route. Scotland followed a similar path, which led to the organisation of the referendum of 18 September 2014. Catalonia also attempted to choose such a route. While this approach has been the preferred option in recent exercices of the right to self-determination, a new approach of a democratic nature is also emerging as an alternative. To implement its right of self-determination, and achieve national independence or greater autonomy, a people can rely on its constituent power and initiate a process aiming to give the people their own fundamental law. This is the avenue that the Catalan government and parliament appear to have chosen, adopting a roadmap that focuses around a constituent process and the drafting of a Constitution for an independent Catalonia. There are many reasons that might favor an initiative to draft a basic law in the exercise of the right of self-determination. They relate to the necessity of defining one people’s own constitutional identity, but also of resolving the constitutional stalemate that often explains demands for independence and autonomy. In describing the values on which a political community rests and which guide institutions in the governance of the State, a constitution may become an instrument that gives a people an identity, both among citizens themselves and in the international community. A constitution is, first and foremost, a document aiming to establish the basis on which the life of a nation rests. It organises public life around a founding text that can become a tool for which a people desirous of taking part in the democratic life of the nation can take ownership. The exercise of constituent power can lead a people to draft a basic law which implies increased autonomy and the need to reform the constitution of the State to which the people belong. But it may also generate a confrontation between two constitutional orders and contribute to demonstrating that only additional autonomy or national independence will allow the people to fully express its constitutional identity. The adoption of a constitution and its approval by the people in a referendum as is envisaged in Catalonia can thus become a valid exercise of the right of self-determination. This approval could compel a state to fulfil its obligation to negotiate in response to the exercice by a people of their right to choose expressed in its first constitution. The results of the referendum held in United Kingdom on its future relationship with the European Union show that a majority of voters (51,9%) favored the “Brexit” option and expressed their will to leave the EU. This act of British self-determination clashed with the wishes of the peoples of Scotland (62%) as well as of Northern Ireland (56%) who voted in favor of the option of remaining in the EU. After Brexit, and because of their own acts of self-determination, the First Minister of Scotland Nicola Sturgeon has suggested that a second referendum on independence is highly likely and Northern Ireland’s First Minister Martin McGuinness called for a referendum on a united Ireland.260 This suggests that the democratic right of self-determination of peoples, which has emerged is well and alive. And to use Ernest Renan’s brilliant metaphor, that it is a “plébiscite de tous les jours”.
Democracy and Borders: External and Internal Secession in the EU 14
In the absence of a constitutional right to secede or title of international law, secessionists may look to current theories of secession. But if they go for “independence in Europe”, they may also look to precedent cases of “internal secession”. As it comes out, these two “tracks” entail very different logics. Current theories of secession can be classified as remedial right or primary right theories. Each has its particular problems, but they have in common to consider unilateral secession. In internal secession, where the secessionists carve out a new member state but without leaving the federal system, this is different. There is not much literature on normative aspects of such processes. We look at federal practice, particularly in federations like Switzerland, Canada and India. Federal governments owe loyalty to the member states but also to the secessionists as citizens of the federation. In such circumstances, it becomes easier for secessionist citizens to present a claim. But the population of the seceding area, the member state and the federation (including the totality or majority of the other member states) have to approve. All parties are bound by the federal constitution (in the case of the EU, the Treaties). Internal secessions never can be unilateral; it may be easier to claim but more difficult to achieve than external secession.
SELF-DETERMINATION OF THE EUROPEAN UNION
EU AND COMPARATIVE LAW ISSUES AND CHALLENGES SERIES (ECLIC) – ISSUE 8, 2024
The European Union is not just an international organization. It is a unique political and legal system based primarily on the fundamental principles of democracy and the rule of law. As such the European Union has a right of self-determination, namely that its own political mechanisms “freely determine its political status and freely pursue its economic, social and cultural development. While it is undisputable that Members of the European Union have the right of“national” self-determination within the European Union, the self-determination of the European Union, as such, is a concept still almost unknown in political and legal theory and practice. However, the Treaty on the European Union and the Treaty on the unctioning of the European Union already provide enough elements for the identification and conceptualization of the selfdetermination of the European Union as understood in international law (and politics). Self-determination of the Member States and self-determination of the European Union can exist as separate and interconnected concepts that might provide an adequate legal and political framework for further development of the European Union, its identity, key values and ends of its internal and foreign policy. Recognition and conceptualization of the right of selfdetermination, not only in political and legal theory but also in the political practice of the European Union might be a further step in the development of the European Union, as “a new stage in the process of creation an ever-closer union among the peoples of Europe”. While the concept of self-determination of the European Union might be developed in the existing legal framework, namely in accordance with the founding treaties, it seems that it should have a proper place in its forthcoming revision. The recognition of the self-determination of the European Union certainly improves the very concept of the identity of the European Union and the perception of its role in international affairs.
The Process of Constitutionalisation of the EU and Related Issues - Edited by Nadežda Šišková
European Law Journal, 2010
The Making of a European Constitution is a challenging read-conceptually complex and analytically rich. The following review spells out the authors' core argument, followed by a few critical observations. The analytical starting point that gives context to this book is the death of the constitutional axiom-or, in the words of the authors, 'constituicide' (chapter one). In their view, the constitutional axiom is the idea of political settlement, whereby political communities (such as nation states), and the political institutions that operate therein, derive their legitimacy and authority from an agreement between the people of a given community as to the nature, the form and objectives of that newly constituted community-a (political) constitutive moment. According to axiomatic theory, the constitutional legitimacy of law and legal systems (as sites of, for example, constitutive power) originates from such a politically constituted settlement, ie a constitution. This follows a kind of Kelsenian logic, whereby the political settlement embodies the foundational Grundnorm upon which the law and the legal system are legitimated. Constituicide, then, is both a normative evaluation of this premise and an empirically verifiable observation in relation to the EU. Normatively, the 'death' of which the authors speak is an articulation of an enduring legacy in constitutional theory, which is derived from a politically tumultuous and violent early to mid-twentieth century in Europe. As a result of this, the legitimacy of the political settlement (ie the European nation state) has been cast into doubt. Accordingly, the authors argue that political settlements are exclusionary and un-reflexivesmothering of any potential revolutionary politics (chapter seven). Additionally, settlement provides a pejoratively mythological legitimacy for law, legal systems and, in particular, constitutional adjudication by courts. It is a kind of a priori legitimacy that circumvents deeper and more socially relevant legitimacy questions. Empirically, they observe that the EU has failed to reach such a settlement-signified (though not defined) by the failure of the European Convention to (politically) constitute a European polity. This failure therefore begs the question as to the legitimacy of Union law and, most significantly, its constitutionalisation of the EU. Constitutionalisation, the authors argue, is the process by which Union law-at the national and EU levelserves to define and generate the constitutional parameters of the EU polity and the institutional relationships therein (ie a constitutive or polity-generative function). They demonstrate important examples of this: the careful development and maintenance of the single market; the direction of European integration in terms of finalité (eg a federal EU); and the balancing of institutional competences (chapter two). In this way, the post-settlement context of the EU exposes the (already present) legitimacy questions to even greater scrutiny. Given the foregoing, the authors' principal question is: according to what standards or normative criteria can the practice of Union law-at the domestic and EU
The recent period of European integration has witnessed the attempt by elites to formalise the long-standing trend towards a constitutionalisation of the European Union. The paper asks whether this process of constitutionalisation, together with a twin process of territorialisation -the development of the EU as bounded political space -can be seen as a move towards state-building at the European level. In order to address these issues, the paper assesses in turn the significance and the impact each of the two processes may have on the 'remaking' of Europe. In this context, the EU's Nordic Dimension, the debate surrounding the Turkish application for EU membership and the evolving Neighbour Policy of the Union are looked at in more detail. By way of conclusion this paper argues that the discourses -rather than the decisions -which have dominated the integration process in recent years, mark something of a departure from the previous 'post-Westphalian' path of European integration, and instead point towards a more statist conception of the European Union. It remains to be seen to what extent these discourses will subsequently have ramifications in normative, institutional and policy-terms, and what resistance to the choices implicit in these discourses will have to confront. 4