Secession in the EU multi-level constitutional order

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’.

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.