The Changing Boundaries of the EU Member State Polity the What, Who and How of Late Sovereign Argument

The Changing Boundaries of the EU Member State Polity The What, Who and How of Late Sovereign Argument Alastair MacIver Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, 02 October 2018 European University Institute Department of Law The Changing Boundaries of the EU Member State Polity The What, Who and How of Late Sovereign Argument Alastair MacIver Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Professor Marise Cremona, European University Institute (Supervisor) Professor Carlos Closa, Institute of Public Goods and Policies, Madrid Professor Jo Shaw, University of Edinburgh Doctor Nikos Skoutaris, University of East Anglia © Alastair MacIver, 2018 No part of this thesis may be copied, reproduced or transmitted without prior permission of the author Researcher declaration to accompany the submission of written work Department of Law – LL.M. and Ph.D. Programmes I Alastair MacIver certify that I am the author of the work The Changing Boundaries of the EU Member State Polity: The What, Who and How of Late Sovereign Argument I have presented for examination for the Ph.D. at the European University Institute. I also certify that this is solely my own original work, other than where I have clearly indicated, in this declaration and in the thesis, that it is the work of others. I warrant that I have obtained all the permissions required for using any material from other copyrighted publications. I certify that this work complies with the Code of Ethics in Academic Research issued by the European University Institute (IUE 332/2/10 (CA 297). The copyright of this work rests with its author. Quotation from this thesis is permitted, provided that full acknowledgement is made. This work may not be reproduced without my prior written consent. This authorisation does not, to the best of my knowledge, infringe the rights of any third party. I declare that this work consists of 158, 851 words. Signature and date: 31 July 2018 Summary Sovereignty endures as a language tenaciously entrenched in the legal and political self- understanding of the Member State. So it is that the boundaries demarcating the Member State polity retain importance as signifiers of sovereignty in terms of both constituted and constituting power. This thesis critically re-evaluates disagreement about these boundaries of territory and citizenship through the exploration of four cases: overseas territories, the withdrawal of nationality, the loss of effective control and state succession. The analysis begins by acknowledging a fundamental split in how sovereignty is understood: it is comprehended both as claims made within the given institutional grid of a state, and as deeper framing ideas about how the legal world is explained and justified. These two meanings of sovereignty have become separated in a time of endemic overlap between legal orders, such as is particularly apparent in the European Union. As a consequence, it is argued that an account of the boundaries of the Member State polity needs to go beyond simply aggregating the four cases in terms of how they are conceived and resolved as practical problems. It also needs to engage with that deeper sense of sovereignty as discourses about how to define and justify the overlap of authority between the Union and the Member States. That deeper sense of sovereignty is given expression in sets of questions the thesis identifies as the “foundational”, “jurisdictional” and “structural” frames corresponding with the “what”, “who” and “how” of late sovereignty. Through a reading of the chief debates in the four cases selected in the thesis, it is argued that disagreement about Member State boundaries concerns not only the stark question of who or where is “in” or “out” of the polity but also involves a clash of ideas about the scope and purposes of the European project. Acknowledgements The work contained within this thesis, including any inaccuracy, is entirely my own. But I am profoundly grateful to the support and advice of so many people who have contributed to the journey towards the completion of this PhD. I first extend my heartfelt thanks to my supervisor, Professor Marise Cremona, for her energetic intellectual insight and generosity that have guided and enthused me throughout this research. I thank her for providing a model of how to approach European legal argument and her constant moral support along the challenging road. I equally extend my sincere gratitude to Professor Carlos Closa, Professor Jo Shaw and Doctor Nikos Skoutaris for agreeing to examine this thesis. I also thank Professor Adelina Adinolfi of the University of Florence for her supervision of the LL.M. thesis which preceded this. Her sage guidance helped to create the sinew and building blocks for this thesis. My sincere thanks are also due to Professor Daniel Halberstam of the University of Michigan Law School who provided invaluable oversight during my time as Michigan Grotius Research Scholar during the Spring Semester of 2015. I also thank Assistant Dean Roopal Shah for warmly welcoming me to the Law School. I was privileged to be in Ann Arbor at the same time as Professor Thomas Kleinlein, Professor George Dellis, Doctor Ellen Filor and Brian Kempfer and thank them for the many thought-provoking discussions in the Lawyers’ Club and Hutchins Hall. I also wish to thank Professor Carlos Closa for giving me the fascinating opportunity to work as Research Assistant for the preparation and reporting of the Troubled Membership conference of July 2014. I thank all the participants for the fabulous discussion of all the varied aspects of the problems. Furthermore, I am very grateful to Professor Morag Goodwin, Marieke Bosscher and the undergraduate students of Tilburg University for helping to make my first experience teaching EU law so enjoyable. My gratitude goes to the European University Institute and University of Michigan Law School for providing the best environment and intellectual nourishment imaginable during the years of research. My special thanks go to the librarians at both institutions, and to Linda Gilbert and Stephanie Wiederhold for helping to facilitate my time in Ann Arbor. I learnt so much from other Researchers at the European University Institute. I am very lucky to have had such brilliant colleagues, distinguished by solidarity. For their mutual support, I thank, among many others, Juha Tuovinen, Nathaniah, Haukur Logi Karlsson, Áslaug, Zane Rasnača, Martins, Dónal Hassett, Anita, Christophe and Jon-Erik. I was also very fortunate to meet the fantastic Esme and Miriam Hurley during my time in Florence. I thank them for their friendship, and welcoming me into their home so many times. My deep gratitude goes to Angelo, Rosanna and Lorenzo, and to my family in Edinburgh, especially my parents, Liz and Iain, and my sister, Eilidh, for their love, advice and unyielding support. Without the steadfast love and support of my wonderful wife, Alessandra, I would not have begun on this long, yet rewarding, journey, let alone had the strength to take tentative steps towards the finishing line. A tia tu. Alastair MacIver November, 2017 ii iii iv No one ever said, Right now, as I passed the wild leeks in Leipzig on my bicycle. No one said, That milky Alpine stream. Of Hungary, mostly the wedding. No one said, The children on Kalymnos, part fish, part gods. Diving at night for the bottom. Your lost butterfly earring. In Tessin, the warm rocks before the waterfall. Stopping under every bridge on the footpath to Tübingen to sing another verse. Getting closer. Getting there. What that old woman meant when she shouted from her balcony. The Danube on the way home. Watching the dragon boats and the fog come in. Croatian men playing bocce. The swallows lifting from the cobblestone. Coriander fields. Spreading a cloth outside. Dolmades, gigantes with garlic and fresh tomatoes. Breaking loaves. Yelling. Getting up and leaving the table angry. We never knew it was because of this beauty. No one said, Lou carrying baskets. Anna’s colored skirts. The street musician playing “Ode to Joy” every day, badly. Arguing about tent stakes when it was really the rosé-colored wheat. Fly-fishing on the field, far from the river. Red poppies. The strangeness giving in. Chasing Marion’s runaway goat through a meadow, through an orchard. Nearing it. Hearing it breathe. Nearing it again. Getting so angry we lay down on the grass and shouted through the apple blossoms, Fine just see how well you do out there. Molly Bashaw, Leaving the Continent v vi Table of Contents Acknowledgements ........................................................................................................... i List of Abbreviations ........................................................................................................ xi Table of Figures ............................................................................................................. xiii Chapter 1: Introduction .................................................................................................... 1 I. Sovereign Boundaries: Belief and Incredulity .................................................................... 1 II. National Belief and European Incredulity .......................................................................... 5 III. Challenges ......................................................................................................................

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