Secession of (A) Part(S) of a Territory of a Member State

SECESSION OF (A) PART(S) OF A TERRITORY OF A MEMBER STATE

AND HOW TO ADDRESS IT IN EU LAW

A thesis submitted to the University of Manchester for the degree of Doctor of

Philosophy in the Faculty of Humanities

2020

RICHARD E BRANT

School of Social Sciences

TABLE OF CONTENTS

ABSTRACT...... 8

DECLARATION ...... 10

ACKNOWLEDGMENTS ...... 13

THE AUTHOR ...... 14

CHAPTER ONE ...... 16

AN OVERVIEW OF THE MAIN ARGUMENTS OF, AND JUSTIFICATIONS FOR,

THIS THESIS ...... 16

1.0 The central focus of this thesis ...... 16

1.1 The original contribution of the thesis ...... 17

1.2 Primary research aim ...... 17

1.3 Research methodology ...... 19

1.4 Significance and relevance of the subject matter of this thesis ...... 23

1.5 An overview of the thesis structure ...... 41

CHAPTER TWO ...... 45

THE POSITION OF THE EU ON THE LEGALITY OF SECESSION ...... 45

2.0 Chapter overview ...... 45

2.1 Explicit provision(s) in the EU Treaties ...... 45

2.2 Does EU law impliedly permit or prohibit secession? ...... 46

2.2.1 The objectives of the EU Treaties and nature of the EU ...... 46

2.2.2 Respect for national constitutional identities in Article 4(2) TEU .... 50

2.2.3 Respect for territorial integrity in Article 4(2) TEU ...... 59

2.2.4 The rule of law in Article 2 TEU ...... 60

2.2.5 The principle of external self-determination ...... 64

2.3 The position of the EU’s institutions/bodies ...... 66

2.4 The position of public international law...... 71

2.5 Interim summary and concluding remarks ...... 77

CHAPTER THREE ...... 80

THE POSITION OF THE EU ON THE LEGAL CONSEQUENCES OF

SECESSION ...... 80

3.0 Chapter overview ...... 80

3.1 The EU Treaties ...... 81

3.2 ‘The Barroso view’ ...... 82

3.3 A critical examination of ‘the Barroso view’ ...... 88

3.4 The position of pubic international law ...... 95

CHAPTER FOUR ...... 101

SECESSION AND ROUTES TO EU MEMBERSHIP ...... 101

4.0 Chapter overview ...... 101

4.1 The normal EU accession procedure ...... 103

4.2 De facto enlargement ...... 105

4.3 EU membership negotiated through a parent state ...... 111

4.4 ‘Reverse Greenland’ option ...... 118

4.5 Reunification between Republic of Ireland and Northern Ireland ...... 122

4.6 Interim summary and concluding remarks ...... 126

CHAPTER FIVE ...... 133

A DUTY TO FACILITATE/NEGOTIATE EU MEMBERSHIP? ...... 133

5.0 Chapter overview ...... 133

5.1 What is meant by negotiation/facilitation and why should such a duty exist and be extended to the EU? ...... 134

5.2 The arguments in support of implying a duty on the Union to facilitate/negotiate EU membership ...... 139

5.2.1 Respect for democracy in Article 2 TEU ...... 141

5.2.2 Respect for sincere or loyal cooperation in Article 4(3) TEU ...... 144

5.2.3 The need to avoid an automatic and involuntary loss of EU

citizenship ...... 148

5.2.4 The existence of a procedure for negotiating a Member State’s

withdrawal from the EU in Article 50 TEU ...... 152

5.3 The impact such a duty would have on the main stakeholders ...... 153

5.4 Evidence of a flexible approach to territorial reconfiguration and EC membership ...... 158

5.5 Interim summary and concluding remarks ...... 165

CHAPTER SIX ...... 170

THE NEED FOR A COHERENT, RATIONAL AND SYSTEMATIC POSITION ON

SECESSION ...... 170

6.0 Chapter overview ...... 170

6.1 The call for clarity ...... 171

6.2 Conflict of norms and value pluralism ...... 175

6.3 The legal indeterminacy of the existing position ...... 179

6.3.1 The legality of secession ...... 179

6.3.2 The values in Article 2 TEU ...... 184

6.3.3 Democracy and the rule of law in the context of secession ...... 189

6.3.4 The legal consequences of (consensual) secession...... 202

6.3.4.1 The relationship between unilateral secession and EU

membership ...... 204

6.3.4.2 Article 4(3) TEU and opposing duties ...... 221

6.5 Norm conflict in the case-law and legal reasoning of the ECJ ...... 226

6.6 Interim summary and concluding remarks ...... 235

CHAPTER SEVEN ...... 238

THE DIFFERENT METHODS FOR ADDRESSING CONSENSUAL SECESSION

...... 238

7.0 Chapter overview ...... 238

7.1 The evaluative criteria ...... 239

7.2 The EU Treaties ...... 243

7.2.1 The rationale for each paragraph in the treaty amendment

proposed ...... 245

7.2.2 Suggested amendments to Article 49 TEU or the ‘Copenhagen

criteria’ for accession ...... 247

7.2.3 Suggested amendment to Article 2 TEU ...... 250

7.2.4 An assessment of this method or model against the evaluative

criteria ...... 254

7.3 A ruling of the CJEU ...... 263

7.3.1 Preliminary Reference Procedure ...... 264

7.3.2 Infringement Procedure ...... 268

7.3.3 An assessment of this method or model against the evaluative

criteria ...... 272

7.4 Soft ‘law’ ...... 275

7.4.1 An assessment of this method or model against the evaluative

criteria ...... 277

7.5 A role for the EU as a mediator in intra-state secessionist conflicts 281

7.5.1 An assessment of this method or model against the evaluative

criteria ...... 285

7.6 A comparison of the different methods for addressing secession ... 291

7.7 Interim summary and concluding remarks ...... 294

CHAPTER EIGHT ...... 297

8.0 Concluding remarks: a normative vision ...... 297

BIBLIOGRAPHY ...... 302

Word count: 91,254 words

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ABSTRACT

This thesis critically examines secession in the context of the EU. The work contributes to a topical, sensitive and important debate concerning the ‘EU constitutional order of States’: how EU law both deals and should deal with the secession of (a) part(s) of a territory of a Member State.

The secession of a region from its metropolitan state and simultaneous accession to the EU is unprecedented. Notwithstanding this, it is a real and present concern for the Union. The current position of the EU, however, lacks clarity. The EU Treaties do not expressly address the legality of secession, nor its legal consequences. Where they do so, impliedly or implicitly, a number of conflicting, competing or intertwined concepts, principles, values, objectives, interests and legal norms come into conflict. Whilst the Union’s political institutions have stipulated the procedural basis for re-entry into the EU, they have remained silent on the consequences of unilateral secession. The ECJ/CJEU has not yet been called upon to address a question of European law arising out of a case of secession. Thus, there is a need for a coherent, rational and systematic EU approach.

This thesis compares the potential different methods/models for addressing secession: an amendment to the Treaties, a ruling of the CJEU; clarification on the hierarchy of the EU’s values and their functional relationship, either in a CJEU judgment or the Treaties; soft law guidance, and; a role for the EU as a mediator in intra-state secessionist conflicts. In order to justify whether and why each model is a good and tenable idea or not, I explore whether each method is legally possible or doctrinally suitable, effective and politically viable. In particular, I evaluate each of them against the extent to which they meet/satisfy the rule of law criteria and, in particular, the sub-principles (procedural requirements) of the rule of law: legal certainty and democratic legitimacy. This thesis concludes that the ideal method/model for addressing secession would be by way of an amendment to the Treaties, which could be 8iused as a way forward in dealing with this difficult and politically sensitive issue to help clarify the law on secession and EU membership.

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DECLARATION

No portion of the work referred to in the thesis has been submitted in support of an application for another degree or qualification of this or any other university or other institute of learning.

COPYRIGHT STATEMENT i. The author of this thesis (including any appendices and/or schedules to this thesis) owns certain copyright or related rights in it (the “Copyright”) and he has given The University of Manchester certain rights to use such Copyright, including for administrative purposes. ii. Copies of this thesis, either in full or in extracts and whether in hard or electronic copy, may be made only in accordance with the Copyright, Designs and Patents Act 1988 (as amended) and regulations issued under it or, where appropriate, in accordance with licensing agreements which the University has from time to time. This page must form part of any such copies made. iii. The ownership of certain Copyright, patents, designs, trademarks and other intellectual property (the “Intellectual Property”) and any reproductions of copyright works in the thesis, for example graphs and tables (“Reproductions”), which may be described in this thesis, may not be owned by the author and may be owned by third parties. Such Intellectual Property and Reproductions cannot and must not be made available for use without the prior written permission of the owner(s) of the relevant Intellectual Property and/or Reproductions. iv. Further information on the conditions under which disclosure, publication and commercialisation of this thesis, the Copyright and any Intellectual Property and/or Reproductions described in it may take place is available in the University IP Policy which can be found at http://documents.manchester.ac.uk/DocuInfo.aspx?DocID=24420, in any relevant Thesis restriction declarations deposited in the University Library, The University Library’s regulations which can be found at http://www.library.manchester.ac.uk/about/regulations/ and in The University’s policy on Presentation of Theses.

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ACKNOWLEDGMENTS

I would like to express my thanks, in particular, to Dr. Dimitrios Doukas and Dr. Eleanor Aspey, who have helped me grow as a writer and academic researcher and for their support and guidance in supervising my thesis. I am also grateful to other members of the School of Law at the University of Manchester for comments and advice on my thesis at various stages throughout my PhD journey: Professor Jean D'Aspremont, Professor Ian Scobbie, Dr. Alan Cunningham, Dr. Bruce Wardhaugh, Mrs. Nordhausen Scholes and Mr. Fotis Vergis. I would also like to thank the administrative and support staff (in particular, Jackie Boardman), for their help and support throughout my studies. I would like to express my gratitude to Ajmal Mubarik for translating a number of useful articles from Catalan and Spanish into English. Finally, I would like to sincerely thank my internal examiner (Dr. Elaine Dewhurst, Senior Lecturer in Law at the University of Manchester) and external examiner (Dr. Nikos Skoutaris, Associate Professor in EU law, at the University of East Anglia), for their valuable and insightful comments and recommendations for amendments, following the oral examination of my thesis on 06 May 2020. Of course, this PhD would not have been possible without the incredibly generous and prestigious funding I received from the University of Manchester in the form of a fully funded studentship (The President’s Doctoral Scholar Award), for which I am most grateful. Finally, a very special gratitude goes out to my family (Ann, Geoffrey and Catherine), friends (and in particular, John Pearson) as well as my partner, Laura Ramsden (whom I now owe some quality time, for she has given up so much of hers whilst I have been working on my PhD), for all the unconditional moral and emotional support, encouragement and patience I have received whilst writing this thesis and in getting to the finish line.

THE AUTHOR

Richard studied for his law degree at Lancaster University (first class honours) and went on to gain a masters in law (distinction) from Lancaster University. Richard is an Associate Fellow of the Higher Education Academy. In addition to several years’ experience of teaching law at university (at Lancaster, Bolton, Manchester and Edge Hill University), Richard previously worked in practice, as a paralegal/fee earner at a number of leading UK law firms, including a period of time as an investigative researcher, with the Independent Police Complaints Commission, on the Hillsborough investigation. Richard qualified as a barrister and was called to the Bar by The Honourable Society of Gray’s Inn in 2010. Richard is currently the Academic Manager at CILEx Law School.

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CHAPTER ONE

AN OVERVIEW OF THE MAIN ARGUMENTS OF, AND JUSTIFICATIONS

FOR, THIS THESIS

1.0 The central focus of this thesis

This thesis mainly focuses on consensual secession (i.e. the secession of a region with the consent or negotiated agreement of its metropolitan state). The vast majority of or all secessions are going to be consensual. This is owing to the fact that the overwhelming majority of liberal democracies in the world do not allow a referendum on the secession of (a) part(s) of their own territory.

Only two states in the world expressly permit and enshrine a right to secession in their respective constitutions (Ethiopia and the Federation of Saint Kitts and

Nevis). Furthermore, no EU Member State permits an absolute or unconditional right to secession and where secession is permitted, it must be carried out in accordance with the constitutional requirements of that state. It would be virtually impossible for a region that has seceded unilaterally to gain recognition as an independent sovereign state. Cases of non-consensual secession would, therefore, have to be dealt with outside of the EU legal order, involving issues of public international law; this thesis is concerned with the consequences of secession (such as loss of membership) and how to address them in EU law. This thesis does, however, explore an interesting but, up to now, underexplored question in the literature on the relationship between unilateral secession and EU membership, particularly how the EU should

16 respond to cases of unilateral secession and whether or not a such a region would be prohibited from applying to join the EU sine die.

1.1 The original contribution of the thesis

This thesis contributes to a growing body of literature that has developed in, at least, the last 10 years through key contributions of academics such as Weiler,

Schütze, Kochenov, Bengoetxea, Closa, amongst others. This thesis makes an original contribution to this literature in a number of ways. It does so by building on existing literature, but it brings into sharp focus the issue of secession and EU membership. The main original contribution of this thesis is that it goes beyond a positivist and doctrinal analysis of the position of the

EU on secession. It is solutions driven and focussed. This thesis proposes the ideal or normative method or model for addressing secession in EU law, bringing to the fore the lack of clarity on a number of issues in this area. In chapter seven, this thesis concludes that the ideal method or model would be an amendment to the Treaties, which could solidify the law in this area.

1.2 Primary research aim

The primary research aim of this thesis was to propose the ideal method or model for the EU to address secession. In order to justify whether and why each method or model is a good and tenable idea or not, I evaluate each of them against a set of key parameters or evaluative criteria. I explore whether each method is legally possible or doctrinally suitable, effective and politically viable. In particular, I evaluate each of them against the extent to which they

17 meet/satisfy the rule of law criteria and, in particular, the sub-principles

(procedural requirements) of the rule of law: legal certainty and democratic legitimacy. This allowed for a comparative analysis of the strengths and weaknesses of each model in order to arrive at a conclusion that is supported by reasoned justification and argumentation.

1.3 Secondary research aims and questions

In order to set out what the legal position should be, it was necessary to highlight and critically discuss the existing legal position. The Treaties do not expressly address the legality of secession, nor its legal consequences.

Furthermore, the position of the Union’s political institutions on the consequences of secession lacks clarity, and the ECJ/CJEU has not yet been called upon to address a question of European law arising out of a case of secession. Thus, one of the secondary research questions addressed in this thesis was to determine whether anything can be implied, or relied on in support, from existing provisions in the Treaties with respect to the legality of secession and its consequences.

The most obvious consequence of secession in the EU is, perhaps, the loss of

EU membership. Therefore, another sub-research question was to explore the routes to EU membership open to seceding entities. In particular, this question involved determining the legally correct route and procedural basis for re-entry into the EU (Article 48 or 49 TEU). This issue has been the subject of much contention in the literature and at a political level, owing to the desire

18 of the majority of independence/secessionist movements to retain their EU membership. In order for a seceding entity to ensure continuity in its EU membership, it was necessary to address the interrelated question over whether the Union has a legal duty or obligation to facilitate/negotiate a seceding entity’s EU membership.

In light of Catalonia’s recent and unsuccessful attempt to secede from the

Kingdom of Spain, this thesis also addresses the prospect of EU membership following a case of unilateral secession. This issue has been remarkably underexplored in the literature. Another secondary research aim of this thesis was to highlight the areas of EU law on secession which are unclear and where conflict exists or could arise. This thesis argues there is a need, at an EU- level, to elucidate and/or further develop a theory, argument or conclusions about the interaction or balance between the different conflicting, competing or intertwined concepts, principles, values, objectives, interests, policies and legal norms that come into conflict in the context of secession. Conflict also arises between separate provisions in the Treaties and between conflicting parts of the same provisions, especially when that provision contains separate competing or conflicting values of equal or relative indeterminate status/weight.

1.3 Research methodology

The two main research methods used in this thesis were a positivist or doctrinal approach (‘black-letter law’ analysis), combined with a normative approach.

The principal aims of the doctrinal legal research were on locating the sources of the law and interpreting and analysing that law. The analytical and legal reasoning aspect of the research in this thesis is necessarily a qualitative one.

The area of study in this thesis required an analysis of treaties, case-law, statute, as well as other legal sources and authoritative materials. As a starting point, doctrinal legal research allowed for an examination of how EU law deals with the secession of (a) part(s) of a territory of a Member State. A normative approach allowed for a discussion of proposals/recommendations on how the

EU should deal with secession and, in particular, what the ideal method or model for addressing secession should be and why. The rationale and effect of this choice of methodology on the conclusions reached is that it allowed for a solutions-driven/focussed thesis, informed by objective analysis and reasoned justification, rather than a purely descriptive account of the law.

The research questions in this thesis required an examination of, both, primary and secondary research sources/material. The Treaties provided a source of primary law and black-letter law analysis in many parts of this thesis. Owing to the silence in the Treaties and the absence of an explicit provision specifically addressing secession, this required reasoning by way of an analogy with other existing provisions in the Treaties. For example, in chapters two and three of this thesis, the legality of secession and its consequences are considered in light of the rule of law and the democratic principle in Article 2

TEU, as well as the principle of (respect for) national constitutional identities and the duty of sincere/loyal cooperation in Article 4(2) and (3) TEU.

Furthermore, in chapter five, the arguments in support of whether a duty to

20 facilitate/negotiate EU membership with a seceding entity can be extended to the EU, are considered in the light of respect for the democratic principle in

Article 2 TEU, the duty of sincere or loyal cooperation in Article 4 TEU, the need to avoid an automatic and involuntary loss of EU citizenship (Article 20

TFEU) and on the existence of a procedure for negotiating a Member State’s withdrawal from the EU (Article 50 TEU). This thesis also reviewed the

(constitutional) position/regimes of all EU Member States on the legality of secession by analysing the constitutional texts of these states, including in the case of the UK (a former EU Member State), its ‘constitutional traditions’.

Secession in the context of the EU encompasses a number of different legal

(and political) issues of a bilateral, regional and multilateral nature. In light of the ruling in Van Gend en Loos, one must first look to the ‘new legal order of international law’, established by the EU Treaties1, in order to determine questions of European law. However, the Treaties do not expressly address the legality of secession, nor its legal consequences. Thus, it was necessary, in chapters two and three of this thesis, to consider whether there are any rules of public international law that could apply to a case of secession in the EU.

In addition to this, documentary research/content analysis of secondary sources in chapters two and three of this thesis allowed for an in-depth and critical examination of publicly accessible2 statements of representatives

1 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1, 12. 2 With regard to private correspondence concerning the compatibility of unilateral secession with Article 4(2) TEU between the, then, Secretary of State for the European Union, Íñigo Méndez de Vigo y Montojo and the Vice-President and Commissioner of Justice, Viviane Reding, dated 02

21 of/from the EU’s political institutions on the legality and consequences of secession. This included an analysis of support for these statements in EU or public international law, their (lack of) legal effect and impact in the context of the wider debate on secession, owing to the (perceived) lack of neutrality of the Union’s political institutions on secession.

The methodology in chapter six of this thesis was primarily literature-based, focussing on theoretical research and an analysis of particular concepts, principles and theories and how they might be applied to the research aims and questions of this thesis. This methodology integrated research that originated in the fields of jurisprudence, the philosophy of law, legal ethics/moral theory and theories of human rights.3 In particular, I examined the concepts of the conflict of norms and value pluralism (as a subset of norm conflict), as well as the theory on essentially contested concepts. I applied these to the concepts of democracy and the rule of law, drawing conclusions on how these concepts (and the relationship between them) should be understood and applied in the context of secession in the EU. This required the selection and discussion of theoretical material and doctrinal research, applied and extrapolated to a specific context. For example, this research method allowed me to arrive at the conclusion that democracy and the rule of law, of themselves, are subject to a degree of clarity and certainty but, when applied in specific contexts (such as secession) their application becomes less clear or certain. This theoretical approach was also combined with an

and 04 October 2012, respectively, these were obtained following a documents access request to the European Commission. 3 See, in particular, for example:

22 evidence-based approach. Looking at how these concepts have been applied in practice, in EU law (e.g. by the, then, Council of the European Communities with respect to the recognition of new states in Eastern Europe, and in a number of legal documents and political declarations, such as by the European

Commission in the pre-accession process and in the application of the

‘Copenhagen criteria’ for new Member States), it can be seen the two concepts are interrelated or co-dependent and mutually reinforcing: the modern

European idea of democracy encompasses the rule of law.

1.4 Significance and relevance of the subject matter of

this thesis

This thesis addresses a recent and very topical issue of particular importance and significance. Within the context of public international law, the concept of secession and the creation of a new sovereign state is not a new or novel phenomenon. Its prevalence has risen significantly, albeit discontinuously4, since the early 19th Century, but especially since the end of WWII, the fall of the Berlin Wall and collapse of the Soviet Union5; the majority of the

4 Andreas Wimmera and Yuval Feinsteina, ‘The Rise of the Nation-State across the World, 1816 to 2001’ (2010) 75(5) American Sociological Review 764, 765. 5 Tom Franck. ‘Postmodern Tribalism and the Right to Secession’, at 3, and Rosalyn Higgins, ‘Postmodern Tribalism and the Right to Secession: Comments’, at 3 and 29, respectively, in Catherine Brölmann, René Lefeber and Marjoleine Zieck (eds.) Peoples and Minorities in International Law (Martinus Nijhoff Publishers 1993); Pascal Boniface, ‘The Proliferation of States’ (1998) 21 The Washington Quarterly 109, 112 and 114, in particular, and 111 - 126, generally; Alberto Alesina and Enrico Spolaore, The Size of Nations (Massachusetts Institute of Technology 2003), 1, 193 and 195; James Crawford, The Creation of States in International Law (2nd ed., Oxford University Press 2007), 4; Tanisha Fazal and Ryan Griffiths, ‘A State of One's Own: The Rise of Secession Since World War II’ (2008) 15(1) The Brown Journal of World Affairs 199, 200; Ryan Griffiths and Ivan Savić, ‘Globalization and Separatism: The Influence of Internal and External Interdependence on the Straegies of Separatism’, at 326 in Jenny Harris (ed.) The Nation in the Global Era: Conflict and Transformation (Brill 2009); Bridget Coggins, ‘The History of Secession: An Overview’, at 26 – 28, in Aleksandar Pavković and Peter Radan (eds.) The Ashgate Research Companion to Secession (Ashgate Publishing 2011), and; Ryan Griffiths,

23 independence referendums held since 1980 were unilateral independence referendums.6 The last two centuries have witnessed a transition from stage aggregation/expansion to fragmentation/contraction.7 During the 19th and 20th centuries, the vast majority of new states, therefore, owed their initial existence to secession. The 20th century has witnessed what has been described as a proliferation of new states.8 We are now living in ‘an age of secession’.9 State proliferation is likely to continue, albeit at a reduced rate.10 Notwithstanding this, the secession of (a) part(s) of a territory of an EU Member State and simultaneous accession to the EU is unprecedented.

However, a number of existing EU Member States owe their initial existence or ‘birth’ as states, and subjects of international law, to secession.11 Instances of secession have also occurred on/within the territory of Europe, notably in

Age of Secession: The International and Domestic Determinants of State Birth (Cambridge University Press 2018), 1 - 2. 6 Matt Qvortrup, ‘Independence Referendums: History, legal status and voting behaviour’, at 144, in Carlos Closa, Costanza Margiotta and Giuseppe Martinico (eds.) Between Democracy and Law: The Amorality of Secession (Routledge 2019 Kindle edition). 7 Ryan Griffiths, Age of Secession: The International and Domestic Determinants of State Birth (Cambridge University Press 2018), 1 and 3. 8 Pascal Boniface, ‘The Proliferation of States’ (1998) 21 The Washington Quarterly 109, 111. See, for an alternative view: Scott Pegg, ‘The non-proliferation of states: A reply to Pascal Boniface’ (1999) 22(2) The Washington Quarterly, 139 - 147, generally. 9 Ryan Griffiths, Age of Secession: The International and Domestic Determinants of State Birth (Cambridge University Press 2018), 1. 10 Ibid, 198. 11 Birthe Hansen, ‘Globalization and European State Formation 1900 - 2000’ (2002) 37(3) Cooperation and Conﬂict: Journal of the Nordic International Studies Association 303, 303; Photini Pazartzis, ‘Secession and international law: the European dimension’, at 355, in Marcelo Cohen, Secession: International Law Perspectives (Cambridge University Press 2006); Roland Vaubel, ‘The Political Economy of Secession in, and Withdrawal from, the European Union’ (2014) 1. Available at: https://www.vwl.uni- mannheim.de/media/Lehrstuehle/vwl/Vaubel/Downloads/The_Political_Economy_EU.pdf (last accessed: 27 June 2018); Graham Avery, ‘Independentism and the European Union’ (7 May 2014) European Policy Centre - Policy Brief. Available at: http://aei.pitt.edu/56505/1/pub_4393_independentism_and_the_eu.pdf (last accessed: 25 October 2016), and; Jean-Claude Piris, ‘Political and Legal Aspects of Recent Regional Secessionist Trends in some EU Member States (I), at 70, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017).

Central and Eastern Europe. Examples of such cases include Slovenia and

Croatia (following the dissolution of Yugoslavia in 1991), that later joined the

EU in 2004 and 2013, respectively, and the Czech Republic and Slovakia

(following the dissolution of Czechoslovakia into two separate counties in

1993), that both went on to join the EU in 2004. Thus, secession occurred before these territories applied for membership of the EU. Secession has also taken place on/within the actual territory of existing EU Member States. Such cases have, in the main, occurred in the context of de-colonisation. They marked the beginning of post-WWII independence movements and demands for recognition of independence from some of the founding European members and former imperial and colonial powers. The Kingdom of Belgium, the French Republic and the Kingdom of the Netherlands represented three of the six founding members of the EEC/EU, following the signing of the Treaty of Paris in 1951. The Democratic Republic of Congo (formerly the Belgian

Congo) achieved its independence from the Kingdom of Belgium in 1960.

Algeria (which was in a union with France) seceded from the French Republic in 1962 and declared its independence, pursuant to the Évian Accords12, which resulted in Algeria negotiating its withdrawal from the, then, EEC, through a series of bilateral negotiations. Another example is the Netherlands Antilles, which was dissolved in 2010. Following its dissolution, Aruba, Curaçao, and

Sint Maarten became, and now have the status of, a constituent country of the

Kingdom of the Netherlands whereas Bonaire, Sint Eustatius, and Saba gained the status of a special municipality of Netherlands, which is a

12 See: ‘Declaration recognising Algeria’s independence’ (Paris, 3 July 1962). Available at: https://www.cvce.eu/en/education/unit-content/-/unit/dd10d6bf-e14d-40b5-9ee6- 37f978c87a01/3c3e6d27-44ed-4c50-9be5-88bb8f0eb9ca/Resources#05d4d86f-da65-4c7e- b4d7-e09999516f68_en&overlay (last accessed: 02 February 2018).

25 constituent country and legally distinct from the Kingdom itself. However, it is to be noted none of these regions/territories went on to apply for EU membership. Thus, there has been a “new wave of secessionism” (within EU

Member States) and a rebirth of secession in democratic contexts.13

There are a number of active separatist movements/political parties in regions or territories, with a pro-EU sentiment/agenda, that are pursuing independence, greater autonomy or devolved powers from existing EU

Member States. Examples include the regions of Corsica, Sardinia, Sicily,

South Tyrol (which, if it were to gain independence, seeks a reunification with

Austria) and Venice in Italy, the Basque Country in Spain, Brittany in France, as well as Flanders in Belgium (which could lead to the dissolution of Belgium).

In nearly all cases, regional independentist or separatist movements are pro-

European.14 Following the UK’s decision to withdraw from the EU in 2016, the

13 See the ‘introductory chapter’, at 1 – 2, in Carlos Closa, Costanza Margiotta and Giuseppe Martinico (eds.) Between Democracy and Law: The Amorality of Secession (Routledge 2019 Kindle edition). 14 See, for example, paragraph 1.1 of the By-Laws of the Nieuw-Vlaamse Alliante (New Flemish Alliance). Available at: http://www.n-va.be/sites/default/files/statuten20160614.pdf (last accessed: 10 May 2017). Furthermore, according to an MP in the Catalan regional parliament: “Our movement is largely pro-European. We are and will continue to be European citizens. We want to become the next EU member state…”. See: Jordi Sole i Ferrando, Secretary General of the European Free Alliance and an MP in the Catalan Parliament with the Republican Left of Catalonia, ERC (August 2015). However, the Cymru Sovereign, in Wales (including other parties), seeks its independence from the UK, but does not seek EU membership. See: Cymru Sovereign, Manifesto – ‘A ten point summary of the Cymru Sovereign manifesto’ – see point no. 2. Available at: http://www.cymrusovereign.cymru/manifesto/ (last accessed: 31 May 2019). The position of political parties on European integration have changed over time. Sinn Féin in Northern Ireland, for example, have consistently opposed European integration, although their position has now changed from ‘consistent opposition’ to ‘cautious and critical engagement’. See: Agnès Maillot, ‘Sinn Féin's Approach to the EU: Still More ‘Critical’ than ‘Engaged’?’ (2009) 24(4) Irish Political Studies 559, 559, 565, 566 and 573. Moreover, The Scottish National Party (SNP) have changed their position from one of hostility to positive acceptance. See: Andrew Devenney, ‘Regional resistance to European integration: the case of the Scottish National Party, 1961-1972’ (2008) 33 Historical Social Research 319, 332 - 337. Available at: https://www.ssoar.info/ssoar/handle/document/19157 (last accessed: 20 July 2018). In contrast, note the position of the current Scottish government: The Scottish Government, ‘Scotland’s Future – Your Guide to an independent Scotland’ (2013), 216 - 224. Available at: http://www.gov.scot/Resource/0043/00439021.pdf (last accessed: 07 August 2016).

26 leader of the SNP declared she wished Scotland to remain a part of the EU.15

Similar sentiments were expressed in the run-up to Scotland’s independence referendum from the UK in 2014. Had there been a vote in favour of independence, the Scottish Government had committed to seek EU membership immediately after gaining independence.16 The push for independence in Scotland, which reignited following the UK’s decision to withdraw from the EU in 2016, and the unilateral declaration of independence in Catalonia in 2017 represent two recent and particularly noteworthy examples of independence movements seeking membership of the EU. This is due to the constitutional issues they raise and the scholarly attention and media coverage they have received. The potential effect of the UK’s decision to withdraw from the EU on 31 January 2020, on the secessionist tendencies of its constituent nations, points to the intertwined nature of the European constitutional landscape and the EU polity.17

On 01 October 2017 Catalonia held an unconstitutional referendum on independence according to the Spanish Tribunal Constitucional.

Notwithstanding the fact the rules have been contested, legally speaking, the organiser of the referendum followed Catalan law, governing the holding of the

15 Scottish Government, ‘Scotland – A European Nation’ (November 2016) 1, 2. Available at: http://www.gov.scot/Publications/2016/11/4961 (last accessed: 24 February 2017), and; Scottish Government, ‘Scotland’s Place in Europe’ (December 2016) 1, 6. Available at: http://www.gov.scot/Publications/2016/12/9234 (last accessed: 24 February 2017). 16 The Scottish Government, ‘Scotland’s Future – Your Guide to an independent Scotland’ (2013), 220. Available at: http://www.gov.scot/Resource/0043/00439021.pdf (last accessed: 07 August 2016). 17 Nikos Skoutaris, ‘On Brexit and secession(s)’, at 199, in Carlos Closa, Costanza Margiotta and Giuseppe Martinico (eds.) Between Democracy and Law: The Amorality of Secession (Routledge 2019 Kindle edition); Nikos Skoutaris, ‘The De-Europeanisation of Border Conflicts - The effect of Brexit on territorial borders and Boundaries’ On Secessions, Constitutions and EU law. Available at: ‘http://www.skoutaris.eu/new-page (last accessed: 08 May 2020).

Catalan independence referendum on 01 October 2017.18 This was followed by a unilateral declaration of independence, as a result of a resolution passed by the Parliament of Catalonia on 27 October 2017. Whilst Article 2 of the

Spanish Constitution guarantees the “nationalities and regions” of Spain the right to autonomy and self-government, the unity of the Spanish nation is

“indissoluble”, and the homeland of all Spaniards is “indivisible". Thus, the

Spanish Constitution is opposed to secession. The Spanish Tribunal

Constitucional has also ruled that the citizen participation process19 on secession, held by the Catalan people on 09 November 2014, was unconstitutional.20 The same court had, previously, declared parts of the 2013

Catalan ‘Declaration of Sovereignty and of the Right to Decide of the Catalan

People’21 to be unconstitutional.22 This must be exercised according to the

Spanish Constitution and does not, therefore, amount to an absolute right to self-determination stricto sensu.23 According to Article 92 of the Spanish

Constitution, “political decisions of special importance” may be put to a referendum. However, the Spanish Constitutional Tribunal held that matters of fundamental constitutional importance would need to follow the procedure for constitutional amendment and there would need to be a further

18 The Law on the Referendum on Self-determination of Catalonia (06 September 2017). 19 Lucía Payero-López, ‘The ‘citizen participation process’ in Catalonia: past, present and future’ (2015) 36(3) Liverpool Law Review 237, 244 - 245 and 250 - 251. 20 Spanish Constitutional Tribunal Judgment (29 September 2014). Available in Spanish at: http://ep00.epimg.net/descargables/2014/09/29/1dbcb394a7f84a48b08341f9b5091bc3.pdf (last accessed: 26 June 2017). 21 The official text is available at: http://www.catdem.org/cat/downloads2/declaration-of- sovereignty.pdf (last accessed: 08 February 2016). 22 Spanish Constitutional Tribunal (25 March 2014). Available at: http://www.tribunalconstitucional.es/es/jurisprudencia/restrad/Paginas/STC42-2014.aspx (last accessed: 24 January 2016). The same court had provisionally suspended this Declaration on 08 May 2013. 23 Víctor Ferreres Comella, ‘The Spanish Constitutional Tribunal Confronts Catalonia's 'Right to Decide' (Comment on the Judgment 42/2014)’ (2014) 10 European Constitutional Law Review 571, 573.

28 referendum.24 Article 149 of the Spanish Constitution stipulates the Spanish government has exclusive competence to authorise the holding of a referendum.25 Thus, Spanish regions cannot unilaterally hold an independence referendum.26 Such an action would also breach the Catalan

Statute of Autonomy, which does not grant the Catalan Parliament the right to legislate for a referendum.27

The European Parliament stated the independence referendum and subsequent unilateral declaration of independence by the Catalan regional

Parliament to be unlawful and in breach of the rule of law.28 However, strictly speaking, the powers of the European Parliament do not include the power to declare a referendum illegal (or anything else for that matter). Such a statement was, instead, a purely political assessment by the, then, President of the European Parliament and voting MEP’s. Notwithstanding this, the

European Parliament did not go on to clarify what the consequences of such a breach would be with regard to EU membership.

24 Spanish Constitutional Tribunal (22 September 2008). 25 Article 149 (para. xxxiii) of the Spanish Constitution. 26 Víctor Ferreres Comella, ‘The Spanish Constitutional Tribunal Confronts Catalonia's 'Right to Decide' (Comment on the Judgment 42/2014)’ (2014) 10 European Constitutional Law Review 571, 580. 27 Nikos Skoutaris, ‘Blog – Homage to Catalonia’ (06 October 2017) On Secessions, Constitutions and EU law. Available at: http://www.skoutaris.eu/blog (last accessed: 09 October 2017). 28 European Parliament, ‘EP Plenary session: Constitution, rule of law and fundamental rights in Spain in the light of the events of Catalonia. Closing statement by Frans Timmermans, First Vice-President of the EC (15:56 – 16:00)’ (04 October 2017). Available at: http://audiovisual.europarl.europa.eu/Assetdetail.aspx?id=44848d82-9c5d-4bd2-ab96- a80200e838f3 (last accessed: 09 October 2017), and; European Parliament ‘European Parliament President statement on the situation in Catalonia’ (27 October 2017). Available at: http://www.europarl.europa.eu/the-president/en/newsroom/european-parliament-president- statement-on-the-situation-in catalonia?webaction=view.acceptCookies (last accessed: 31 October 2017).

However, Catalonia’s recent attempt at unilateral secession did not provide the

EU with a real opportunity to clarify the law in this area. Whilst Catalonia declared its independence from Spain, the Spanish central government subsequently (immediately) imposed direct rule over the Catalan government in October 2017, suspending their political autonomy. The ‘independence’ of

Catalonia was actually suspended by the President of the Generalitat, Mr.

Puigdemont, 8 seconds after independence was declared. The effect of the declaration was also annulled shortly thereafter by the Spanish Constitutional

Court. In that respect, no state (let alone an international organisation29) could have actually recognised Catalonia’s independence.

The referendum on the UK’s ‘in/out membership of the EU’ on 23 June 2016 returned a vote in favour of withdrawal from the EU. Notwithstanding the fact that Scotland voted to remain in the EU, Scotland has now lost its membership of the EU following the UK’s (including its constituent parts) withdrawal from the EU on 31 January 2020. The UK is now a ‘third country’ with respect to the

EU.30 Scotland had sought to retain its EU membership and one of the options

29 It is acknowledged in this thesis (see Chapter 6, Section 6.4.3.1) that international organisations (and its executive branch), such as the EU, do not have the power or legal competence to recognise independent States. This is a prerogative of States themselves. 30 The European Union (Withdrawal Agreement) Act 2020 modifies the European Communities Act 1972 to reflect the fact that the UK has now left the EU and that the UK’s relationship with the EU, during the Transition Period, is to be treated ‘as if it were a member of the EU’, rather than as a Member State. The European Union (Withdrawal) Act 2018 repeals the European Communities Act 1972 from the date of the UK’s departure from the EU, although the European Union (Withdrawal Agreement) Act 2020 postpones or suspends (by way of a ‘savings provision’) the effects of the European Union (Withdrawal) Act 2018 until the end of the Transition Period and, therefore, preserves the effect of the (repealed) European Communities Act 1972 until the end of the Transition Period. Accordingly, during the Transition Period which is currently set to end on 31 December 2020 (unless extended), most EU law, with the exception of certain provisions, will still apply to the UK.

30 which had been proposed by the Scottish Government31 was to join the EU as an independent sovereign state in the event of the UK’s withdrawal from the

EU.32

The Scottish government has suggested amendments to the Scotland Act

1998 in Scotland’s case for giving the people of Scotland the right to choose their own constitutional future.33 These amendments are aimed at recognising the right of self-determination of the Scottish people and the competence of the Scottish Parliament to organise an independence referendum (amending

Part 1, Schedule 5, of the Scotland Act 1998)34, as well as further provisions that would follow a vote for Scottish independence, such as the legislative preparations that would need to take place during the proposed transition period, including a duty on both the Scottish and UK government to cooperate, to ensure that any vote to become independent is given effect and respected.35

The SNP’s manifesto declared the Scottish Parliament have the right to hold another referendum: “…if there is a significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out the

31 On the option to secure EU membership ‘from within the EU’, see: Scottish Government, ‘Scotland’s Place in Europe’ (2016) at vi, 1 (para. 3), 28 (para. 116) and 40 (para. 174). Available at: http://www.gov.scot/Resource/0051/00512073.pdf (last accessed: 10 February 2017). 32 Ibid, at vi, 1 (para. 3), 28 (para. 116) and 40 (para. 174). 33 Scottish Government, ‘Scotland's right to choose: putting Scotland's future in Scotland's hands’ (19 December 2019) 1. Available at: https://www.gov.scot/publications/scotlands-right-choose-putting- scotlands-future-scotlands-hands/ (last accessed: 23 December 2019). 34 The draft provision reads as follows: “2 Scottish Parliament’s competence to legislate for an independence referendum. In Part 1 of schedule 5 of the Scotland Act 1998 (general reservations), after paragraph 5 insert — “5A Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom”. 35 Scottish Government, ‘Scotland's right to choose: putting Scotland's future in Scotland's hands’ (19 December 2019) 1, 28 - 33. Available at: https://www.gov.scot/publications/scotlands-right-choose- putting-scotlands-future-scotlands-hands/ (last accessed: 23 December 2019).

EU against our will”.36 However, unless this was expressed to be a consultative or advisory referendum37 (which would be non-binding), because the Union between England and Scotland is a reserved matter under the

Scotland Act 1998, the general consensus appears to be that a further referendum over Scottish independence from the UK would not be binding or legitimate without the consent of Westminster. In other words, it would appear the Scottish parliament could not unilaterally hold a binding referendum on independence.38 However, this is not an entirely settled issue.39

36 The Scottish National Party, ‘SNP manifesto 2016’, 23. Available at: http://www.snp.org/manifesto (last accessed: 11 July 2016) and, see also: Scottish Government, ‘First Minister’s Press Conference’ (08 November 2016). Available at: https://news.gov.scot/speeches-and-briefings/first-ministers-press-conference-1 (last accessed: 01 June 2017). 37 According to MaCormick: “The Scottish Executive has unlimited powers to negotiate with the Westminster Government about any issue which could be the subject of discussion between them, therefore it could seek an advisory referendum.” See: Neil MacCormick, ‘Is there a constitutional path to Scottish independence?’ (2000) 53(4) Parliamentary Affairs 721, 726. 38 Schedule 5 of the Scotland Act 1998 (on powers reserved to Westminster) is silent on referendums. Technically, therefore, the Scottish parliament could still hold a referendum. See: Matthew Qvortrup, ‘What’s law got to do with it? The Scottish parliament and the independence referendum’, at 54, in Gerry Hassan and Russell Gunson, Scotland, the UK and Brexit – A Guide to the Future (Luath Press Ltd 2017). In Imperial Tobacco Ltd. v The Lord Advocate [2012] CSIH 9, at para. 149, it was stated that: “The scheme whereby legislative competence is conferred on the Scottish Parliament is one where what is not specifically identified as being outside competence is devolved’. Furthermore, in Imperial Tobacco Ltd. v The Lord Advocate [2012] UKSC 61, at para.15, it was noted that: “…one of the purposes of the 1998 Act was to enable the Parliament to make such laws within the powers given to it by section 28 as it thought fit. It was intended, within carefully defined limits, to be a generous settlement of legislative authority”. Notwithstanding that, according to Lord Hope in AXA General Insurance Limited and others v The Lord Advocate and others [2011] UKSC 46, at para. 46: “the Scottish Parliament’s power to legislate is not unconstrained. It cannot make or unmake any law it wishes”. As it has been noted, an advisory referendum could be held: “For the Scots Parliament to seek to discover if the electorate would welcome further constitutional reform does not necessarily amount to constitutional reform per se”. See: Ian Loveland, Constitutional Law, Administrative Law and Human Rights: A Critical Introduction (Oxford University Press, 2018), 333. If the purpose of a referendum related to a reserved matter, such as determining Scotland’s future legal relationship with the UK Parliament, this would be outside the competence of the Scottish Parliament. 39 According to the UK government, the Scottish Parliament cannot hold a binding referendum on Scottish independence. See: UK Government, ‘Scotland’s constitutional future: A consultation on facilitating a legal, fair and decisive referendum on whether Scotland should leave the United Kingdom’ (2012) 1, 11. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/39248/Scotlands _Constitutional_Future.pdf (last accessed: 30 September 2017)). However, the view of the Scottish Government is that this is possible within a limited context, such as with respect to: “…changes to the powers of the Scottish Parliament within the framework of devolution” (see: Scottish Government, ‘Your Scotland, Your Referendum’ (2012) 1, 5. Available at: http://www.gov.scot/Resource/0038/00386122.pdf (last accessed: 30 September 2017)). See also: Nick Barber, ‘Blog - Scottish Independence and the Role of the United Kingdom’ UK

An express agreement was reached between the two respective governments in relation to the first referendum in 2014, giving the Scottish Parliament the right to determine and legislate for both the timing and wording of the referendum.40 These are issues that had to be agreed, which implies

Westminster, ultimately, has the right to decide these issues.41 If the UK were to thawt the process in any way it could breach section 30 of the Edinburgh

Agreement, which requires that the UK central and Scottish government are:

“…committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.”42 However, this does not state what either of the two governments must do in order to respect the result.43 Moreover, the status of the Edinburgh Agreement has been questioned44, which was/is not legally binding.

Constitutional Law Association (2012). Available at: https://ukconstitutionallaw.org/2012/01/11/nick-barber-scottish-independence-and-the-role-of- the-united-kingdom/ (last accessed: 30 September 2017); Stephen Tierney, ‘Legal Issues Surrounding the Referendum on Independence for Scotland’ (2013) 9 European Constitutional Law Review 359, 361 and; Nicholas Aroney, ‘Reserved matters, legislative purpose and the referendum on Scottish independence (2014) 3 Public Law 421, 443 – 445. 40 See section 29A of the Scotland Act 1998. 41 The Scottish Government, ‘Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland’ (15 October 2012), at paras. 4 to 8 (on ‘timing’ and the ‘question’). Available at: http://www.gov.scot/Resource/0040/00404789.pdf (last accessed: 11 July 2016); Matthew Qvortrup, ‘What’s law got to do with it? The Scottish parliament and the independence referendum’, at 54, in Gerry Hassan and Russell Gunson (eds.), Scotland, the UK and Brexit – A Guide to the Future (Luath Press Ltd 2017). 42 Comment by Sionaidh Douglas-Scott’ (17 September 2014) Verfassungsblog – On Matters Constitutional. Available at: http://verfassungsblog.de/scotland-eu-eleventh-hour-thoughts- contested-subject-2/ (last accessed: 09 August 2016). 43 Christine Bell, ‘The Legal Status of the 'Edinburgh Agreement' (5 November 2012). Available at: http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articl eType/ArticleView/articleId/431/Christine-Bell-The-Legal-Status-of-the-Edinburgh- Agreement.aspx (last accessed: 28 October 2016). 44 Hansard, Hansard HC Deb vol 556 column 745, ‘Clause 28 - Legislative Competence’ (15 January 2013), where Michael Moore states: “The agreement is a statement of political intent by Scotland’s two Governments”. Available at: https://publications.parliament.uk/pa/cm201213/cmhansrd/cm130115/debtext/130115- 0001.htm (last accessed: 31 March 2019). Christine Bell, ‘The Legal Status of the 'Edinburgh Agreement' (05 November 2012) and Aileen McHarg, ‘The Legal Effects of the Edinburgh

When primary legislation is ambiguous, as the Scotland Act is on this issue, the, then, House of Lords held a court may refer to statements made in the

House of Commons (Hansard) to aid in interpreting the meaning of legislation and intention of parliament.45 Thus, turning to a statement made by the

Secretary of State for Scotland during the passage of the Scotland Bill through

Parliament:

“A referendum that purported to pave the way for something that

was ultra vires is itself ultra vires.”46

Thus, any referendum would need a clear legislative basis. An Order in

Council, authorised by section 30(2) of the Scotland Act 1998 (which allows for the transfer/modification of reserved powers, under Schedule 5, to a devolved legislature47) had devolved to the Scottish Parliament the right to

Agreement – Again’ (08 November 2012). Available at: https://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/arti cleTyp%20e/ArticleView/articleId/468/Aileen-McHarg-The-Legal-Effects-of-the-Edinburgh- Agreement--%20Again.aspx (last accessed: 04 December 2019). 45 Pepper (Inspector of Taxes) v Hart and related appeals [1993] 1 All ER 42, per Lord Keith of Kinkel at 49, per Lord Bridge of Hariwch at 49, per Lord Griffiths at 50, per Lord Ackner at 51, per Lord Oliver of Aylmerton at 51 – 52 and per Lord Browne-Wilkinson at 53 to 74. Any statement other than the statement of the Minister, private member or other promoter of the Bill is unlikely reveal the legislative intention and be of assistance to the court (per Lord Bridge of Hariwch at 49 and per Lord Browne-Wilkinson at 64). 46 House of Commons, Hansard - HC Deb vol 312 column 257, ‘Clause 28 - Legislative Competence’ (12 May 1998). 47 House of Commons, ‘The Referendum on Separation for Scotland: The proposed section 30 Order - Can a player also be the referee’ Scottish Affairs Committee - Sixth Report of Session 2012 - 2013 1, 7 - 8. Available at: https://www.publications.parliament.uk/pa/cm201213/cmselect/cmscotaf/863/863.pdf (last accessed: 14 March 2017), and; HM Government, ‘Devolution Guidance Note 14 - Orders made under Section 30(2) of the Scotland Act (Alterations to Legislative Competence)’ 1, at paras. 3 and 7 - 8. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/465294/Devoluti on_Guidance_Note_14_orders_made_under_section_30_2_of_the_scotland_act_alterations_t o_legislative_competence.pdf (last accessed: 14 March 2017).

34 legislate for a referendum.48 A further Order under section 30(2) would presumably be required from Westminster before another referendum on independence could be held (provided there is sufficient public support for a referendum in Scotland and it is approved by the Scottish Parliament). Indeed, according to the Scottish First Minister:

“We do not need a transfer of power such as a section 30 order to

pass such a framework bill, though we would need it to put beyond

doubt or challenge our ability to apply the bill to an independence

referendum ….”49

Westminster has withheld its authorisation for a second Scottish independence referendum.50 However, it would be unlikely the UK Supreme Court would strike down a decision by the Scottish Parliament to hold a referendum on

Scottish independence.51 In Martin v Most, it was held it is not for the court to say whether legislation on a particular issue should be passed by the Scottish

Parliament or the UK Parliament.52 An Act of the Scottish Parliament that seeks to organise an independence referendum could be deemed to be ultra vires. This will come down to a matter of interpretation and perspective. The

48 See Article 3 of The Scotland Act 1998 (Modification of Schedule 5) Order 2013 (SI 2013/242). Available at: http://www.legislation.gov.uk/uksi/2013/242/article/3/made (last accessed: 14 March 2017). 49 The Scottish Parliament Meeting of the Parliament – Session 5, 6 (24 April 2019). Available at: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12053&mode=pdf (last accessed: 25 August 2019). 50 See the incumbent Prime Minister’s reply to the Scottish First Minister, dated 14 January 2020: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/857586/Nicola_Sturgeon_20200114.pdf (last accessed: 26 January 2020). 51 Scottish Affairs Committee ‘The Referendum on Separation for Scotland: Oral and written evidence’ Session 2010-12, 8 May 2012, HC 1608, at 208. 52 [2010] UKSC 40, at para. 5

35 outcome of any potential litigation in the courts questioning the constitutional validity of any such referendum is difficult to predict.53

Thus, secession in the context of the EU is now a significant and real concern, that is no longer just ‘academic’ and something hypothetical or unlikely to materialise.54 Historically, the context within which secession has primarily taken place no longer accords with the present-day reality. It is no longer sought, simply, as a remedial course of action or as a part of the process of decolonisation.55 Regional independence within the EU is now a conscious decision, as opposed to a purely reactive one. This is because it is considered to represent a viable alternative option to the traditional state paradigm.56

Regional independence within the EU represents: “a third way between national separatism and regional devolution”.57 Indeed, as noted recently by the Scottish First Minister:

“The case for independence is even stronger now, given the

profound changes that have taken place in the UK since 2014. In

that time, we have seen the limits of Scotland’s influence within the

53 Nicholas Aroney, ‘Reserved matters, legislative purpose and the referendum on Scottish independence (2014) 3 Public Law 421, 446. 54 Henri de Waele, ‘Disintegration from Within: Independence and Separatist Movements, the EU Response and the Role of Solidarity’, at 121, in Andreas Grimmel and Susanne My Giang (eds.) Solidarity in the European Union (Springer 2017). 55 Photini Pazartzis, ‘Secession and international law: the European dimension’ in Marcelo Cohen, Secession: International Law Perspectives (Cambridge University Press 2006), 357. 56 Rivka Weill, ‘Holey Union: The Constitutional Paradox of Secession’ (2014) Radzyner School of Law - Interdisciplinary Center 1, 10; Donald Wittman, ‘The Wealth and Size of Nations’ (2000) 44 Journal of Conflict Resolution 868, 883. 57 Michael Keating, ‘European Integration and the Nationalities Question’ (2004) Politics and Society 1, 2.

UK and, in sharp contrast, the power that independent nations have

as members of the EU…”58

The prospect of EU membership is not the only catalyst for regional independence59, but the EU, albeit indirectly or unwittingly, is said to have encouraged aspirations/claims to regional independence.60 The two phenomenon are intrinsically linked61, although authors do not suggest economic integration is a direct cause of political separatism, rather a permissive condition for it.62 European integration, thus, plays a key role in the process of state creation/transformation:

58 The Scottish Parliament Meeting of the Parliament – Session 5, 5 (24 April 2019). Available at: http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12053&mode=pdf (last accessed: 25 August 2019). 59 Dawn Brancati, ‘The Other Great Illusion: The Advancement of Separatism through Economic Integration’ (2014) 2(1) Political Science and Research Methods 69, 71; Gergana Noutcheva, Nathalie Tocci, Bruno Coppieters, Tamara Kovziridze, Michael Emerson and Michel Huysseune, Europeanization and Secessionist Conflicts: Concepts and Theories (2004) Journal on ethnopolitics and minority issues in Europe 1, 8 – 10. 60 Peter Lynch, Minority Nationalism and European Integration (University of Wales Press 1996), 16 and 197; Christopher Connolly, ‘Independence in Europe: Secession, Sovereignty, and the European Union’ (2013) 24 Duke Journal of Comparative & International Law 51, 84; Rivka Weill, ‘Holey Union: The Constitutional Paradox of Secession’ (2014) Radzyner School of Law - Interdisciplinary Center 1, 10; Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 242 - 244; Diego Muro and Martijn Vlaskamp, How do prospects of EU membership influence support for secession? A survey experiment in Catalonia and Scotland’ (2016) West European Politics 1; Cristina Fasone, ‘Secession and the Ambiguous Place of Regions Under EU law’, 50, 54 and 59 - 60 and Jean-Claude Piris, ‘Political and Legal Aspects of Recent Regional Secessionist Trends in some EU Member States (I), at 76 - 78, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017), and; Henri de Waele, ‘Disintegration from Within: Independence and Separatist Movements, the EU Response and the Role of Solidarity’, at 121 and 122, in Andreas Grimmel and Susanne My Giang (eds.) Solidarity in the European Union (Springer 2017), and; Daniel Cetra and Robert Lineira, 'Breaking‐up within Europe: Sub‐state Nationalist Strategies in Multilevel Polities' (2018) 56(3) Journal of Common Market Studies 717, 727; Adoración Galera Victoria, ‘The Catalan Independence Movement in the Political and Constitutional Debate in the European Union’ in Alberto Lopez-Basaguren and Leire Escajedo San-Epifanio, Claims for Secession and Federalism (Springer 2019), 579; Michael Keating, ‘European Integration and the Nationalities Question’ (2004) Politics and Society 1, 1 - 2. 61 Alberto Alesina and Enrico Spolaore, ‘On the Number and Size of Nations’ (1997) 112(4) Quarterly Journal of Economics 1027, 1028, 1040 and 1042, and; Alberto Alesina and Enrico Spolaore, The Size of Nations (Massachusetts Institute of Technology 2003), 84 and 219. 62 Dawn Brancati, ‘The Other Great Illusion: The Advancement of Separatism through Economic Integration’ (2014) 2(1) Political Science and Research Methods 69, 71.

“the European integration project was always meant to rein in

nationalist sentiments and the fostering of microcommunities … it

[the EU] does not succeed in overcoming nested divisions. Rather,

the EU actually appears to trigger and fan destructive ‘bottom-up’

tendencies in various quarters – being regarded as a paragon of

globalisation that does not preserve, but acutely threatens the

individual sphere.”63

The dominant view is that economic integration has had the effect of increasing the frequency and intensity of demands for self-determination.64 However, a handful of authors have sought to challenge the view that economic integration and separatism are linked.65 In practice, the global effects of economic integration on separatism are limited or unsupported66 and are not as clear cut as suggested. This is not least because, in the first place, the principal causes that give rise to separatism, are due to domestic factors.67 It is said the concomitant increases in both economic integration and separatism are statistically correlated, but economic integration may not actually be a

63 Henri de Waele, ‘Disintegration from Within: Independence and Separatist Movements, the EU Response and the Role of Solidarity’, 121, in Andreas Grimmel and Susanne My Giang (eds.) Solidarity in the European Union (Springer 2017). 64 Annalisa Zinn, ‘Economic integration and political separatism: parallel trends or causally linked processes’, 233 and 235, in David Cameron, Gustav Ranis and Annalisa Zinn (eds.) Globalization and Self-Determination – Is the Nation-State Under Siege? (Routledge 2006). 65 Dawn Brancati, ‘The Other Great Illusion: The Advancement of Separatism through Economic Integration’ (2014) 2(1) Political Science and Research Methods 69, 70. Niklas Bremberg, ‘The Dream of the Nation-State: Is Regional Secessionism a Threat to European Integration?’, at 250, in Antonina Bakardjieva Engelbrekt, Karin Leijon, Anna Michalski and Lars Oxelheim (eds.) The European Union and the Return of the Nation State (Palgrave Macmillan 2020): "regional secessionism and European integration are not contradictory but rather mutually reinforcing". 66 Ibid, 70 and 73. 67 Dawn Brancati, ‘Economic integration through the EU is unlikely to increase support for independence movements in European states’ Blog - LSE European Politics and Policy (31 July 2014). Available at: http://blogs.lse.ac.uk/europpblog/2014/07/31/economic-integration- through-the-eu-is-unlikely-to-increase-support-for-independence-movements-in-european- states/ (last accessed: 05 July 2018).

38 contributing factor to political separatism and the two are not causally linked; instead, it is said they merely represent parallel trends.68 Indeed, one author argues integration is actually having the opposite effect on the number of active self-determination movements.69

It is argued for regions with an active secessionist agenda, the ‘transaction costs’ involved in becoming an independent sovereign state are said to be smaller within, rather than outside of, the EU.70 The EU is said to provide incentives, opportunities and protection for regions and minority nationalist movements at an EU-level.71 European integration is said to facilitate cooperation amongst separatist movements within the EU, by providing them with enhanced political status and prestige in the EU’s political institutions.72 It provides smaller states with access to a larger market/trading bloc.73 Member

States can trade freely within the Single Market, removing the economic need or incentives for states to remain a part of a larger free trade area.74 However,

68 Annalisa Zinn, ‘Economic integration and political separatism: parallel trends or causally linked processes’, at 234, in David Cameron, Gustav Ranis and Annalisa Zinn (eds.) Globalization and Self-Determination – Is the Nation-State Under Siege? (Routledge 2006). 69 Ibid, 234 and 244. 70 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 243; Daniel Cetra and Robert Lineira, 'Breaking‐up within Europe: Sub‐state Nationalist Strategies in Multilevel Polities' (2018) 56(3) Journal of Common Market Studies 717, 717 and 719; Alberto Alesina and Enrico Spolaore, The Size of Nations (Massachusetts Institute of Technology 2003), 83 – 84; Dawn Brancati, ‘The Other Great Illusion: The Advancement of Separatism through Economic Integration’ (2014) 2(1) Political Science and Research Methods 69, 70 and 219. 71 Michael Keating, ‘European Integration and the Nationalities Question’ (2004) Politics and Society 1, 2 - 3, 10 - 14 and 17; Cristina Fasone, ‘Secession and the Ambiguous Place of Regions Under EU Law’, 50 and 54, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017). 72 Dawn Brancati, ‘The Other Great Illusion: The Advancement of Separatism through Economic Integration’ (2014) 2(1) Political Science and Research Methods 69, 71. 73 Daniel Cetra and Robert Lineira, 'Breaking‐up within Europe: Sub‐state Nationalist Strategies in Multilevel Polities' (2018) 56(3) Journal of Common Market Studies 717, 719. 74 Dawn Brancati, ‘Economic integration through the EU is unlikely to increase support for independence movements in European states’ Blog - LSE European Politics and Policy (31 July 2014). Available at: http://blogs.lse.ac.uk/europpblog/2014/07/31/economic-integration- through-the-eu-is-unlikely-to-increase-support-for-independence-movements-in-european-

39 the size of a state is argued to be less relevant as economic integration increases.75 Access to the Single Market is also said to dilute the notion of territorial boundaries, which might be particularly acute in a secessionist conflict.76 The same can also be said of an increase in/guarantees of (actual or perceived) individual, group and state security, which may be brought about through EU membership.77 The EU also provides smaller states with an over- representation or disproportionate representation in the European Parliament, on the basis of ‘degressive proportionality’.78 For example, even though

Denmark has a comparable population size to Scotland and is around half of its geographical size, Denmark has thirteen MEP’s, whereas Scotland (which is not a Member State) only has six MEP’s in the European Parliament. It was highlighted by the Scottish Government, at the time, that an increase in its

MEP’s could strengthen its position.79 Moreover, despite its size or population, each Member State has one representative in the European Commission and on the Governing Council of the European Central Bank, for the 19 EU Member

States in the Euro-zone.80 It is also thought EU citizenship, and, therefore, the

states/ (last accessed: 05 July 2018), and; Dawn Brancati, ‘The Other Great Illusion: The Advancement of Separatism through Economic Integration’ Political Science and Research Methods (2014) 2(1) 69, 71. 75 Alberto Alesina and Enrico Spolaore, The Size of Nations (Massachusetts Institute of Technology 2003), 84. 76 Gergana Noutcheva, Nathalie Tocci, Bruno Coppieters, Tamara Kovziridze, Michael Emerson and Michel Huysseune, Europeanization and Secessionist Conflicts: Concepts and Theories (2004) Journal on ethnopolitics and minority issues in Europe 1, 10, and; Nathalie Tocci, ‘Conflict Resolution in the European Neighbourhood: The role of the EU as a Framework and as an Actor’ (Robert Schuman Centre for Advanced Studies, European University Institute) EUI Working Paper Series RSCAS No. 2004/29 1, 10. 77 Nathalie Tocci, ‘Conflict Resolution in the European Neighbourhood: The role of the EU as a Framework and as an Actor’ (Robert Schuman Centre for Advanced Studies, European University Institute) EUI Working Paper Series RSCAS No. 2004/29 1, 10 – 11. 78 See Article 14(2) TEU. 79 The Scottish Government, Your Scotland, Your Voice: A National Conversation (2009) 1, 111 (para. 8.14). Available at: http://www.gov.scot/Resource/Doc/293639/0090721.pdf (last accessed: 13 February 2018). 80 Article 283(1) TFEU

40 creation of multiple identities, could help reduce ethno-political conflict, by encouraging a greater acceptance of multiple identities, eliminating the need for a choice over a single or divided citizenship, and therefore could act as a catalyst for EU membership.81

1.5 An overview of the thesis structure

This thesis is organised into eight chapters, each of which support the primary research aim of this thesis. In order to suggest what the legal position should be (chapter seven), it was necessary, firstly, to examine and critically discuss the existing legal position (chapters two to five), as well as highlight the weaknesses and shortcomings of the existing legal position (chapter six), in order to inform and provide a basis for the discussion in chapter seven on an ideal method or model for addressing secession and EU membership.

Chapters two and three of this thesis examine and critically discuss the position of the EU on the legality and consequences of secession. Broadly conceived, this includes the EU Treaties, relevant principles, values and concepts in EU law and the position of the Union’s political institutions. Notwithstanding the fact that the EU is a sui generis legal order, chapters two and three also consider the applicability and legal force of public international law in the

81 Gergana Noutcheva, Nathalie Tocci, Bruno Coppieters, Tamara Kovziridze, Michael Emerson and Michel Huysseune, Europeanization and Secessionist Conflicts: Concepts and Theories (2004) Journal on ethnopolitics and minority issues in Europe 1, 9; Nathalie Tocci, ‘Conflict Resolution in the European Neighbourhood: The role of the EU as a Framework and as an Actor’ (Robert Schuman Centre for Advanced Studies, European University Institute) EUI Working Paper Series RSCAS No. 2004/29 1, 9.

41 context of secession. Chapter four examines the routes of re-entry into the EU following a case of secession. This chapter considers the normal accession procedure in Article 49 TEU and the alternative proposal which has been put forward, which would involve an amendment to the EU Treaties in accordance with Article 48 TEU. In order for a seceding entity to avoid a loss of, or interruption in, its membership of the EU, and in the absence of an explicit legal duty in the Treaties, chapter five addresses the question concerning whether a duty can be implied on the Union to negotiate/facilitate a seceding entity’s accession to the EU.

Having established the legal position, and in order to suggest what the legal position should be, chapter six considers the weaknesses and shortcomings of the existing legal position. Chapter six highlights the call for clarity amongst academics. This chapter highlights the areas of EU law which are unclear and where conflict exists or could arise. It discusses the need for a coherent, rational and systematic EU position on secession. The concepts of the conflict of norms and value pluralism, as well as the theory on essentially contested concepts provide a useful framework, and theoretical underpinning, in which to examine and explore this research aim. Chapter seven proposes an ideal method or model for the Union to address secession and EU membership.

Lastly, chapter eight seeks to highlight the potential benefit, utility and impact of this research.

Having set out the main arguments, aims and justifications of/for the research in this thesis, including its relevance, significance and original contribution to the existing academic literature, in the next chapter, chapter two, I examine and critically discuss the legality of secession within the EU and start to build up a picture of what the position of the EU on secession looks like. I then move on to consider the position of the EU on the consequences of secession from an EU Member State in chapter three focussing, in particular, on secession and (the loss of) EU membership.

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CHAPTER TWO

THE POSITION OF THE EU ON THE LEGALITY OF SECESSION

2.0 Chapter overview

In this chapter, I examine and critically discuss the position of the EU on the legality of secession. In the absence of any explicit provision(s) in the Treaties,

I consider whether EU law impliedly permits or prohibits a right to secession.

Thus, I analyse whether secession would be compatible with: (i) the objectives of the Treaties; (ii) the nature of the EU; (iii) respect for territorial integrity and national constitutional identities in Article 4(2) TEU; (iv) the rule of law in Article

2 TEU, and; (v) the principle of external self-determination in EU law. In the absence of an express position in the Treaties, I consider what public international law has to offer.

2.1 Explicit provision(s) in the EU Treaties

In light of the ruling in Van Gend en Loos, one must first look to the ‘new legal order of international law’, established by the Treaties82, in order to determine questions of European law. The Treaties neither expressly provide for a right to nor prohibit secession. Silence in the Treaties leaves them open to interpretation and, therefore, different or contrasting interpretations. Indeed, there is nothing in the Treaties expressly forbidding secession. One might

82 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1, 12.

45 therefore say (according to the maxim): ‘what is not expressly forbidden is implicitly allowed’. One could also say, however, that the Treaties do not explicitly prohibit secession because Member States, as the ‘Masters of the

Treaties’, intentionally chose not to do so on the presumption that a prohibition against secession could already be implied from the Treaties.83

2.2 Does EU law impliedly permit or prohibit secession?

2.2.1 The objectives of the EU Treaties and nature of the

Amongst others, the key objectives of the European Union are integration, solidarity and unity.84 Article 2 of the original Treaty establishing the European

Economic Community promoted the ‘spirit’ of an ‘ever closer union’, referring to: “…closer relations between the States belonging to it”. The Preambles to the founding and successive amending EU Treaties all refer to ‘an ever closer union among the peoples of Europe’.85 Article 1 TEU refers to an ‘ever closer union’ and according to Article 1(1) of the Solemn Declaration on the European

Union, the governments of all Member States agreed: “…to progress towards an ever closer union among the peoples and Member States of the European

83 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 246. 84 See Article 3(3) TEU, and; Karl-Peter Sommermann, ‘Article 3 [The Objectives of the European Union]’, at 175 – 176, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 85 Article 1 TEU. House of Commons Library, ‘’Ever Closer Union’ in the EU Treaties and Court of Justice case law’ Briefing Paper No. 07230 (16 November 2015) 1, 4 - 5. Available at: http://researchbriefings.files.parliament.uk/documents/CBP-7230/CBP-7230.pdf (last accessed: 12 July 2016).

Community”.86 An ‘ever closer union’ is not directly mentioned in the Single

European Act 1987, however the Preamble affirms that Member States are:

“Moved by the will to…continue the work of the Treaties…to transform relations as a whole among their States into a European Union…”. The term

‘ever closer union’ could imply several different meanings. A union could be formed for either political or economic objectives.87 The term is absent in

Costa v ENEL88, which was a landmark ruling that established the primacy of

European law and emphasised the sui generis nature of the EU.89 The ECJ has rarely cited or employed the term ‘ever closer union’90 but, when it has, it has referred to it in its unabridged form: “…creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.” The ECJ has referred to this term in a limited context, such as cases concerning public access to official documents (freedom of information requests) and the free movement of persons.91

86 European Commission, Press Release Database – ‘European Commission swears oath to respect the EU Treaties’ (3 May 2010). Available at: http://europa.eu/rapid/press-release_IP- 10-487_en.htm (last accessed: 12 July 2016). 87 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 163 - 164 (Kindle Edition). 88 Case 14/1964 Costa v Ente Nazionale per l'Energia Elettrica (Enel) [1964] ECR 66. 89 Ibid, 593 - 594. 90 House of Commons Library, ‘‘Ever Closer Union’ in the EU Treaties and Court of Justice case law’ Briefing Paper No. 07230 (16 November 2015) 1, 8 - 12. Available at: http://researchbriefings.files.parliament.uk/documents/CBP-7230/CBP-7230.pdf (last accessed: 12 July 2016). 91 See, for example: Joined Cases T-424/14 and T-425/14 ClientEarth v European Commission [2015] ECR 848, at para. 55 and Case C-364/10 Hungary v Slovak Republic [2012] ECR 124, Opinion of Advocate General Bot, at para 58. Full a full list, see ‘Appendix’ in: House of Commons Library, ‘‘Ever Closer Union’ in the EU Treaties and Court of Justice case law’ Briefing Paper No. 07230 (16 November 2015) 1, 17 - 20. Available at: http://researchbriefings.files.parliament.uk/documents/CBP-7230/CBP-7230.pdf (last accessed: 12 July 2016).

Secession might appear to be at odds with an ‘ever closer union’. This is because the secession of a region would involve the disintegration of a multi- national state. However, this term should not be extrapolated to and employed in general usage to describe the permanent and irreversible nature of the

Treaties and process of European integration. It is of note, also, that the phrase ‘ever closer union’ in Article 1 TEU, refers to the ‘union among peoples’ and not ‘States’.92 Some have, therefore, concluded that this phase relates to the principle of subsidiarity and not European integration.93 However, it has been pointed out that the ‘spirit’ of an ‘ever closer union’ is referred to in the jurisprudence of the ECJ, which indicates that an ‘ever closer union’ remains a part of, and has served to promote, the ECJ’s integrationist agenda.94

Moreover, it is argued the legitimacy of the EU must be based on the concept of a dual representative democracy, as a union of states or governments and as a union of peoples. Demoicracy signifies the EU is, “a union with two normative subjects: states and citizens: Pursuing the common good of Europe, therefore, means protecting and promoting the values and interests of both states as self-governing collectives and citizens as autonomous individuals”.95

According to the Union’s political institutions, when a part of a Member State secedes from its metropolitan state, the seceding entity will automatically lose

92 House of Commons Library, ‘‘Ever Closer Union’ in the EU Treaties and Court of Justice case law’ Briefing Paper No. 07230 (16 November 2015) 1, 4 - 5. Available at: http://researchbriefings.files.parliament.uk/documents/CBP-7230/CBP-7230.pdf (last accessed: 12 July 2016). 93 Ibid, 6. 94 Ibid, 8 - 9. 95 Joseph Lacey, Centripetal Democracy: Democratic Legitimacy and Political Identity in Belgium, Switzerland, and the European Union (Oxford University Press 2017), 83.

48 its membership of the EU and become a ‘third country’.96 The integration and enlargement or deepening and widening of the EU imply a presumption in favour of a region’s continuity in EU membership.97 Thus, prima facie, secession appears to be incompatible with a European Union which is regarded as being permanent or perpetual in nature. However, membership is no longer permanent, in so far as a Member State can decide to withdraw from the EU according to the procedure outlined Article 50 TEU. A Member

State’s membership of the EU no longer represents a marriage for life as

Member States can now seek an “amicable divorce”.98 The concept of withdrawal comes within the class of “disintegrating provisions”, in contradistinction to integrating concepts/norms of European law such as accession, harmonisation, the four fundamental freedoms or EU citizenship.99

Article 50 TEU clearly shows that the EU is not an ‘indissoluble Union’. Indeed, as noted by the German Federal Constitutional Court: “A Member State can withdraw based on a decision made on its own responsibility, the process of

European integration is not irreversible.”100 Article 50 TEU was recently exercised by the UK following the 2016 referendum on the UK’s ‘in/out

96 C 84 E/422, Official Journal of the European Union (3/4/2004) ‘Answer given by Mr Prodi on behalf of the Commission’ (01 March 2004). Available at: http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2004:084E:0422:0423:EN:PDF (last accessed: 08 August 2016). 97 Kirstyn Inglis, Evolving Practice in EU Enlargement (Martinus Nijhoff 2010), at 25, and; Kirstyn Inglis, ‘Towards a Continuity and Transition for Scotland’s EU membership’ (2016) Working Paper for the Jean Monnet Supplement to the Análise Caeni Newsletter (University of Sáo Paulo) 1, 3. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2881471 (last accessed: 10 January 2017). 98 Phoebus Nicolaides ‘Withdrawal from the EU: a typology of effects’ (2013) 20(2) Maastricht Journal of European and Comparative Law 209, 209. 99 Clemens Rieder, ‘The withdrawal clause of the Lisbon Treaty in the light of EU citizenship: between disintegration and integration’ (2013) 37 Fordham International Law Journal 147, 147 100 Lisbon Case (BVerfG/Federal Constitutional Court) 2 BvE 2/08 (Judgment of the Second Senate of 30 June 2009), at para. 329. Available (in English) at: http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2009/06/es200906 30_2bve000208en.html (last accessed: 15 May 2017).

49 membership’ of the EU, which returned a vote in favour of withdrawal from the

EU.101 These ideas force one to reconsider the compatibility of secession with the scheme of the Treaties. However, it must also be borne in mind that a seceded entity may actually wish to retain its membership of the EU (in contrast to a withdrawing state). Indeed, in the context of secession, European integration is looked upon favourably.102

2.2.2 Respect for national constitutional identities in Article 4(2)

TEU

Owing to the silence in the Treaties and the wording in the first part of Article

4(2) TEU, prima facie, the Treaties do not actually preclude or rule out either consensual or unilateral secession. They appear to simply respect the national constitutional order of Member States. Whilst no constitution of a Member

State actually permits an absolute, unconditional or unilateral right to secession, some are ‘silent’ on secession which, arguably, leaves open either an implied right to, or denial of a right to, secession.103 Just under half

101 In R v Miller, the court held the European Communities Act 1972 can be expressly repealed (it cannot be impliedly repealed owing to its status as a ‘constitutional statute’ (R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, 20 - 21 and 23 (paras. 60 and 66). 102 Joxerramon Bengoetxea, ‘Autonomous Constitutional Regions in a Federal Europe’, at 233 - 234, in Elke Cloots, Geert de Baere and Stefan Sottiaux (eds.) Federalism in the European Union (Hart Publishing 2012); JHH Weiler ‘Secessionism and its Discontents’, at 12, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017), and; Cristina Fasone, ‘Secession and the Ambiguous Place of Regions Under EU law’, at 49 - 50 and 67, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017). 103 A total of 7 out of 27 Member States are silent on secession. See: the Constitution of Netherlands (1815, last revised in 2008); the Constitution of Belgium (1831, last revised in 2014); the Constitution of Latvia (1922, reinstated in 1991 and last revised in 2014); the

50 expressly forbid or prohibit any right to secession.104 Despite its widespread prohibition in a number of constitutions of EU Member States, being generally regarded as a taboo in the post-WWII and Cold War era105, secession should now not, automatically or necessarily, be viewed as an “absolute constitutional taboo”.106 A small number of constitutions in Member States permit secession.

Those that do, make a right to it conditional on the ratification procedures contained in their own national law(s), such as a referendum or a parliamentary vote/consent, as well as a negotiated agreement between the seceding territory and parent state.107

Constitution of Malta (1964, last revised in 2014); the Constitution of the Kingdom of Sweden (1974, last revised in 2012); the Constitution of Greece (1975, last revised in 2008), and the Constitution of Hungary (2011, last revised in 2013). 104 See Constitute, ‘The World’s Constitutions to Read, Search and Compare’. Available at: https://www.constituteproject.org/search?lang=en&key=seccesss (last accessed: 05 December 2016). A total of 13 out of 27 Member States expressly forbid or prohibit secession in their Constitution. See: Article 1 of the Constitution of Luxembourg (1868, last revised in 2009); Articles 5 and 139 of the Constitution of the Italian Republic (1947, last revised in 2012); Articles 1 and 89 of the Constitution of the French Republic (1958, last revised in 2008); Article 185(1) and (2) of the Constitution of the Republic of Cyprus (1960, last revised in 2013); Articles 1(1), 3(1) 4(2) and 152(1) of the Constitution of Romania (1991, last revised in 2003); Article 1 of the Constitution of the Republic of Croatia (1991, last revised in 2010); Article 4 of the Constitution of Finland (1991, last revised in 2011); Article 4 of the Constitution of Slovenia (1991, last revised in 2013); Article 10 of the Constitution of the Republic of Lithuania (1992, last revised in 2006); Article 2 of the Constitution of the Republic of Estonia (1992, last revised in 2011); Article 3 of the Constitution of the Slovak Republic (1992, last revised in 2014); Article 11 of the Constitution of the Czech Republic (1993, last revised in 2013), and; Article 3 of the Constitution of Poland (1997, last revised in 2009). 105 Jean-Claude Piris, ‘Political and Legal Aspects of Recent Regional Secessionist Trends in some EU Member States (I), at page 69, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017). 106 Nikos Skoutaris, ‘On Brexit and secession(s)’, at 197, in Carlos Closa, Costanza Margiotta and Giuseppe Martinico (eds.) Between Democracy and Law: The Amorality of Secession (Routledge 2019 Kindle edition). 107 This has been termed ‘negotiated independence’. See: James Crawford and Alan Boyle, ‘Annex A Opinion: Referendum on the Independence of Scotland - International Law Aspects’ (2013), 72 (at para. 22.2). Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79408/Annex_A. pdf (last accessed: 28 September 2017). A total of 7 out of 27 Member States provide for a conditional or qualified right to secession. See: Article 3(1) & (2) of the Austrian Constitution (1920, last revised in 2013); Article 3(1) of the Irish Constitution (1937, last revised in 2015); para. 3 of the Preamble to, and Article 79(3) of, the Constitution of the Federal Republic of Germany (1949, last revised in 2012); Article 19(1) of the Constitution of Demark (1953); Articles 6(1) and 288(a) of the Constitution of Portugal (1976, last revised in 2005); Articles 2 and 168 of the Spanish Constitution (1978, last revised in 2011); Articles 2(1) & (2) of the Constitution of the

The first part of Article 4(2) TEU reads as follows:

“The Union shall respect the equality of Member States before the

Treaties as well as their national identities, inherent in their

fundamental structures, political and constitutional, inclusive of

regional and local self-government...”

The Lisbon Treaty refers, for the first time, to Member States ‘constitutional identities’.108 With its inclusion in the Lisbon Treaty, there has been a shift in the interpretation of ‘national identity’, from a cultural, sociological, linguistic or historical perspective, to a legal one.109 The ECJ has confirmed the concept of national identity is inclusive of a Member State’s constitutional identity.110

This represents a significant inclusion111, which: “institutionally increases the

Republic of Bulgaria (1991, last revised in 2007), and; with reference to the UK’s ‘unwritten’ constitution (a former EU Member State) see: section 29(1) and 29 (2)(b) and, in particular, section 1(b) in Part 1 of Schedule 5 of the Scotland Act 1998; section 6(1) and 2(b) and, in particular, section 1(1), read together with section 2 of schedule 1, of the Northern Ireland Act 1998, and; section 94(2) and (4)(a) and section 108 and, in particular, section 1(b) in Part 1 of Schedule 7(A) of the Government of Wales Act 2006, as replaced by section 108A (1) and 2(c) and the new Schedule 7A of the Wales Act 2017. 108 The provision’s predecessor only referred to a state’s ‘national identity’. A national identity clause was first inserted into Section 1 of Article 5 of the Treaty Establishing the European Economic Community and then inserted into Article F(1) of Treaty of Maastricht: “the Union shall respect the national identities of its Member States, whose system of government are founded on the principles of democracy”. This was replaced by Article 6(3) of the Treaty of Amsterdam (which formally separated, in distinct paragraphs, the protection of national identities and democracy) and with what is now Article 4(2) of the Lisbon Treaty. 109 Pietro Faraguna, ‘Taking Constitutional Identities Away from the Courts’ (2016) 41(2) Brooklyn Journal of International Law 492, 495, and; Armin von Bogdandy and Stephen Schill, Overcoming Absolute Primacy: Respect for National Identity Under the Lisbon Treaty (2011) 48 Common Market Law Review 1417, 1422. 110 Case C-399/11 Stefano Melloni v Ministerio Fiscal [2013] ECR I-0000, Opinion of Advocate General Bot, at para. 137. 111 Leonard Besselink, ‘National and constitutional identity before and after Lisbon’ (2010) 6(3) Utrecht Law Review 36, 44.

52 importance of the identity clause and further develops its content”.112 Pre-

Lisbon, the ECJ had commented113 on the associated concept: ‘the recognition and respect of diversity among the constitutions of Member States’.114 The

ECJ has underlined the importance of the ‘national identity clause’ in Article

4(2) TEU.115 A state’s national identity is expressed in and legally determined by a constitution.116 Thus, it can be said that: “…the domestic constitution itself constitutes national identity.”117 This would also include a state’s constitutional practices and traditions in the case of an unwritten constitution. The terms

‘national identity’ and ‘constitutional identity’ may be used interchangeably or indiscriminately.118

The concept of national constitutional identity is an open-ended concept.119

Article 4(2) TEU provides no guidance on what it encompasses. However, the

ECJ has held a state’s constitutional identity is limited to the most fundamental aspects of a constitution.120 Specifically, the ECJ has referred to the concept

112 Armin von Bogdandy and Stephen Schill, Overcoming Absolute Primacy: Respect for National Identity Under the Lisbon Treaty (2011) 48 Common Market Law Review 1417, 1422. 113 See: Case C-36/02 Omega Spielhallen und Automatenaufstellungs-GmbH v OberbürgermeisterinderBundesstadtBonn (2004) ECR I-9641; Case C-88/03 Portugal v Commission (2006) ECR I-7145, and; Case C-145/04 Spain v United Kingdom (2006) ECR I- 7961. 114 Pietro Faraguna, ‘Taking Constitutional Identities Away from the Courts’ (2016) 41(2) Brooklyn Journal of International Law 492, 508 - 509. 115 Case C-473/93 Commission of the European Communities v Grand Duchy of Luxemburg [1996] ECR I-03207, 3258 (para. 35). 116 Leonard Besselink, ‘National and constitutional identity before and after Lisbon’ (2010) 6(3) Utrecht Law Review 36, 42 - 44 and 47. See, also: Armin von Bogdandy and Stephan Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 48 Common Market Law Review 1417, 1427 - 1429 and 1434 - 1435. 117 Ibid, 1427. 118 Case C-213/07 Michaniki AE v Ethniko Symvoulio Radiotileorasis and Ypourgos Epikrateias [2008] ECR I-0999, Opinion of Advocate General Maduro, at para. 31. 119 Pietro Faraguna, ‘Taking Constitutional Identities Away from the Courts’ (2016) 41(2) Brooklyn Journal of International Law 492, 516. 120 Case C-208/09 Lllonka Sayn-Wittgenstein v Landeshauptmann von Wien [2010], at para. 86. See: Leonard Besselink, ‘National and constitutional identity before and after Lisbon’ (2010)

53 as including: “…fundamental rights as formulated by the constitution of that

State or the principles of a national constitutional structure”.121 A Member

State’s constitutional identity can be found in the: “…functions and structures of nationhood.”122 For example, the ECJ has confirmed a policy seeking the protection and promotion of the national and official language of a Member

State would fall under a state’s constitutional identity.123 This would also include a Member State’s right to decide on its own form of government124, such as the status of a state as a Republic.125 As well as ensuring respect for how a national government chooses to exercise authority over its territory,

Article 4(2) TEU also provides for respect for local or regional government.126

To that end, the ECJ has held a Member State is free to decide on how it wishes to allocate or devolve power within its own territory.127 The European

Parliament has declared (on the role of regions/territories within a Member

6(3) Utrecht Law Review 36, 48, and; Mary Dobbs, ‘Sovereignty, Article 4(2) TEU and the Respect of National Identities: Swinging the Balance of Power in Favour of the Member States?’ (2014) 33(1) Yearbook of European Law 298, 328 and 331. 121 Case C-11/70 Internationale Handelsgesellschaft v Einfuhr-und Vorratstelle fur Getreide und Futtermittel [1970] ECR 1125, 1134 (para. 3). 122 Stephen Sieberson, Dividing Lines Between the European Union and its Member States: The Impact of the Treaty of Lisbon (Cambridge University Press 2008), 93. 123 Case C-391/09 Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others (2011) ECR I-3818, at para. 86; see also: Case C-379/87 Anita Groener and the Minister for Education and the City of Dublin Vocational Education Committee (1989) ECR I-3967. 124 Mary Dobbs, ‘Sovereignty, Article 4(2) TEU and the Respect of National Identities: Swinging the Balance of Power in Favour of the Member States?’ (2014) 33(1) Yearbook of European Law 298, 327. 125 Case C-208/09 Lllonka Sayn-Wittgenstein v Landeshauptmann von Wien [2010], at para. 92. 126 Hermann-Josef Blanke, ‘Article 4 [The Relations Between the EU and the Member States]’, at 223 – 224, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 127 Case C-324/07 Coditel Brabant SA v Commune d’ Uccle and Région de Bruxelles-Capitale [2008] I-08457, Opinion of Advocate General Trstenjak, at para. 85; Joined Cases C-428/06 to C-434/06 Unión General de Trabajadores de La Rioja (UGT-Rioja) and Others v Juntas Generales del Territorio Histórico de Vizcaya and Others [2008] ECR I-6747, Opinion of Advocate General Kokott, at para. 54, and; Case C-428/07 Horvath v Secretary of State for Environment, Food and Rural Affairs [2009] ECR I-6355, Opinion of Advocate General Trstenjak, at paras. 95 - 96.

State) that: “…internal territorial organization and the division of competence within each Member State to be matters to be decided upon by the Member

States alone…”.128

As one author has noted: “the elements of the constitutional identity of a particular country are so fundamental that they should be specially preserved and protected from change. And that is why they are often entrenched within the constitution itself”.129 For example, Article 288 of the Constitution of

Portugal sets out matters in which revision shall be restricted which includes national independence and the unity of the state.130 It was made clear, by the

Supreme Court of Canada, in Reference re Secession of Quebec, that secession raises: “…momentous questions that go to the heart of our system of constitutional government.”131 Owing to its constitutional significance, secession is a matter that would fall under the most fundamental aspects of a

Member State’s constitution. Thus, this is something that the Union must respect and implies a right from non-interference.

128 European Parliament, ‘Committee on Constitutional Affairs - Report on the division of competences between the European Union and the Member States’ (2002), at para. 34. Available at: http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A5- 2002-0133&language=EN (last accessed: 28 September 2017). 129 José Luis Martí, ‘Two Different Ideas of Constitutional Identity: Identity of the Constitution v. Identity of the People’, at 19, in Alejandro Saiz Arnaiz and Carina Alcoberro Llivina, National Constitutional Identity and European Integration (Intersentia, Cambridge 2013). 130 Constitution of Portugal (1976, last amended in 2005). Available at: https://www.constituteproject.org/constitution/Portugal_2005.pdf?lang=en (last accessed: 02 October 2018). 131 Reference re Secession of Quebec [1998] 2 SCR 217, at para. 1.

However, claims to the protection of national identity by Member States only apply when EU law and national constitutional law come into conflict.132 The

CJEU, itself, cannot unilaterally determine what may fall under the remit of a

Member State’s own constitutional identity. The CJEU only has the competence to interpret what is meant by the term ‘national constitutional identity’ as adopted in the Treaties and to rule on whether it shall respect a claim to respect national identity.133 In this regard, there have been a number of decisions by national (constitutional and supreme) courts regarding domestic constitutional reservations, the limits of supremacy and the process of European integration.134 Of course, their interpretative value is limited, as only the CJEU has the competence to interpret Union law. The BVerfG (the

German Federal Constitutional Court) played a crucial role in interpreting the concept of national constitutional identity.135 It was noted in the Lisbon case that the purpose of Article 4(2) TEU is to protect national sovereignty.

According to the court, German national constitutional identity consists of an inviolable core, in the form of an ‘eternity clause’136, that is not subject to

132 Armin von Bogdandy and Stephen Schill, Overcoming Absolute Primacy: Respect for National Identity Under the Lisbon Treaty (2011) 48 Common Market Law Review 1417, 1431. 133 Vivian Bom, ‘Article 4(2) TEU: The end of the supremacy of EU law?’, at 84 - 85, in EU Law Foundations, The Institutional Functioning of the EU (2011 - 2012) Maastricht Centre for European Law, and; Leonard Besselink, ‘National and constitutional identity before and after Lisbon’ (2010) 6(3) Utrecht Law Review 36, 46. See: Case C-36/02 Omega Spielhallen- und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn (2004) ECR I- 9641, 9654 (para. 39). 134 The first case reported is the Frontini judgment (Italian Constitutional Court). It is noted that the BVerfG (German Federal Constitutional Court) played a crucial role in interpreting the issues relating to concept of national constitutional identity. See, for a summary: Anita Blagojevic, ‘Procedures regarding national identity clause in the national constitutional Court’s and the CJEU’s case-law’, at 215 - 229, in Dunja Duić and Tunjica Petrašević, EU and Comparative Law and Issues and Challenges (Faculty of Law Josip Juraj Strossmayer University of Osijek 2017) 210, and; Pietro Faraguna, ‘Taking Constitutional Identities Away from the Courts’ (2016) 41(2) Brooklyn Journal of International Law 492, 501 - 508. 135 Pietro Faraguna, ‘Taking Constitutional Identities Away from the Courts’ (2016) 41(2) Brooklyn Journal of International Law 492, 502. 136 Article 79(3) of the German Basic Law, which by virtue of Article 23 of the German Basic Law, extended this ‘constitutional core’ to matters of EU law.

56 amendment. The protection of national constitutional identity was said to refer to: “the ability of a constitutional State to shape itself democratically”.137 This was held by the court to include democracy and the right of German citizens to vote, ensuring Member States: “…do not lose their ability to politically and socially shape living conditions on their own responsibility.138 The Polish

Constitutional Tribunal, similarly, held that respect for national constitutional identities includes: “…decisions specifying the fundamental principles of the

Constitution and decisions concerning the rights of the individual which determine the identity of the state...”.139

As one author has pointed out, respect for a Member State’s national constitutional identity, including local or regional government, actually refers to respect for a state’s existing national identity instead of a “…prototype for a separate demos”.140 Whilst the Union must respect a Member State’s arrangements regarding its own internal domestic division of competence, this would negate any reliance being placed upon Article 4(2) TEU as offering implied support for a right to secession. Moreover, even though the text of

Article 4(2), when translated into English, refers to ‘national identities’, in the languages of other Member States Article 4(2) adopts the term ‘national

137 Lisbon Case (BVerfG/Federal Constitutional Court) 2 BvE 2/08 (Judgment of the Second Senate of 30 June 2009), at paras. 153, 232 and 252. Available (in English) at: http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2009/06/es200906 30_2bve000208en.html (last accessed: 15 May 2017). 138 Ibid, at para. 226. 139 See the decision of the Polish Constitutional Tribunal (case K32/09) Judgment of 24 November 2010 192, at 202 - 203. 140 Steve Peers, ‘Blog - Homage to Catalonia? EU law and independence movements’ (29 September 2015). Available at: http://eulawanalysis.blogspot.co.uk/2015/09/homage-to- catalonia-eu-law-and.html (last accessed: 09 May 2017).

57 identity’, in its singular form.141 It is said this indicates the Union only has a duty to respect a Member’s national identity (inclusive of a state’s regional and local self-government), as opposed to the (multiple) national identities of minorities within a Member State.142 In any event, “The verb “respect” in the context of Art. 4.2 TEU can also mean “estimate”, or “recognise” as well as

“pay heed” and “pay attention to something”.143 The first part of Article 4(2)

TEU does not preclude secession, nor does it implicitly offer support for a right to secession. Indeed, as it has been asserted by the Advisory Council for the

National Transition144 (the Catalan government body which was tasked with advising the regional government on the legitimacy of Catalonia’s proposed secession and the routes to independence):

“With regard to Article 4.2 and the principles of national identity and

territorial integrity…this provision does not forbid any process of

internal secession in a member state, but merely establishes the

Union’s commitment to maintain a neutral status before territorial

141 Pietro Faraguna, ‘Taking Constitutional Identities Away from the Courts’ (2016) 41(2) Brooklyn Journal of International Law 492, 496 (and see footnote 8). 142 Richard Caplan and Zachary Vermeer, ‘The European Union and Unilateral Secession: The Case of Catalonia’ (2018) Uncorrected page proofs (cited with permission), 762. See, also: Hermann-Josef Blanke, ‘Article 4 [The Relations Between the EU and the Member States]’, at 228, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 143 Hermann-Josef Blanke, ‘Article 4 [The Relations Between the EU and the Member States]’, at 189, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 144 Translated from the Catalan: ‘Consell Assessor per a la Transició Nacional’.

disputes in its member states, as this sphere comes under the

competences exclusive of the member states.”145

2.2.3 Respect for territorial integrity in Article 4(2) TEU

The latter part of Article 4(2) TEU could be interpreted as opposing a right to unilateral secession. According to this provision the EU shall: “…respect essential State functions, ensuring the territorial integrity of the State, as well as maintaining law and order…”. The concept of territorial integrity here is of particular importance and it refers to the: “…oneness or wholeness of the

State”.146 A state’s territorial integrity could, thus, be undermined or threatened by secession.147 It has been argued that, where essential state functions, including provisions in a constitution, seek to preserve and actually protect a state’s territorial integrity unilateral secession is diametrically opposed to this provision.148 For example, such a provision can be found in Article 2 of the

Spanish Constitution, which refers to: “the indissoluble unity of the Spanish

145 Government of Catalonia, ‘Paths for Catalonia’s integration in the European Union’ Report No. 6 (2014) 1, 32. Available at: http://presidencia.gencat.cat/web/.content/ambits_actuacio/consells_assessors/catn/informes/i nf_6_angles.pdf (last accessed: 06 October 2016). 146 Hermann-Josef Blanke, ‘Article 4 [The Relations Between the EU and the Member States]’, at 229, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 147 Cristina Fasone, ‘Secession and the Ambiguous Place of Regions Under EU Law’, at 52, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017). 148 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 248 - 249.

59 nation”. The application of this provision would, of course, case to apply if a parent state agreed to such changes, however.149

2.2.4 The rule of law in Article 2 TEU

The ECJ has emphasised the EU is a ‘Community based on the rule of law’.150

The rule of law must be implemented and observed by Member States at a national level, which is vital for the functioning and further development of the

EU.151 The rule of law is ‘a prerequisite for the effective application of EU law’ and for upholding the rights and obligations deriving from the Treaties .152 The purpose of the rule of law is to ensure the effective functioning of and preservation of order within the EU. Respect for the rule of law is a condition sine qua non for membership of the EU under Article 49 TEU, as well as the

Copenhagen criteria. The protection and safeguarding of the rule of law has emerged as a recent imperative within the EU, owing to recent threats and

149 Stephen Tierney and Katie Boyle, ‘An Independent Scotland: The Road to Membership of the European Union’ ESRC Scottish Centre on Constitutional Change Briefing Paper 20 (2014), at 16. Available at: https://www.centreonconstitutionalchange.ac.uk/sites/default/files/papers/Tierney%20and%20 Boyle%20Scotland%20and%20EU%20paper%2020%20Aug%202014_0.pdf (last accessed: 28 December 2017), and; Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 249 150 The first judicial reference to the rule of law in the EU was made in Parti écologiste "Les Verts" v European Parliament [1986] ECR I-01339, at 1365 (para. 23). 151 European Commission, ‘Communication from The Commission to the European Parliament and The Council - A new EU Framework to strengthen the Rule of Law’ COM (2014) 158 final/2, 1, 2. Available at: http://ec.europa.eu/transparency/regdoc/rep/1/2014/EN/1-2014-158-EN-F1- 1.Pdf (last accessed: 03 December 2019); The European Commission for Democracy through Law, ‘Report on the Rule of Law’ (04 April 2011) Adopted by the Venice Commission at its 86th plenary session CDL-AD(2011)003rev 1, 10 - 11 and 15. Available at: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2011)003rev-e (last accessed: 25 September 2016) 152 European Commission, ‘Communication from The Commission to The European Parliament, The European Council, The Council, The European Economic And Social Committee And The Committee Of The Regions - Strengthening The Rule Of Law Within The Union A Blueprint For Action’, 16. Available At: Https://Eur-Lex.Europa.Eu/Legal- Content/En/Txt/Pdf/?Uri=Celex:52019dc0343&From=En (last accessed: 11 December 2019).

60 challenges to the rule of law. Promoting and upholding the rule of law is a responsibility shared by all EU institutions and Member States.153 Common principles of the rule of law include: ‘legality; legal certainty; the prohibition of arbitrariness and the abuse of authority by the executive/government; independent and impartial courts; effective judicial review including respect for fundamental rights, and; equality before the law’.154 There may be variations of the rule of law at a national level, depending on the constitutional requirements of Member States. The phrase ‘in accordance with its own constitutional requirements’ is a term that appears throughout the Treaties, not only for withdrawing but also for the accession of new Member States and ratification of Treaties and their amendments.155

Observance of the rule of law at a national level would require a seceding entity to, at the very least, hold a referendum as well as secure a consensus between their own government, parliament and electorate before negotiating secession from its metropolitan state.156 A seceding entity should negotiate its secession before becoming a Member State or at the same time as doing so. Compliance with the rule of law would ensure the process is democratic, legitimate and binding on a Member State, establishing a legal and political foundation that is

153 Ibid. 154 Ibid, 4. See, generally, Takis Tridimas, The general principles of EU law (2nd ed.) (Oxford University Press 2006). 155 See Articles 25, 42, 48(4), 48(6), 49, 54, 218, 223, 262, 311 and 357 TEU. 156 Allan Tatham, ‘Don't mention divorce at the wedding, darling!: EU accession and withdrawal after Lisbon’, at 149, in Andre. Biondi, Piet Eeckhout, and Stefanie Ripley (eds.) EU law after Lisbon (1st edn., Oxford University Press 2012), and; Elisenda Casanas Adam, ‘The Referendum: Lessons Learned for the Future’ (2016) Law School Research Paper Series: Europa Working Paper No. 2016/19 1, 2. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2830094 (last accessed: 01 November 2016).

61 likely to be recognised by other EU Member States. The process by which secession takes place could violate the rule of law if it was carried-out in a manner deemed to be unconstitutional. This would mean the secession of a region without the consent of its metropolitan state. Such a scenario could, conceivably, only be considered legitimate in the case of remedial secession.

However, remedial secession within the context of the EU is unlikely. This is owing to a number of requirements and protections. Under Articles 2 and 49

TEU, Member States must respect democracy, the rule of law and fundamental human rights.157 Furthermore, Member States’ compliance with the EU’s values is monitored under Article 7 TEU.158 Interestingly, it has been argued whether Catalonia had the right, under international law, to claim a right to remedial secession on the basis of alleged economic harm159 it has suffered due to Spain’s redistributive policy on taxes.160 Amongst other reasons, this is one of the reasons that led to the claim for independence:

157 Article 2 TEU and see, also, the Charter of Fundamental Human Rights and Freedoms (2000). 158 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 242 and 248; Cristina Fasone, ‘Secession & Ambiguous Place of Regions under EU law’, at 65, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017), and; Henri de Waele, ‘Disintegration from Within: Independence and Separatist Movements, the EU Response and the Role of Solidarity’, at 121, in Andreas Grimmel and Susanne My Giang (eds.) Solidarity in the European Union (Springer 2017). 159 Anne Verhelst, ‘Remedial secession for economic harm in international law: the Catalan case’ (May 2018) Working Paper No. 202 – Leuven Centre for Global Governance Studies 1. Available at: https://ghum.kuleuven.be/ggs/publications/working_papers/2018/202verhelst (last accessed: 30 October 2018). 160 The central Spanish government has the power, under Article 133(1) of the Spanish Constitution, to raise taxes. According to Article 157(1) of the Spanish Constitution, which establishes compensation funds, the Spanish state may carry out an intra-territorial fiscal transfer from the wealthier Catalan region to other autonomous communities in Spain; only two regions have their own independent fiscal systems and are responsible for raising/collecting their own taxes. This is in accordance with the principle of solidarity in Article 2 of the Spanish Constitution. See: Anne Verhelst, ‘Remedial secession for economic harm in international law: the Catalan case’ (May 2018) Working Paper No. 202 – Leuven Centre for Global Governance Studies 1, 7 - 9. Available at: https://ghum.kuleuven.be/ggs/publications/working_papers/2018/202verhelst (last accessed: 30 October 2018).

“The Spanish State has responded to this loyalty with the denial of

recognition of Catalonia as a nation; and has granted limited

autonomy, administrative policy, and also in the process of

recentralisation; economical treatment deeply unfair and a linguistic

and cultural discrimination…”161

However, it has been noted such economic harm did not/would not amount to

‘grave human rights abuses/violations’ sufficient to meet the threshold to claim recourse to remedial secession under international law, on the basis of a denial of a right to ‘internal’ self-determination.162

Following the dissolution of Yugoslavia and the international recognition of the break-up of the Soviet Union the, then, EEC issued guidelines on the recognition of new states in Eastern Europe, with the aim of creating a common position on recognition in Europe.163 The guidelines did not acknowledge a right to unilateral secession. Instead, they insisted on respect for democracy and the rule of law.164 Thus, for secession to be recognised as legitimate, a seceding entity would need to hold a referendum as a basic requirement and

161 The official text of the Declaration of the representatives of Catalonia (declaration of independence), dated 10 October 2017 (translated by the present author from Catalan into English). Available at: https://www.ara.cat/2017/10/10/Declaracio_Independencia_amb_logo_- 1.pdf (last accessed: 02 December 2018). 162 Anne Verhelst, ‘Remedial secession for economic harm in international law: the Catalan case’ (May 2018) Working Paper No. 202 – Leuven Centre for Global Governance Studies 1, 14. 163 Council of the European Communities, Declaration of the Twelve on guidelines referring to recognition of new states in Eastern Europe and the Soviet Union (Extraordinary Ministerial Meeting) (16 December 1991). 164 Hurst Hannum, ‘Re-thinking Self-Determination’ [1993] 34(1) Virginia Journal of International Law 1, 53 – 57; American Society of International Law, ‘European Community: declaration on Yugoslavia and on the guidelines on the recognition of new states’ (1992) 31(6) International Legal Materials 1485, 1487.

63 gain the consent of its metropolitan state.165 The EEC made it clear a referendum would be a requirement for independence in the cases of Bosnia and Herzegovina in 1992 and Montenegro in 2006.166 In its recommendation on Slovenia, the Commission made reference to the fact that "an absolute majority of those voting" were in favour of Slovenia's independence. This could be interpreted as endorsing the view that a simple majority vote in favour of secession would not be sufficient.167

2.2.5 The principle of external self-determination

There is no express reference to external self-determination in the Treaties, only a right to internal self-determination in Article 2 TEU.168 However, outside the context of the Treaties, the concept of external self-determination is promoted at an EU-level. For example. the European Free Alliance brings together regionalist pro-independence political parties in Europe.169

Furthermore, according to Principle Four of the Concluding Document of the

Vienna Meeting, following the Conference on Security and Co-operation in

165 Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal (Cambridge University Press 1996), 272; Jure Vidmar, Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice (Hart Publishing 1993), 83. 166 Conference on Yugoslavia Arbitration Commission, ‘Opinions on questions arising from the dissolution of Yugoslavia - Opinion No. 4 ‘on the international recognition of the socialist republic of Bosna-Hercegovina by the European Community and its Member States’ (1992) 1501, 1501 - 1503. Available at: http://www.pf.uni- lj.si/media/skrk_mnenja.badinterjeve.arbitrazne.komisije.1_.10.pdf (last accessed: 08 November 2018). See also: Friis Karsten, ‘The Referendum in Montenegro: The EU’s ‘Postmodern Diplomacy’ (2007) 12 European Foreign Affairs Review 67, 83 - 84. 167 Ibid, 1512. 168 Internal self-determination refers to the guarantee and provision of basic democratic and human rights, including respect for the rule of law and principle of minority protection. According to Article 2 TEU) “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” 169 European Free Alliance. Available at: http://e-f-a.org/about-us/ (last accessed: 06 October 2017).

Europe (1989), which built upon the measures agreed on, and adopted in, the

Helsinki Final Act (1975):

“…by virtue of the principle of equal rights and self-determination of

peoples and in conformity with the relevant provisions of the Final

Act, all peoples always have the right, in full freedom, to determine,

when and as they wish, their internal and external political status,

without external interference, and to pursue as they wish their

political, economic, social and cultural development.”170

This was adopted by a number of European states, although the provisions of this international agreement are not legally binding and only represent joint political declarations of intent or policy between the participating states.171

Whilst a right to self-determination is promoted at an EU-level, it is also limited by being tied to the concepts of sovereignty and territorial integrity, as well as being limited to the context of human and minority rights protection.172 Such

170 See: Organisation for Security and Co-Operation in Europe, Concluding Document of the Vienna meeting 1986 of representatives of the participating states of the Conference on Security and Co-operation in Europe, held on the basis of the provisions of the Final Act relating to the follow-up to the conference (1989) 1, 5. Available at: https://www.csce.gov/sites/helsinkicommission.house.gov/files/1989%20vienna%201986%20c oncluding%20doc.pdf (last accessed: 11 September 2017) 171 Christine Gray, ‘Self-determination and the break-up of the Soviet Union’ (1992) Yearbook of European Law 465, 469. 172 See: Organisation for Security and Co-Operation in Europe, Principle III, IV and V of the Concluding Document of the Vienna meeting 1986 of representatives of the participating states of the Conference on Security and Co-operation in Europe, held on the basis of the provisions of the Final Act relating to the follow-up to the conference (1989) 1, 5. Available at: https://www.csce.gov/sites/helsinkicommission.house.gov/files/1989%20vienna%201986%2 0concluding%20doc.pdf (last accessed: 11 September 2017); Principle V of the Charter of Paris for a New Europe (1990) 1, 5. Available at: http://www.osce.org/mc/39516?download=true (last accessed: 11 September 2017); Conference on Yugoslavia Arbitration Commission, ‘Opinions on questions arising from the dissolution of Yugoslavia - Opinion No. 2’ (1992) 1488, 1498. Available at: http://www.pf.uni- lj.si/media/skrk_mnenja.badinterjeve.arbitrazne.komisije.1_.10.pdf (last accessed: 11 September 2017); Tom Franck. ‘Postmodern Tribalism and the Right to Secession’, at 11 in

65 references to self-determination, therefore, do not constitute an absolute or unconditional right to secession.173

2.3 The position of the EU’s institutions/bodies

As stated by the European Commission, it is not for the Commission: “…to express a position on questions of internal organisation related to the constitutional arrangements of a particular state.”174 Furthermore, it is reported that in a meeting between the Scottish First Minister and the former President of the European Parliament, the president confirmed, when he was asked about whether Scotland’s Membership of the EU would continue in the event of secession or whether Scotland would be afforded special status: “It is absolutely a domestic issue for the UK. Everything that concerns the internal debate has to happen within the framework of institutions within the UK”.175 In response to the independence referendum held in Catalonia, on 01 October

2017, the European Commission reiterated, again, that: “…this is an internal matter for Spain that has to be dealt with in line with the constitutional order of

Catherine Brölmann, René Lefeber and Marjoleine Zieck (eds.) Peoples and Minorities in International Law (Martinus Nijhoff Publishers 1993), and; Photini Pazartzis, ‘Secession and International Law: the European dimension’ 355, at 368 in Marcelo Kohen, Secession: International Law Perspectives (Cambridge University Press 2006). 173 See, for example, Marc Weller, Current development: the international response to the dissolution of the socialist Federal Republic of Yugoslavia (1992) The American Society of International Law 569, 606. 174 European Parliament, ‘Parliamentary Questions - Answer given by Mr Barroso on behalf of the Commission’ (20 November 2013). Available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2013- 011023&language=EN (last accessed: 07 August 2016). 175 The Guardian, ‘Sturgeon calls for unity in Scotland and tells UK government: 'Get a grip'’ (28 June 2016). Available at: https://www.theguardian.com/uk-news/2016/jun/28/nicola-sturgeon- unity-scotland-uk-government-get-grip-brexit-eu-referendum (last accessed: 16 August 2018).

Spain.”176 A similar position was also taken, recently, in response to a separate question, but on a related topic.177 Several members of the European

Parliament, from different political groupings, had queried the inclusion of separatist movements on the EU transparency register which have the secession of a part of a Member State as their objective. It was argued that permitting this constituted an interference with the EU’s respect for the territorial integrity of its Member States under Article 4(2) TEU. Registering a particular organisation on the transparency register of itself: “…cannot be considered as an expression of the Commission's position on the objectives of the organisation concerned”.178 However, expressly forbidding or permitting secession would, in effect, be considered an interference with domestic internal affairs. Thus, it would seem that: “…the policy of the European institutions is not to have a policy, but to respect the constitutions of member states”.179

176 European Commission, ‘Press Release - Statement on the events in Catalonia’ (02 October 2017). Available at: http://europa.eu/rapid/press-release_STATEMENT-17-3626_en.htm (last accessed: 05 October 2017). 177 European Parliament, ‘Parliamentary Questions - Inclusion of the ‘Sovereignty and Justice Independence Organisation’ on the EU transparency register’ (11 January 2017). Available at: http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2017- 000108&format=XML&language=EN (last accessed: 24 February 2017). A similar question had also been put to the European Commission on an earlier date in relation to the, separatist organisation, ‘Catalan National Assembly’. See: European Parliament, ‘Parliamentary Questions - The EU Transparency Register and the ANC - Article 4(2) TEU breached by the ANC's objectives’ (18 November 2016). Available at: http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2016- 008663&language=EN (last accessed: 17 February 2017). 178 Parliamentary Questions, ‘Answer given by First Vice-President Timmermans on behalf of the Commission’ (10 February 2017). Available at: http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2016- 008663&language=EN (last accessed: 17 February 2017). 179 Graham Avery, ‘Independentism and the European Union’ (7 May 2014) European Policy Centre – Policy Brief. Available at: http://aei.pitt.edu/56505/1/pub_4393_independentism_and_the_eu.pdf (last accessed: 25 October 2016).

However, both the European Commission and European Parliament have confirmed the independence referendum, held on 01 October 2017, was unlawful and in breach of the rule of law.180 It would appear, therefore, that the Union’s political institutions are prepared to deal with cases on an ad hoc or case-by-case basis, but are not prepared to comment on purely speculative or hypothetical one’s. What is more, neither the Treaties nor the EU’s political institutions/bodies have actually gone as far as to expressly forbid (or permit) secession.

The longstanding position of the EU’s political institutions has been that upon the secession of part of an existing Member State, a break-away region would cease to be a member of the EU and would have to apply to join via Article 49

TEU. However, the current position of the Union’s political institutions, therefore, appears to be vague and incoherent. They need to clarify whether such a stipulation includes or excludes cases of unilateral secession. A legal opinion from the European Parliament’s constitutional affairs committee, on how Scotland might re-join the EU in the run up to 2014 independence

180 European Parliament, ‘EP Plenary session: Constitution, rule of law and fundamental rights in Spain in the light of the events of Catalonia. Closing statement by Frans Timmermans, First Vice-President of the EC (15:56 – 16:00)’ (04 October 2017). Available at: http://audiovisual.europarl.europa.eu/Assetdetail.aspx?id=44848d82-9c5d-4bd2-ab96- a80200e838f3 (last accessed: 09 October 2017), and; European Parliament ‘European Parliament President statement on the situation in Catalonia’ (27 October 2017). Available at: http://www.europarl.europa.eu/the-president/en/newsroom/european-parliament-president- statement-on-the-situation-in catalonia?webaction=view.acceptCookies (last accessed: 31 October 2017).

68 referendum, could have provided some clarification in this area. However, its publication was blocked by the President of the European Parliament.181

The approach of the EU’s institutions/bodies has been to discourage and suppress sub-state nationalism.182 The EU is not neutral on issues of secession. Indeed, the term “withdrawal” was preferred when referring to the exit of a Member State from the European Union. This was owing to the negative connotations the term carries, the recursive nature of secession

(which, taken to its logical end, could result in the dissolution of a state and system of states or a proliferation of new states) and the risk of a ‘domino effect’ amongst separatist movements in EU Member States.183

For example, according to the Chairman of the European Parliament‘s

Committee on Foreign Affairs in 2012: “Regional disintegration is poison to

Europe” and the President of the European Parliament, in the same year, expressed concern about: “...divisive tendencies due to separatist movements in the Member States – especially at a time of crisis.”184 The sentiments of the

President of the European Parliament have been echoed by the President of

181 European Council, ‘Separatism in Europe (3) - New states and EU Membership’ (02 April 2014). Available at: https://www.consilium.europa.eu/en/documents-publications/library/library- blog/posts/separatism-in-europe-3-new-states-and-eu-membership/ (last accessed: 15 September 2019). 182 Roland Vaubel, ‘Secession in the European Union’ (2013) 33(3) Economic Affairs 288, 295. 183 Costanza Margiotta, ‘An update on secession as the ‘ultimate right’: For a liminal legality’, at 10 - 12, in Carlos Closa, Costanza Margiotta and Giuseppe Martinico (eds.) Between Democracy and Law: The Amorality of Secession (Routledge 2019 Kindle edition). 184 Roland Vaubel, ‘The Political Economy of Secession in, and Withdrawal from, the European Union’ (April 2014) 1, 4. Available at: https://www.vwl.uni- mannheim.de/media/Lehrstuehle/vwl/Vaubel/Downloads/The_Political_Economy_EU.pdf (last accessed: 27 June 2018).

69 the European Council (speaking, at the time, on a proposed Scottish independence referendum): “Separatism is a word of the past. Nobody has anything to gain from separatism in the world of today … How can separatism help? The word of the future is ‘union’.”185

Responding to the recent independence referendum held in Catalonia, on 01

October 2017, the European Commission stated that: “Beyond the purely legal aspects of this matter, the Commission believes that these are times for unity and stability, not divisiveness and fragmentation”.186 Furthermore, in response to the recent declaration of independence in Catalonia the, former, President of the European Commission stated: “the bloc does not need any more splits.

I wouldn't want the European Union to be made up of 95 states tomorrow”.187

Shortly after that (again, addressing the situation in Catalonia), the President re-stated similar views: “Nationalisms are a poison that prevent Europe from working together…I say 'no' to any form of separatism that weakens Europe and further widens the existing fissures.”188 Moreover, the EU has gone as far as to publicly support a candidate country (Serbia) by warning Montenegro not to declare independence from its parent state: “…separation is not a rapid train

185 Daily Mail, ‘Separatism is a word of the past: European Council president deals blow to Salmond's Scottish independence campaign in video’ (4 November 2012). Available at: http://www.dailymail.co.uk/news/article-2227654/Herman-Van-Rompuy-deals-blow-Salmonds- Scottish-independence-campaign.html (last accessed: 07 August 2016). 186 European Commission, ‘Press Release - Statement on the events in Catalonia’ (02 October 2017). Available at: http://europa.eu/rapid/press-release_STATEMENT-17-3626_en.htm (last accessed: 05 October 2017). 187 The Express, ‘United States of Europe: Juncker’s plot for Chancellor for ALL of EU’ (29 October 2017). Available at: http://www.express.co.uk/news/world/872671/Europe-European- Union-army-chancellor-Euro-Brexit-Britain (last accessed: 02 November 2017). 188 The Express, ‘Nationalism is POISON’: Juncker hits out at Catalonia independence push’ (10 November 2017). Available at: https://www.express.co.uk/news/world/878093/Catalonia- independence-Spain-Barcelona-Jean-Claude-Juncker-EU-Puigdemont (last accessed: 27 February 2018).

70 to the EU. In a way, separation would be a slower train to the EU”.189 These points would have a limited practical importance and are unlikely (if at all) to impact the official EU response to secession. Moreover, these statements are not a valid and/or appropriate response by the EU officials. The Union must respect the national constitutional identity of its Member States and, thus, the right of a state to allow a part of its territory to secede (subject to its national constitutional requirements).

2.4 The position of public international law

The existence of a legal right to external self-determination in international law is not at issue.190 However, it is a categoric statement, unsupported in the scholarly literature, to state that external self-determination in public international law permits ‘all peoples’ the right to freely determine their political status, including forming an independent sovereign state in order to achieve self-government or integrating with an existing state. The position in international law is more nuanced. The scope and extent of the application of a right to external self-determination is a matter of contention. The right of self-

189 In 2001, Javier Solana, the Secretary General of the Western European Union and High Representative for the Common Foreign and Security Policy made this statement to Milo Đukanović, the President of Montenegro (reported in the Montenegrin Daily). As noted in: Jelena Džankić, ‘The role of the EU in the statehood and democratization of Montenegro’, at 88, in Soeren Keil and Zeynep Arkan (eds.), The EU and Member State Building: European Foreign Policy in the Western Balkans (Routledge 2001). 190 See: common Article 1(1) of the International Covenant on Civil and Political Rights & International Covenant on Economic, Social and Cultural Rights (1966); Article 1(2) and 55 of the UN Charter on ‘respect for the principle of equal rights and self-determination for peoples’; para. 1(2) of the Vienna Declaration and Programme of Action, as adopted by the World Conference on Human Rights (1993); United National General Assembly, 2005 World Summit Outcome A/60/150, at para. 5, referring to ‘the right to self-determination of peoples which remain under colonial domination and foreign occupation’; and Article 1(4) of the Additional Protocol to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

71 determination for ‘all peoples’ is articulated in legal texts as a right and of general application.191 However, there is no accepted legal definition of

‘peoples’ in international law. Furthermore, with the exception of parts of the

Friendly Relations Declaration192, it is said the legal texts do not resolve uncertainties around the meaning and scope of the principle, outside the decolonisation process.193 The acceptance of the principle in international law has been “selective and limited”.194

Historically, the right to external self-determination in international law was confined to the context of decolonisation. The principle was originally conceived of to apply to a population or people of a fixed territory oppressed by colonial domination; the colonial powers were required to grant colonies independence.195 The application of the principle of external self- determination to ‘colonial countries and peoples’ is well-established in international law.196 Self-determination subsequently became a right of ‘[a]ll peoples’197 and a number of international legal instruments extended their

191 James Crawford, ‘The right of self-determination in International Law: Its Development and Future’, at 31 – 32, in Philip Alston (ed.), Peoples’ Rights (Oxford University Press 2001) 7. 192 United Nations General Assembly Resolution 2625 on the Declaration On Principles Of International Law Concerning Friendly Relations And Cooperation Among States In Accordance With The Charter Of The United Nations (1970). 193 James Crawford, ‘The right of self-determination in International Law: Its Development and Future’, at 31 – 32, in Philip Alston (ed.), Peoples’ Rights (Oxford University Press 2001) 7. 194 Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal (Cambridge University Press 1996), 317. 195 Malcolm Shaw, ‘Peoples, Territorialism and Boundaries’ (1997) 3 European Journal of International Law 478, 480. See, in this respect, Article 5 of the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960): “Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.” 196 James Crawford, ‘The right of self-determination in International Law: Its Development and Future’, at 37, in Philip Alston (ed.), Peoples’ Rights (Oxford University Press 2001) 7. 197 See, for example, common Article 1(1) of the International Covenant on Civil and Political Rights & International Covenant on Economic, Social and Cultural Rights (1976); Article 1(2)

72 scope ratione personae, giving the principle extra-colonial application198, at which point self-determination became recognised as a right as opposed to an aspirational ideal.199 Indeed, according to the UN Charter, self-determination was not a right but a principle.200 However, whilst it is clear the right of external self-determination is a collective right of ‘all peoples’, outside of the colonial context its scope of application is still uncertain201 and the ‘peoples’ to whom the right of self-determination attaches to or who can assert/invoke the right continues to evolve.202

Secession is one means by which external self-determination may be achieved

(other means include, unilateral decolonisation, state consolidation, dissolution and/or a merger/union with another independent state).

International law neither allows nor prohibits secession. International law is

‘silent’ or neutral with respect to secession, owing to the fact that the principle of territorial integrity203 only applies to and as between states, as opposed to seceding entities (non-state actors).204 Thus, the principle of territorial integrity does not apply in the case of secession and secession is, in effect, not

and 55 of the UN Charter, and; para. 1(2) of the Vienna Declaration and Programme of Action, as adopted by the World Conference on Human Rights (1993). 198 Tom Franck. ‘Postmodern Tribalism and the Right to Secession’, at 11 in Catherine Brölmann, René Lefeber and Marjoleine Zieck (eds.) Peoples and Minorities in International Law (Martinus Nijhoff Publishers 1993), and; Hurst Hannum, ‘Re-thinking Self-Determination’ (1993) 34(1) Virginia Journal of International Law 1, 18. 199 Christopher Borgen, ‘The Language of Law and the Practice of Politics: Great Powers and the Rhetoric of Self-Determination’ (2009) 10(1) Chicago Journal of International Law 1, 7, and; Philip Alston, ‘Peoples’ Rights: Their Rise and Fall’, at 262 - 263, in Philip Alston (ed.), Peoples’ Rights (Oxford University Press 2001) 7. 200 Philip Alston, ‘Peoples’ Rights: Their Rise and Fall’, at 261, in Philip Alston (ed.), Peoples’ Rights (Oxford University Press 2001) 7. 201 James Crawford, ‘The right of self-determination in International Law: Its Development and Future’, at 37, in Philip Alston (ed.), Peoples’ Rights (Oxford University Press 2001) 7. 202 Ibid, at 39. 203 Article 2(4) of the UN Charter (1945). 204 Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) 2010, at paras. 79 and 80.

73 governed by international law.205 As such, a state cannot oppose secession on the basis of territorial integrity and a seceding entity cannot violate or infringe the territorial integrity of a parent state. It is said the court in the ICJ’s advisory opinion on the Kosovo case tacitly accepted the neutrality of international law on secession206, as the court did not address the issue of the neutrality of secession.207 The court did state, however, that the declaration of independence by Kosovo: “did not violate general international law”.208 The legality of secession is left to be determined at a national level. International law only regulates the legal consequences of secession.209

Notwithstanding its application, in principle, to ‘[a]ll peoples’, the law of self- determination does not include an absolute or unconditional right to unilateral secession in a post-colonial context. This is supported in customary international law.210 In the post-colonial context, it has been noted terms such as ‘secessionism’, ‘partition of states’ and ‘modification of borders’ became taboo, and a preference, instead, was shown for terms such as ‘friendly

205 Oliver Corten, ‘Territorial Integrity Narrowly Interpreted: Reasserting the Classical Inter-State Paradigm of International Law’ (2011) 24 Leiden Journal of International Law 87, 92 - 93. 206 Ibid, 89. 207 See: Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) 2010, at para. 56. 208 Ibid, at para. 122. 209 See Articles 34 - 37 of the Vienna Convention on Succession of States in Respect of Treaties (1978). 210 See, for example: Western Sahara Advisory Opinion (1975) ICJ 12, at 110; Tom Franck. ‘Postmodern Tribalism and the Right to Secession’, at 16 in Catherine Brölmann, René Lefeber and Marjoleine Zieck (eds.) Peoples and Minorities in International Law (Martinus Nijhoff Publishers 1993); Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal (Cambridge University Press 1996), at 61; Christian Tomuschat, ‘Secession and self- determination’, at 75, in Marcelo Kohen, Secession: International Law Perspectives (Cambridge University Press 2006), and; James Crawford, The Creation of States in International Law (2nd ed., Oxford University Press 2007), at 390, 415, 416 – 417.

74 relations’, ‘non-aggression’ and the ‘intangibility of borders’211, representing a paradigm shift in international relations.

There is no right, per se, to secede in international law albeit there is, arguably, an implied or qualified right to secession in exceptional circumstances.212 This could apply under the doctrine of remedial secession. According to the

Supreme Court of Canada in Reference re Secession of Quebec: "a right to external self-determination ... [including at times the assertion of a right to unilateral secession] arises in only the most extreme cases and, even then, under carefully defined circumstances.”213 The court, thus, implied that self- determination should be exercised internally but the threshold for remedial secession is set much higher than the simple fact of a denial of the right to internal self-determination. For example, even though France does not recognise the right of the minorities living within its borders (e.g. the French

Basques) to internal self-determination, it is unlikely an argument for remedial secession could be raised, successfully. Remedial secession might also be available in cases of gross and persistent violations of human rights. The

Supreme Court of Canada confirmed the circumstances giving rise to a claim

211 Jean-Claude Piris, ‘Political and Legal Aspects of Recent Regional Secessionist Trends in some EU Member States (I), at 69 in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017). 212 See Principle 55, para. 7, of Declaration No. 2625 on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations (1970). For commentary on this point, see: Subrata Chowdhury, ‘The status and norms of self-determination in contemporary international law’ (1977) 24(1 - 2) Netherlands International Law Review 72, 72 and 80; Frederic Kirgis, ‘The Degrees of Self- Determination in the United Nations Era’ (1994) 88(2) The American Journal of International Law 304, 308 - 310; Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal (Cambridge University Press 1996), 118; Christian Tomuschat, ‘Secession and self- determination’, at 35, and Oliver Corten, ‘Are there gaps in the international law of secession?’, at 91 - 94 in Marcelo Kohen, Secession: International Law Perspectives (Cambridge University Press 2006), and; Allen Buchanan, Justice, Legitimacy and Self Determination: Moral foundations for International Law (Oxford University Press 2007), 333. 213 Reference re Secession of Quebec [1998] 2 SCR 217, at para. 126.

75 to remedial secession could include: “decolonisation, alien subjugation, domination or exploitation”, including a denial of fundamental human rights and

“when a people is blocked from the meaningful exercise of its right to self- determination internally”, but this would only be “as a last resort”.214 It has been argued support for an implied right to secession can be found in an a contrario215 reading of the ‘savings clause’ in United Nations General

Assembly Resolution 2265:

“Nothing in the foregoing paragraphs shall be construed as

authorizing or encouraging any action which would dismember or

impair, totally or in part, the territorial integrity or political unity of

sovereign and independent States conducting themselves in

accordance with the principle of equal rights and self-determination

of peoples…”.216

On the one hand, the UN Friendly Relations Declaration affirms the existence of a right to external self-determination but, on the other, it also makes clear a reticence towards unilateral self-determination, carried out without the consent of a parent state. UN General Assembly Resolutions are generally considered to be non-binding217, but this provision is reflective of customary international

214 Ibid, at paras. 132, 133 and 134, respectively (and see also paras. 138, 151 and 154). 215 Frederic Kirgis, ‘The Degrees of Self-Determination in the United Nations Era’ (1994) 4 American Journal of International Law 304, 306; Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal (Cambridge University Press 1996), 118, and Oliver Corten, ‘Territorial Integrity Narrowly Interpreted: Reasserting the Classical Inter-State Paradigm of International Law’ (2011) 24 Leiden Journal of International Law 87, 91 - 92. 216 United Nations General Assembly Resolution 2625 on the Declaration On Principles Of International Law Concerning Friendly Relations And Cooperation Among States In Accordance With The Charter Of The United Nations (1970). 217 See Articles 10 and 14 of the UN Charter (1945).

76 law218, and implies a right to secession may be available if a right to internal self-determination cannot be exercised. Thus, secession may only be available as-of-right in a case of remedial secession.

2.5 Interim summary and concluding remarks

In chapter two, I examined and critically discussed the position of the EU on the legality of secession. Whilst the Union’s key political institutions/bodies openly seek to suppress secessionism, the Treaties are silent on the matter.

They do not expressly permit or forbid secession. The obligation on the EU to respect national constitutional identities precludes it from taking a position on the legality of secession. Another reason could be so as not to encourage or spur on secessionism, as this might legitimise secession, which could lead to a proliferation of new states affecting the absorption capacity of the EU.

Whilst unilateral secession will breach EU values, this does not rule out consensual secession. It must also be remembered a seceding entity may wish to retain its EU membership and active secessionist movements have expressed a desire to do so. What is more, the decision of a region to break- up a Member State may, ultimately, serve to deepen or strengthen the EU’s integration or homogeneity if that region was a part of a Member State that was (or turned out to be) predominantly anti-European, a reluctant EU partner,

218 Accordance with international law of the unilateral declaration of independence in respect of Kosovo (Request for Advisory Opinion) 2010, at para. 80

77 or even wished to or already had plans to leave the EU. For example, in the wake of the decision by the UK electorate to leave the EU, Scotland re-affirmed its desire to remain in the EU. Notably, Veneto, a region in Italy, has formally declared its desire to remain a part of the EU and this can be seen in Article 3 of the regional law of Veneto (law no. 16/2014) which, as well as providing for a consultative referendum on the independence of Veneto, states that the

President of the Regional Council must (following a positive vote): “…urgently establish institutional relations with the European Union and United Nations”.

Even if a region, itself, no longer wanted to remain a part of the EU, its departure and absence from the EU (along with any Euroscepticism or anti-

European sentiment) could have a positive effect on the rest of the EU. In a parallel context, it was thought that by creating a right of withdrawal, and thereby giving Member States the option to leave the EU, this may increase the harmony of the Union: “Now that the EU has expressed its trust in the member states, they might in turn prove more loyal in supporting decisions taken at European-level and in taking responsibility for them in their own backyard.”219 This, effectively, turns the argument, that secessionism is antithetical to the EU’s integrationist agenda, on its head and would actually be in line with the Union’s aims or goal of integration.

219 Eliza Malathouni, ‘Should I stay or should I go: the Sunset Clause as self-confidence or suicide’ (2008) 15 Maastricht Journal of European & Comparative Law 115, 123.

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CHAPTER THREE

THE POSITION OF THE EU ON THE LEGAL CONSEQUENCES OF

SECESSION

3.0 Chapter overview

Chapter two of this thesis addressed the position of the EU on the legality of secession. The absence of a statement in the Treaties on secession, and why there is a need to address this, is one of the key points of discussion in chapter six and chapter seven of this thesis. Whilst chapter two concluded it would be impermissible for the Union to address the legality of secession, it would be permissible for the Union to address the legal consequences of secession.

The discussion in this chapter helps inform the content of a suggested treaty provision addressing secession. Whilst the legality of secession is a national constitutional matter, the consequences or externalities of secession are a matter for the Union. Arguably, the Union has a moral and/or a legal duty to address those consequences. I discuss the basis for the existence of such a duty in chapter five, why it should be extended to the EU and what such a duty might look like. Based on that discussion, I put forward a treaty amendment addressing such a duty on the part of the in chapter seven of this thesis.

3.1 The EU Treaties

The Treaties are silent on the consequences of secession. As one author has put it: “Since the EU Treaties contain no provision on the legal implications of independence of parts of a Member State, and due to the absence of a legal precedent in this regard, every part has asserted the correctness of its position”.220 For example, the regional government in Catalonia declared that because the Treaties are silent as to what would happen if part of a Member

State became independent: “…it is simply untrue to declare that Catalonia would cease to be an EU member overnight”.221 However, the territorial scope of application of the Treaties extends to and applies to Member States ratione loci.222 Thus it can be deduced, for example, that as the ‘Kingdom of Spain’ is listed as a Member State, upon its secession, Catalonia (an autonomous community of Spain) would automatically lose its membership of the EU, because the Kingdom of Spain is a member of the EU and not Catalonia. A formal amendment to the Treaties would be required to alter the list of Member

States, based on the unanimous consent of all Member States.

220 Klaus-Jurgen Nagel and Stephan Rixen, Catalonia in Spain and Europe: Is there a way to independence? (1st edn., Nomos Verlagsgesellschaft 2015), 88. 221 Government of Catalonia, ‘President Artus Mas - Memorandum # 2 – Date and Question announced for Catalonia Self-Determination Vote’ (2 January 2014). Available at: http://www.president.cat/pres_gov/AppJava/president/notespremsa/240530/president-artur- mas explains-the-process-under-way-to-decide-future-of-catalonia.html (last accessed: 26 April 2016). 222 Article 52 TEU. See further: Jimena Quesada, ‘Article 52 [Territorial Scope of the Treaties]’, at 1434, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer, 2013).

3.2 ‘The Barroso view’

Representatives of the EU’s political institutions have issued a number of statements with respect to secession and the associated issue of EU membership.223 As early as 2004 (in what is now a widely cited passage), the

President of the European Commission stated:

“When a part of the territory of a Member State ceases to be a part

of that state, e.g. because that territory becomes an independent

state, the treaties will no longer apply to that territory. In other words,

a newly independent region would, by the fact of its independence,

223 BBC News, ‘Scottish Independence: EC President Jose Manuel Barroso on new states membership’ (12 September 2012). Available at: http://www.bbc.co.uk/news/uk-scotland- scotland-politics-19567650 (last accessed: 07 August 2016); BBC News, ‘Scottish independence: EC's Barroso says new states need 'apply to join EU’' (10 December 2012). Available at: http://www.bbc.co.uk/news/uk-scotland-scotland-politics-20664907 (last accessed: 09 September 2016); EU Observer, ‘EU Commission: Catalonia must leave EU if it leaves Spain’ (17 September 2013). Available at: https://euobserver.com/enlargement/1214666 (last accessed: 07 August 2016); European Parliament, ‘Parliamentary Questions - Joint answer given by Mr Barroso on behalf of the Commission’ (03 December 2013). Available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=P-2012- 009862&language=ENN (last accessed: 07 August 2016); European Council, ‘Press Release Remarks by President of the European Council Herman Van Rompuy, on Catalonia’ (12 December 2013). Available at: http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/140072.pdf (last accessed: 07 August 2016); European Commission, ‘Press Release – Letter from Viviane Reding, Vice-President of the European Commission Justice, Fundamental Rights and Citizenship to Ms Christina McKelvie, Convener European and External Relations Committee’ (20 March 2014). Available at: http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Inquiries/Letter_from _Viviane_Reding_Vice_President_of_the_European_Commission_dated_20_March_2014__p df.pdf (last accessed: 08 August 2016); Parliamentary Questions, ‘Consultation in Catalonia - Answer given by the (former) President Juncker on behalf of the Commission (09 February 2015). Available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2014- 009058&language=EN (last accessed: 17 February 2017); Parliamentary Questions, ‘Status of a successor state in the event of secession of a region - Answer given by President Juncker on behalf of the Commission’ (01 March 2016). Available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=P-2016- 001148&language=EN (last accessed: 17 February 2017); The Committee of Regions, ‘Opinion - Devolution in the European Union and the place for local and regional self-government in EU policy making and delivery’ 100th plenary session, CIVEX-V-034 (11 - 12 April 2013), at 10 (para. 64). Available at: http://aer- www.ameos.net/fileadmin/user_upload/MainIssues/Governance/2013- Publication_devolutionEU_EN.pdf (last accessed 18 May 2017).

become a third country with respect to the Union and the treaties

would, from the day of its independence, not apply anymore on its

territory.”224

In 2012, the successive President of the European Commission stated:

“A new state, if it wants to join the European Union, has to apply to

become a member like any state. In fact, I see no country leaving

and I see many countries wanting to join.”225

In relation to the Scottish referendum on independence from the United

Kingdom in 2014, the President of the European Council had confirmed (in the event of independence) that: “…Scotland will need to re-apply for EU membership”.226 In private correspondence (now in the public domain) between the, then, Secretary of State for the European Union, Íñigo Méndez de Vigo y Montojo and the Vice-President and Commissioner of Justice,

Viviane Reding, it is possible to deduce the position of the European

224 C 84 E/422, Official Journal of the European Union (3/4/2004) ‘Answer given by Mr Prodi on behalf of the Commission’ (01 March 2004). Available at: http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2004:084E:0422:0423:EN:PDF (last accessed: 08 August 2016). This position was re-stated, almost verbatim but with one further caveat, by the successive President of the European Commission, José Manuel Barroso in 2012. In that regard, see: ‘Scotland and the EU: Barroso’s Reply to Lord Tugendhat’ (10 December 2012) House of Lords Economic Affairs Committee. Available at: https://www.parliament.uk/documents/lords-committees/economic- affairs/ScottishIndependence/EA68_Scotland_and_the_EU_Barroso's_reply_to_Lord_Tugend hat_101212.pdf (last accessed: 19 September 2016). 225 The Guardian, ‘Barroso casts doubt on independent Scotland's EU membership rights’ (12 September 2012). Available at: http://www.theguardian.com/politics/2012/sep/12/barroso- doubt-scotland-eu-membership (last accessed: 07 August 2016). 226 The Scotsman, ‘Independent Scotland ‘would have to reapply’ to EU’ (13 December 2013). Available at: http://www.scotsman.com/news/politics/independent-scotland-would-have-to- reapply-to-eu-1-3232221 (last accessed: 07 August 2016).

Commission on the legality of unilateral secession.227 This position is based on respect for national constitutional identities in Article 4(2) TEU. The argument put forward by the Secretary of State for the European Union in his letter, dated 02 October 2012, reads as follows:

“Article 4.2 of the Treaty on European Union is strict when it points

out that the Union must respect the fundamental constitutional and

political structures and the territorial integrity of the Member States,

whose determination is the exclusive competence of these. As a

result, the EU cannot recognise a unilateral declaration of

independence from a part of a Member State”.

In her letter of reply, dated 04 October 2012, the Vice President of the

European Commission appears to agree with this line of reasoning:

“…there is no doubt about my position, which is equal to the position

expressed by President Barroso on behalf of the college, and that I

fully agree with the analysis of the European Constitutional

Framework that you develop in your letter”.

227 These documents were received by this author on 23/07/2018, and translated into English, following a documents access request issued to the European Commission. The documents are also in the public domain (although they are only available in their original language). For the letter from the Spanish Secretary of State, Íñigo Méndez de Vigo y Montojo, dated 02 October 2012, see: https://www.asktheeu.org/en/request/251/response/698/attach/html/3/MENDEZ%20DE%20V IGO%20Y%20MONTOJO%20pdf1%20pdf.pdf.html, and for the letter of reply, from the Vice- president of the European Commission, Viviane Reding, dated 04 October 2012, see: https://www.asktheeu.org/en/request/251/response/698/attach/html/2/MENDEZ%20DE%20V IGO%20reply%20pdf.pdf.html (last accessed: 24 July 2018).

Commenting, at the time, on the proposed unilateral secession by Catalonia from Spain, the Commissioner for Justice and Vice-President of the European

Commission on another occasion declared: “Catalonia, if it seceded from

Spain, could not remain in the European Union as a separate member”.228

Most recently, in response to the independence referendum held in Catalonia on 01 October 2017, the European Commission reiterated the legal position held by its predecessors: “If a referendum were to be organised in line with the

Spanish Constitution it would mean that the territory leaving would find itself outside of the European Union.”229

However, it is interesting to note that with respect to any potential re-unification between Northern Ireland and the Republic of Ireland, in response to the UK’s decision to withdraw from the EU, the European Council declared:

“…the Good Friday Agreement expressly provides for an agreed

mechanism whereby a united Ireland may be brought about through

peaceful and democratic means; and, in this regard, the European

Council acknowledges that, in accordance with international law,

the entire territory of such a united Ireland would thus be part of the

European Union.”230

228 The Scotsman, ‘Bill Jamieson: Clarity required on Europe’ (13 November 2013). Available at: http://www.scotsman.com/news/opinion/bill-jamieson-clarity-required-on-europe-1-3187533 (last accessed: 07 August 2016). 229 European Commission, ‘Press Release - Statement on the events in Catalonia’ (02 October 2017). Available at: http://europa.eu/rapid/press-release_STATEMENT-17-3626_en.htm (last accessed: 05 October 2017). 230 European Council, ‘Special meeting of the European Council (Art.50) held on 29 April 2017, Annex -Statements to the Minutes of the European Council’ 1, 4. Available at: http://data.consilium.europa.eu/doc/document/XT-20010-2017-INIT/en/pdf (last accessed: 21 August 2018).

The European Council has, therefore, implied a distinction between secession from one state followed by accession to the EU as an independent state and reunification with an existing EU Member State. The case of Northern Ireland can be compared to the expansion of Germany following the fall of the Berlin

Wall. The former EC’s institutions automatically integrated East Germany into the framework of the EEC, following its reunification with West Germany, without the need for accession proceedings, a revision/amendment of the EEC

Treaty or the consent of Member States.

Thus, a different political discourse/rhetoric is apparent with respect to the cases of Catalonia and Scotland, as compared to Northern Ireland. With regard to Catalonia and Scotland, the EU’s political institutions have confirmed they would need to re-apply for membership as third countries. In contrast, with respect to Northern Ireland, the EU’s political institutions appear to be more open, pragmatic and flexible. The European Council has committed to the possibility of Northern Ireland re-joining the EU, automatically, without any loss of or interruption to its EU membership. The rationale for this appears to be to avoid the imposition of a ‘hard border’ between the Republic of Ireland and Northern Ireland, following the UK’s decision to withdraw from the EU, and to preserve the Good Friday/Belfast Agreement. Pragmatic concerns over the border, rather than the fact Northern Ireland would be unifying with an existing

Member State underlies the different treatment of Northern Ireland compared to Scotland/Catalonia. This is important for other states as few will have the specific border concerns and political history of Northern Ireland, but they may well wish to unify with a neighbour. The former Prime Minister (Taoisech) of

86 the Republic of Ireland noted the statement from the European Council was

“…a significant legal statement from the European Council for something that may happen at some time in the future, but not in the immediate future.”231

However, despite being a significant legal statement, conclusions, resolutions and statements of the European Council are not legally binding. Instead, they express a political commitment of the European Council and representatives of the governments of the participating EU Member States. It is important to emphasise, also, this statement was made in the context of concerns specific to Northern Ireland. It is therefore limited as evidence of a general EU approach. Indeed, it was added into the minutes of the meeting of the

European Council (upon a proposal by the Greek Government232), that the guidelines, negotiations and their results do not actually constitute a precedent for any other EU legal act with a third country.233

The potential future reunification of the island of Ireland would be based on the

Good Friday/Belfast Agreement.234 In this agreement, it was accepted by the

Guarantor States that Northern Ireland could join the Republic of Ireland, should the people of the whole of the island of Ireland, on both sides of the

231 The Irish Times, ‘Enda Kenny welcomes EU’s united Ireland agreement’ (29 April 2017). Available at: https://www.irishtimes.com/news/world/europe/enda-kenny-welcomes-eu-s- united-ireland-agreement-1.3066687 (last accessed: 21 August 2018). 232 The National Herald, ‘PM Tsipras in Brussels for EU Council’s Meeting on Brexit’ (29 April 2017). Available at: https://www.thenationalherald.com/160035/pm-tsipras-brussels-eu- councils-meeting-brexit/ (last accessed: 21 August 2018). 233 European Council, ‘Special meeting of the European Council (Art.50) held on 29 April 2017, Annex -Statements to the Minutes of the European Council’ 1, 4. Available at: http://data.consilium.europa.eu/doc/document/XT-20010-2017-INIT/en/pdf (last accessed: 21 August 2018). 234 This agreement is made up of two inter-related documents: a Multi-Party Agreement and British-Irish Agreement. The Multi-Party Agreement is a political agreement by most of Northern Ireland’s political parties reached in the multi-party negotiations and is an annex to the British- Irish Agreement (in that sense is it legally binding). The British-Irish Agreement is an international agreement between the British and Irish Governments, which is registered with the Secretariat of the UN binding the signatory parties.

Irish border, democratically decide to hold simultaneous referendums on whether to form a united Ireland. Thus, the special or differentiated treatment that Northern Ireland might potentially receive in the future with regard to any potential ‘re-accession’ to the EU would be based on an international commitment which the UK has agreed to, and on the consensual nature that any reunification of the island of Ireland would have. Such a route to secession, enshrined in public international and national constitutional law, is not open to Catalonia or Scotland. In addition, their accession would require the amendment of the territorial scope of application the Treaties under Article

52 TEU, which would not be necessary in the case of Northern Ireland.

3.3 A critical examination of ‘the Barroso view’

The statements issued by representatives of/from the EU’s political institutions have been said to be overly-simplistic235 and the Commission has been accused of ‘saying as little as possible’.236 The EU’s political institutions have not set out what the consequences of unilateral secession would be. For example, it needs to be clarified whether or not a seceding entity, in the case of unilateral secession, would be prohibited from applying to join the EU sine die. Furthermore, the ‘Barroso view’ only says what would happen to a part of a territory that breaks-away. It does not say what might happen, if multiple parts of a Member State break away at the same time, such as Flanders and

235 Daniel Kenealy and Stuart MacLennan, ‘Sincere Cooperation, Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland’s Future in the European Union?’ (2014) 20(5) European Law Journal 591, 593. 236 Neil Walker ‘Internal Enlargement in the EU’, at 40, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017).

Wallonia or Scotland and England, if either the Kingdom of Belgium or the

United Kingdom ceased to exist.237 Overall, the statements issued by EU officials are said to have fallen short of a “fully articulated policy”.238 Thus, it has been highlighted:

“What is glaringly absent from the debate, both in the knowing buck-

passing of Barroso’s intervention and in the broader silence of the

EU’s main movers and players on the Scottish question, is the

articulation of any kind of public philosophy that would provide good

reasons, rather than simply motivations of base political self-

interest, why an independent Scotland should or should not be

welcomed with open arms.”239

The position advocated by the European Commission is also said to represent a state-centric view of the EU, alluding to the language of public international law and, in particular, the concept of state continuity and succession240 in

Article 34 of the Vienna Convention on Succession of States in Respect of

237 David Edward, ‘EU law and the separation of States’ (2013) 36(5) Fordham International Law Journal 1, 12 and 16. 238 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 241. 239 Neil Walker, ‘Hijacking the Debate’ UK Constitutional Law Blog (18 February 2014). Available at http://ukconstitutionallaw.org/2014/02/18/neil-walker-on-scotland-hijacking-the- debate/ (last accessed: 14 July 2016). 240 James Crawford and Alan Boyle, ‘Annex A Opinion: Referendum on the Independence of Scotland – International Law Aspects’ (2013), 98 (para. 142). Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79408/Annex_A. pdf (last accessed: 28 September 2017); Daniel Kenealy and Stuart MacLennan, ‘Sincere Cooperation, Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland’s Future in the European Union?’ (2014) 20(5) European Law Journal 591, 591 and 596, and; Elisenda Casanas Adam, ‘The Scottish Independence Referendum: Lessons Learned for the Future’ (2016) Law School Research Paper Series: Europa Working Paper No. 2016/19 1, 9. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2830094 (last accessed: 01 November 2016); Sionaidh Douglas-Scott, ‘Scotland, Secession and the European Union’ (2019) Queen Mary University Legal Studies Research Paper No. 301/2019 1, 3.

Treaties (1978). Thus, the question of whether a state is a member of the EU has been treated as a matter of public international law. However, in Van Gend en Loos, the ECJ stressed the EU is a sui generis organisation, that not only confers rights on states but also on individual citizens of Member States.241 It is also a ‘new legal order’ which has been confirmed in the case law of the ECJ on a number of occasions.242

The position taken by the Commission has also been criticised for being overly- interventionist243 and for a lack of impartiality.244 Infeed, the incumbent

President of the European Parliament declared: “Those who act against the

Spanish Constitution are also acting against the European order”.245 This has arguably served to act as a warning to seceding entities that if they decide to declare their independence from a parent state, they will automatically lose their EU membership. It is suggested this has made secession an unattractive option for those regions/territories wishing to remain in the EU.246 As a result, it is said the Commission is indirectly influencing or preventing legitimate secessionist claims.247 Thus, it has been criticised for “hijacking the

241 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1, 12. 242 David Edward, ‘EU law and the separation of States’ (2013) 36(5) Fordham International Law Journal 1, 12. 243 Dimitry Kochenov and Martijn van den Brink, ‘Secessions from EU Member States: The Imperative of Union’s Neutrality’ (2016) Law School Research Paper Series: Europa Working Paper No. 2016/04 1, 26. 244 Ibid, 3. 245 EU Observer, ‘Catalonia and Scotland at core of Europe's geopolitical conundrum’ (22 March 2017). Available at: https://euobserver.com/opinion/137334 (last accessed: 16 August 2018). 246 Dimitry Kochenov and Martijn van den Brink, ‘Secessions from EU Member States: The Imperative of Union’s Neutrality’ (2016) Law School Research Paper Series: Europa Working Paper No. 2016/04 1, 26. 247 Ibid, 3.

90 debate”.248 Indeed, the threat of having to apply to join the EU as a ‘third country’ is said to have influenced the vote with respect to the 2014 Scottish independence referendum.249 Also, in relation to the case of Scotland, representatives of the EU’s political institutions appear to have been more open in listening to the wishes of the Scottish independence movement and their desire to remain in the EU, in contrast to Catalonia.250 For example, according to the incumbent President of the European Commission, “Scotland won the right to be heard in Brussels. So I will listen carefully to what the first minister will tell me but we don’t have the intention, neither Donald nor myself, to interfere in the British process. That is not our job.”251 Similarly, the former

President of the European Parliament had stated that he would: ‘welcome and listen to the first minister’.252 It is suggested this might be due to the fact that

Scotland and Spain have approached the issue of secession differently. The

UK central government had approved Scotland’s independence referendum in

2014, whereas the Spanish government has continually opposed Catalonia’s demands for independence.253 ‘Brexit’ and the issues it raises could also be

248 Neil Walker, ‘Blog - Hijacking the Debate - The Future of the United Kingdom and Scotland (ESRC)’ (21 February 2014). Available at: http://www.futureukandscotland.ac.uk/blog/hijacking- debate (last accessed: 01 November 2016). 249 Elisenda Casanas Adam, ‘The Scottish Independence Referendum: Lessons Learned for the Future’ (2016) Law School Research Paper Series: Europa Working Paper No. 2016/19 1, 11. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2830094 (last accessed: 01 November 2016). 250 Iris Bekker, ‘Political Discourses on Secession in the EU’ MA thesis (Leiden University)1, 33. Available at: https://openaccess.leidenuniv.nl/bitstream/handle/1887/55387/Political%20Discourses%20on %20Secession%20in%20the%20EU%20-%20I.A.%20Bekker%202017.pdf?sequence=1 (last accessed: 16 August 2018). 251 The Guardian, ‘Nicola Sturgeon’s plea to EU leaders meets with sympathy but little hope’ (29 June 2016). Available at: https://www.theguardian.com/politics/2016/jun/29/nicola- sturgeon-scotland-plea-eu-leaders-sympathy-little-hope (last accessed: 16 August 2018). 252 The Guardian, ‘Sturgeon calls for unity in Scotland and tells UK government: 'Get a grip'’ (28 June 2016). Available at: https://www.theguardian.com/uk-news/2016/jun/28/nicola-sturgeon- unity-scotland-uk-government-get-grip-brexit-eu-referendum (last accessed: 16 August 2018). 253 Iris Bekker, ‘Political Discourses on Secession in the EU’ MA thesis (Leiden University)1, 33. Available at: https://openaccess.leidenuniv.nl/bitstream/handle/1887/55387/Political%20Discourses%20on

91 another important factor that might explain why the EU would seem to be more open to the appeals of the Scottish government to retain their EU membership, than that of Catalonia.

Some authors have noted an automatic loss of EU membership is tantamount to a ‘humiliation tactic254, an ‘anti-tribalism shield’255, a ‘weapon of mass dissuasion’256, blackmail257 and even punishment.258 As one author notes, this is: “…deployed in defense of an obscure and unspecified interest of ensuring that the map of Europe remains the same... ” and represents an “ultra vires action deprived of any ethical justification.”259 Not only has the European

Commission been criticised for a lack of perceived neutrality, it has also been criticised for being inconsistent in its approach. This can be seen with respect to the 1979 referendum on devolution in Scotland. The Secretary-General of the European Commission had (in contrast to the ‘Barroso view’) stated that both Scotland and the UK would remain members of the, then, EEC in the event the two separated.260

%20Secession%20in%20the%20EU%20-%20I.A.%20Bekker%202017.pdf?sequence=1 (last accessed: 16 August 2018). 254 Gareth Davies, ‘The humiliation of the state as a constitutional tactic’, at 147 – 174, in Fabian Amtenbrink and Peter AJ van den Berg (eds.) The Constitutional Integrity of the European Union (Asser Press 2010). 255 Dimitry Kochenov, ‘Scotland and the EU: Comment by Dimitry Kochenov (10 September 2014) Verfassungsblog – On Matters Constitutional. Available at: http://verfassungsblog.de/scotland-eu-comment-dimitry-kochenov-2/ (last accessed: 07 August 2016). 256 Dimitry Kochenov and Martijn van den Brink, ‘Secessions from EU Member States: The Imperative of Union’s Neutrality’ (2016) Law School Research Paper Series: Europa Working Paper No. 2016/04 1, 15. 257 Ibid, 15. 258 Ibid, 13. 259 Dimitry Kochenov, ‘Scotland and the EU: Scotland in the EU: The EU Is an Empowering, Not a Blackmailing Tool’ (10 September 2014) Verfassungsblog – On Matters Constitutional. Available at: http://verfassungsblog.de/scotland-eu-comment-dimitry-kochenov-2/ (last accessed: 07 August 2016). 260 See: The Scottish Parliament, ‘European and External Relations Committee - Report on the Scottish Government's proposals for an independent Scotland: membership of the European Union’ (23 May 2014) Scottish Parliament Paper 530 Session 4, 28 (para. 100).

In order for the EU to be able to promote democracy, the rule of law and sincere cooperation, it is argued the EU must adopt a ‘neutral’ or agnostic approach to secession and its consequences.261 This would require the EU to: respect secession that has been carried out in accordance with a state’s own constitutional requirements (in accordance with the rule of law); respect the democratic right or will of the people to remain a part of the EU and, to that end; facilitate a region’s secession and simultaneous accession to the EU by approaching a seceded entity in a manner that is consistent with its integrationist approach.262 Instead of, effectively, providing a deterrent against secession, it is argued the Union’s institutions should be ‘open and constructive’.263 It seems illogical that a seceding entity could automatically lose its membership of the EU but, in the case of withdrawal from the EU, there is a formal process for negotiated independence, to regulate the withdrawing state’s future relationship with the EU.264

261 Neil Walker, ‘Internal Enlargement in the European Union: Beyond Legalism and Political Expediency’, 45, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017). 262 Dimitry Kochenov, ‘Scotland and the EU: Comment by Dimitry Kochenov’ (10 September 2014) Verfassungsblog – On Matters Constitutional. Available at: http://verfassungsblog.de/scotland-eu-comment-dimitry-kochenov-2/ (last accessed: 07 August 2016); Sionaidh Douglass-Scott, ‘Scotland and the EU: Comment by Douglas-Scott’ (17 September 2014) Verfassungsblog – On Matters Constitutional. Available at: http://verfassungsblog.de/scotland-eu-eleventh-hour-thoughts-contested-subject-2/ (last accessed: 05 August 2016), and; Tobias Lock, ‘A European Future for Scotland?’ (28 June 2016) European Futures. Available at: http://www.europeanfutures.ed.ac.uk/article-3564 (last accessed: 05 August 2016), and; Dimitry Kochenov and Martijn van den Brink, ‘Secessions from EU Member States: The Imperative of Union’s Neutrality’ (2016) Law School Research Paper Series: Europa Working Paper No. 2016/04 1, 15 and 22. 263 Dimitry Kochenov and Martijn van den Brink, ‘Secessions from EU Member States: The Imperative of Union’s Neutrality’ (2016) Law School Research Paper Series: Europa Working Paper No. 2016/04 1, 23. 264 Alfonso González Bondia, “Legal scenarios for the European Union's relations with new states emerging from a secession process from a member state”. Available at: http://perspectives-estat.espais.iec.cat/en/ (last accessed: 31 January 2018).

Whilst, arguably, the EU’s position lacks neutrality, there are a number of arguments that militate in favour of the ‘Barroso view’ If a seceding entity were simply allowed to remain a part of the EU, automatically, this could encourage secession in the EU.265 Furthermore, as a seceding entity must actually apply to join the EU, it should not be automatically assumed it would be willing to be bound the EU’s treaty obligations.266 This is reinforced by the fact that the EU is a sui generis organisation. Moreover, membership of the

EU is only granted to states that meet certain accession criteria. If a seceding entity were to gain admission to the EU, automatically, it would by-pass such rules making them redundant.267 If accession were automatic, it would violate the rights to self-government of the candidate country and existing Member

States to consult and seek the consent of their own citizens to such a course of action.268 However, it could be argued a seceding entity already fulfils some or all of the admissions criteria, through the prior application of EU law on its own territory. Further support for the Commission’s position can be found in the Treaties. Article 50(5) TEU provides the procedural basis for a state to re- join the EU, according to the procedure in Article 49. By way of an analogy, this would seem to suggest that in the case of secession, a seceding entity would have to re-apply to become a member of the EU.

265 Belen Olmos Giupponi and Hannes Hofmeister, ‘The ‘‘Day After’’ the Scottish Referendum: Legal Implications for Other European Regions’ (2015) 36(3) Liverpool Law Review 211, 224. 266 Christopher Connolly, ‘Independence in Europe: Secession, Sovereignty, and the European Union’ (2013) 24 Duke Journal of Comparative & International Law 51, 87, and; Daniel O’Connell, The Law of State Succession (Cambridge University Press 2015), 65. 267 Christopher Connolly, ‘Independence in Europe: Secession, Sovereignty, and the European Union’ (2013) 24 Duke Journal of Comparative & International Law 51, 85. 268 Joseph Lacey & Rainer Bauböck, ‘Enlargement, association, accession – a normative account of membership in a union of states’ (2017) Journal of European integration 1, 9.

3.4 The position of pubic international law

It is necessary to consider whether a seceding entity would automatically succeed to membership of the EU under international law.269 This is provided, of course, the continuator state maintains its legal personality despite changes to its territory and population, for example.270 The Vienna Convention on the

Law of Treaties does not address the issue of state succession271, but the

Vienna Convention on Succession of States in Respect of Treaties does.272 It refers to some of the consequences that might arise following a change of sovereignty over territory or the creation of a new state.273 State succession does not, however, regulate the process of the transfer of sovereignty or the creation of statehood itself. Article 34 of the VCSSRT provides that successor states will, automatically, continue to be bound by treaties that were in force, over the entire territory of the state from which a territory seceded, at the date of succession. Even if Article 34 of the VCSSRT constituted a rule of customary law (the prevailing view would suggest otherwise)274, according to

Article 4(a) of the VCSSRT, the rules contained within Articles 34 - 37 apply:

269 A ‘successor state’ would be an entirely new state that came into existence following a change of sovereignty over its territory and a ‘predecessor state’ would be the parent state that has lost territory/from which a region/territory has seceded. 270 On the ‘(legal) extinction’ of states see, generally, James Crawford, The Creation of States in International Law (2006 Oxford University Press), 700 - 701. 271 See Article 73 of the same treaty. 272 Hereafter, ‘VCSSRT’. See Article 2(1)(b) of the Vienna Convention on Succession of States in respect of Treaties (1978) and Draft Article 2(1)(a) of the Law Commission’s Draft Articles on Nationality of Natural Persons in relation to the Succession of States (1999) for a definition of ‘state succession’. See also, Article 2(1)(a) of the Vienna Convention on Succession of States in respect of State Property, Archives and Debts (1983), but this has not yet entered into force. 273 See Articles 34 - 37 of the Vienna Convention on Succession of States in Respect of Treaties (1978). 274 This is not entirely settled. Whilst there is a consistent practice, state practice on succession to treaties is not uniform- there is no general rule and, prima facie, it would depend on an international organisation’s particular rules or articles of agreement. See, on this point: Malcolm Shaw, International Law (6th ed. Cambridge University Press 2008), 980 - 981.

“...without prejudice to the rules concerning acquisition of membership and without prejudice to any other relevant rules of the organization”. As such, the rules of state succession to treaties, generally, do not apply to membership of international organisations. Membership of international organisations would depend on the articles of agreement or rules of the particular organisation.275

In this respect, international law treats the international organisation as lex specialis. Recourse must, therefore, be had to the rules of the (EU) Treaties on this matter. However, they are silent of the consequences of secession.

What is more, a claim that a seceding entity would automatically remain a member of an international organisation (such as the EU) based on the Vienna

Convention on Succession of States in Respect of Treaties, must be considered in light of Articles 34(1)(a), 34(2)(b) and Article 35 of the VCSSRT.

These provisions require consideration to be given to the object and purpose of the relevant treaty. In the case of the (EU) Treaties, automatic succession to the Treaties would go against the purpose of Article 49 TEU, which requires new states to meet the accession criteria.

With respect to customary international law on state succession to treaties, it is commonly accepted that in cases of secession, membership in international organisations cannot be acquired by way of succession. This is reflected in cases involving the United Nations and Council of Europe. A seceding entity must apply anew for membership in those organisations, even if the predecessor state has been or continues to be a member. Members of the

275 Ian Brownlie, Principles of Public International Law (7th ed. Oxford University Press 2009), 442 - 443. See, for example, the reservation clause in Article 4 of the UN Charter and Article 5 of The Vienna Convention on the Law of Treaties (1969).

United Nations have been reluctant to admit seceding entities following cases of unilateral secession. Indeed, “there is no case since 1945 where it has done so”.276 Thus, state practice gives precedence to the principle of territorial integrity. Typically, although not always277, new states do not succeed to or automatically inherit international treaty obligations of the former parent state.

This is especially so with regard to treaties governing membership in international organisations, such as the EU.278 The predecessor state would be the only one to automatically retain its existing membership. Thus, it is argued the VCSSRT does not represent the approach of international organisations.279 The rules of customary international law on treaty succession are not reflected in the text of the convention.

According to the ‘clean slate rule’ in international law, set out in Article 16 of the VCSSRT, a newly created state is free to decide whether or not to be bound by pre-existing treaty commitments. This would mean that a treaty in

276 James Crawford, The Creation of States in International Law (2nd ed., Oxford University Press 2007), 417. 277 The practice of international organisations has ranged from the use of the accession procedure provided for in the constituent treaties of international organisations for the entry of third states to the automatic admission of new states, as well as simplified ad hoc admission processes which have been agreed upon for the specific occasion.; 278 Matthew Happold, ‘Independence: in or out of Europe? An independent Scotland and the European Union’ (2000) 49 International and Comparative Law Quarterly 15, 20 – 27; James Crawford and Alan Boyle, ‘Annex A Opinion: Referendum on the Independence of Scotland – International Law Aspects’ (2013), 92 - 95 (paras. 119 - 133). Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79408/Annex_A. pdf (last accessed: 13 November 2017), and; Mario Martini and Matthias Damm, ‘Succession of States in the EU’ (2014) Ancilla Iuris, 168. 279 Only 22 states have ratified the VCSSRT and in the EU only six Member States are a ‘party’ to the convention (Croatia, Cyprus, Czech Republic, Estonia, Slovakia, Slovenia); although Poland is a ‘signatory’ to the VCSSRT and, therefore, only in political support of the Convention - free from any legal obligation under the Convention – the Treaty has not entered into force in Poland. See, generally: Anthony Aust, ‘Vienna Convention on Succession of States in Respect of Treaties’ (2009) United Nations Audio-visual Library of International Law. Available at: http://legal.un.org/avl/pdf/ha/vcssrt/vcssrt_e.pdf (last accessed: 13 November 2017).

97 force at the date of succession, would not automatically be applicable to a successor state. This is not to mention that its continued and automatic application would have to be compatible with the object and purpose of the treaty itself.280 However, Article 16 of the VCSSRT only applies to “newly independent states”. The definition of a newly independent state constitutes a successor state which, before the date of succession, was a dependent territory.281 This would mean for example, that the parent state would have been responsible for its international relations. Article 16 of the VCSSRT, therefore, only applies to states with a colonial history and not seceding entities. It would not be applicable in the context of the EU.282 The VCSSRT, therefore, does not provide any binding rules on how to treat state succession in the context of the EU.

3.5 Interim summary and concluding remarks

In chapter three, I examined the position of the EU with respect to the consequences of secession. The EU’s political institutions have declared a seceding entity will become a ‘third country’ with respect to the EU and, therefore, would have to apply for membership like any other state wishing to join the EU. However, the EU has remained silent on the consequences of unilateral secession for a break-away region in terms of its membership of, and future relationship with, the EU. The consequences of secession are not set

280 See Articles 17(1) and (3) of the VCSSRT. 281 Andreas Zimmermann, ‘Secession and the law of State succession’ in Marcelo Cohen, Secession: International Law Perspectives (Cambridge University Press 2006), 210 and 213. 282 Mario Martini and Matthias Damm, ‘Succession of States in the EU’ (2014) Ancilla Iuris, 165. Available at: https://www.anci.ch/doku.php?id=beitrag/martini_damm_succession (last accessed: 13 November 2017).

98 out in the Treaties and whilst they are outlined in the VCSSRT, at an international level, this is not applicable to cases in the EU. Thus, as one author has put it: “The only answers to these questions that international and

European law are able to provide closely resemble the notion of fuzzy logic: no binary, ‘true’ or ‘false’ statements seem possible, merely approximate indications.”283 With regard to the recent unilateral declaration of independence by Catalonia, this situation did not present the EU with a real opportunity to definitely or conclusively clarify the law in this area. Whilst the

Union’s political institutions subsequently declared the declaration of independence by Catalonia to be unlawful and in breach of the rule of law, it has not, importantly, clarified what the consequences of such a breach would be with regard to EU membership. However, in observance of the rule of law and the principle of sincere or loyal cooperation, EU Member States would be legally obliged not to recognise a seceding entity that had declared its independence without the consent of its parent state. Indeed, no state subsequently recognised Catalonia as an independent sovereign state. A seceding entity would be prevented from applying for membership as a

‘European state’ according to the terms of Article 49 TEU. In this chapter, I examined the position of the EU with respect to the legal consequences of secession. According to the ‘Barroso view’, a seceding entity would become a third country and be required to apply to join the EU via Article 49 TEU.

However, this is not an entirely settled debate, which I consider in greater detail, in the next chapter.

283 Henri de Waele, ‘Secession and Succession in the EU Fuzzy Logic, Granular Outcomes?’ In Catherine Brölmann and Thomas Vandamme (eds.) Secession within the Union: intersection points of international and European law: collected think pieces (Amsterdam Center for International Law 2014) 1, 34.

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CHAPTER FOUR

SECESSION AND ROUTES TO EU MEMBERSHIP

4.0 Chapter overview

In chapter three, I examined the position of the EU with respect to the legal consequences of secession. Chapter three helps inform the content of a draft treaty provision addressing secession including, the procedural route it is expected a seconding entity would have to take to re-join the EU. In chapter four, I consider, in greater detail, the route it is expected a seceded entity would have to take to re-join the EU, according to the mainstream view. I also consider the legitimacy and viability of a route which, it has been proposed by some, would allow a seceding entity to ensure the continuity of its membership of the EU. This has generated a polarised debate. I examine the routes available under both Articles 49 and 48 TEU which, respectively, concern applications to join the EU by ‘third countries’ and the amendment/revision of the Treaties by existing Member States. I also make reference to the constitutional ‘crisis’ that could arise from the potential territorial reconfiguration of the UK, following the UK’s withdrawal from the EU on 31

January 2020. I examine the options that have been considered by certain devolved regions of the UK, to secure and retain their membership of the EU, in the lead up to the UK’s withdrawal from the EU. It has rightfully been pointed

101 out that securing EU membership outside of the scope of the formalised accession procedure will require legal ingenuity.284

Unlike a case of secession, whereby a loss of EU membership would be a direct consequence of independence, in the case of a Member State’s withdrawal from the EU, the loss of a region’s/territory’s EU membership would arise as a result of the decision by a parent state to withdraw from the EU.

Thus, the latter would represent what has been termed pseudo-remedial secession.285 Legally-speaking, in line with Article 50(1) TEU, the UK is permitted to decide to withdraw from the EU without seeking the consent of its devolved regions.286 However, politically-speaking, the decision to do so conflicts with the desire of devolved regions to remain in the EU.

In the UK’s recent ‘in-out referendum’, Scotland, Northern Ireland and the

British Overseas Territory of Gibraltar, voted to remain in the EU, whereas

England and Wales voted to leave. As a result, Scotland and Northern Ireland have automatically lost their membership of the EU following the UK’s withdrawal from the EU. Options for both countries to secure and retain their membership of the EU have, however, been explored. Specifically, in this chapter, I consider: (i) the question mooted at the start of the UK’s withdrawal negotiations over the potential for the involvement of the devolved

284 Nikos Skoutaris, ‘From Britain and Ireland to Cyprus: Accommodating ‘Divided Islands’ in the EU Political and Legal Order’ (2016) European University Institute - Working Paper AEL 2016/02 1, 4. 285 Carlos Closa, ‘Changing EU internal borders through democratic means’ (2017) 39(5) Journal of European Integration 515, 525. 286 R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, at para. 148.

102 administrations (with particular reference to Scotland) in the UK’s withdrawal negotiations; (ii) a ‘reverse Greenland’ scenario including the potential for the

Treaties to have been revised/amended so that they could apply to the relevant constituent parts of the UK excluding ‘England and Wales’, with Scotland and, potentially also, Northern Ireland remaining in the EU; and; (iii) a potential reunification between Northern Ireland and the Republic of Ireland, which could allow Northern Ireland to secure its membership of the EU.

4.1 The normal EU accession procedure

As I noted in chapter three, above, according to the mainstream view, a seceding entity would have to apply to join the European Union ex or de novo, like any other state. States applying to join the EU must satisfy the requirements codified in Article 49 TEU and as set out in the ‘Copenhagen criteria’ for accession, which reflect the political practice of the European

Council.287 However, a seceded entity would first need to be recognised as an independent sovereign state by all Member States. Achieving unanimity in the Council could be problematic, should a Member State decide to exercise its right to veto a decision. Indeed, the former President of the European

Commission had stated it would be: “extremely difficult if not impossible”288 for

287 The ‘Copenhagen Criteria’: European Parliament, ‘Presidency Conclusions - Copenhagen European Council – 21 - 22 June 1993’. Available at: http://www.europarl.europa.eu/enlargement/ec/pdf/cop_en.pdf (last accessed: 16 February 2017). According to Article 49 TEU, the ‘Copenhagen criteria’ must be considered: “The conditions of eligibility agreed upon by the European Council shall be taken into account.” Indeed, this confirms their constitutional nature. 288 The Guardian, ‘Independent Scotland 'would find it extremely difficult to join EU’ (16 February 2014). Available at: http://www.theguardian.com/politics/2014/feb/16/independent-scotland- extremely-difficult-join-eu (last accessed: 09 August 2016).

103 an independent Scotland to gain the support of all Member States to accede to the EU. Even if a state successfully progressed through the accession process, ultimately, an Accession Treaty would need to be agreed between the governments of all Member States and the candidate state. The agreement would then need to be ratified by all Member States according to their own constitutional requirements. The constitutional requirements of

Member States would require that the authorisation for ratifying treaties take place either in parliament or by way of a referendum. However, this could also prove to be problematic.289 For example, the French Constitution, provides that the ratification of an Accession Treaty could (although not compulsory) be put to a referendum. It remains open to the French Parliament to veto such a decision, by way of an ‘enhanced’ three fifths majority.290 Accordingly,

Member States can veto the accession of a candidate state even after the signing of an Accession Treaty. Accession to the EU is, thus, a lengthy and complex process that it is ultimately a politically-driven process controlled by the governments of Member States, in the Council.291 The same point would apply, mutatis mutandis, to the argument put forward by the Scottish

Government that Scotland could ensure continuity in its EU membership by, simply, amending the territorial scope of application of the Treaties under

289 Susanna Fortunato, ‘Article 49 [Accession to the Union]’, at 1373 and 1375, in Hermann- Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 290 Articles 88(5) and 89 (3) of the French Constitution (04 October 1958, as amended), at 42. Available at: http://www.conseil-constitutionnel.fr/conseil- constitutionnel/root/bank_mm/anglais/constiution_anglais_oct2009.pdf (last accessed: 28 October 2016), and; See: Nikos Skoutaris, ‘Territorial Differentiation in EU Law: Can Scotland and Northern Ireland Remain in the EU and/or the Single Market’ (2017) 19 Cambridge Yearbook of European Legal Studies 287, 294. 291 Susanna Fortunato, ‘Article 49 [Accession to the Union]’, 1358 and 1381, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013).

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Article 52 TEU. The average timeframe for accession is estimated to take around six years.292 With reference to the referendum on independence in

Scotland in 2014, it was said a break-away region could find itself at the back of the queue for membership.293 In reality, however, there is no such queue in legal terms. Of course, EU law would already have been applied on the territory of the break-away region, by virtue of the parent state’s membership of the EU, which may expedite the process of accession. During the 1995 enlargement of the EU, from the date of the submission of the application to join the EU to the conclusion of an accession agreement, it is of note that

Austria, Finland and Sweden (membership of the EU was rejected in a referendum by Norway) were able to complete their accession in around 2 to

5 years, respectively. The degree of complexity and length of a country’s accession to the EU would depend not only on the political aspects of the negotiating process, but also on how well a state is able to demonstrate it meets the accession criteria.

4.2 De facto enlargement

Article 48 TEU, via the ordinary treaty revision procedure, could provide an alternative procedural basis for a seceding entity to secure its membership of the EU. This allows for amendments to be made to the EU Treaties by existing

292 Phedon Nicolaides and Sylvia Boean, ‘The Process of Enlargement of the European Union’ (1996) 3 Eipascope 1, 3, and; Phoebus Athanassiou, and; Stephanie Laulhe Shaelou, ‘EU Accession from Within? – An Introduction’ (2014) 33 Yearbook of European Law 1, 346 - 347. 293 The Scottish Independent, ‘Scottish independence: Scotland ‘would be put at the back to the queue to join EU’ says David Cameron’ (02 June 2014). Available at: http://www.independent.co.uk/news/uk/politics/scottish-independence-scotland-would-go-to- the-back-to-the-queue-to-join-eu-says-david-cameron-9475319.html (last accessed: 09 August 2016).

105

Member States. The simplified revision procedure would not be applicable in a case of secession, as that procedure can only be used for revisions to the TFEU, including the EU’s internal policies/actions. It is not possible to confer new competences on the EU using this procedure.294 It has been argued by the incumbent Scottish government295 (who seek to retain EU membership), as well as other authors, that it would be possible to amend the territorial scope of application of the Treaties in Article 52 TEU.296 As a result of an amendment to the EU Treaties, the rights and duties created by the

294 Article 48(6) TEU. 295 The Scottish Government, ‘Scotland’s Future – Your Guide to an independent Scotland’ (2013), 221 and 457 (at para. 256). Available at: http://www.gov.scot/Resource/0043/00439021.pdf (last accessed: 26 April 2016). 296 See, for example, Graham Avery, ‘Could an Independent Scotland join the European Union?’ European Policy Centre - Policy Brief (2014). Available at: http://www.epc.eu/documents/uploads/pub_4487_scotland_and_the_eu.pdf (last accessed: 28 December 2017); Sionaidh Douglas-Scott, ‘How Easily could an independent Scotland join the EU’ (2014) University of Oxford Legal Research Paper Series 1, 24; Daniel Kenealy and Stuart MacLennan, ‘Sincere Cooperation, Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland’s Future in the European Union?’ (2014) 20(5) European Law Journal 591, 598 – 601; Sionaidh Douglas-Scott, ‘Scotland, Secession and the European Union’ (2019) Queen Mary University Legal Studies Research Paper No. 301/2019 1, 1 – 3. In contrast, see for example: The Scottish Parliament, ‘Annex A - Written Evidence from Sir David Edward to European and External Relations Committee (Scotland’s position in the European Union)’ 2nd Meeting 2014 Session 4 (23 January 2014) 1, 16. Available at: http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Meeting%20Papers/ Public_papers_23_Jan_2014.pdf (last accessed: 28 December 2017); James Crawford and Alan Boyle, ‘Annex A Opinion: Referendum on the Independence of Scotland – International Law Aspects’ appended to HM Government, Scotland Analysis: Devolution and the Implications of Scottish Independence (CM 8554, 2013) (2013), 92 - 95 (paras. 119 - 133). Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79408/Annex_A. pdf (last accessed: 13 November 2017); Merijn Chamon and Guillaume Van der Loo, ‘The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and Fragmentation versus Widening and Deepening?’ (2014) 20(5) European Law Journal 613, 618; Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 262, and; Jean-Claude Piris, ‘Political and Legal Aspects of Recent Regional Secessionist Trends in some EU Member States (I), 80 - 87, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017); Antonio Lopez Castillo, ‘State Integration and Disintegration Within the European Union. Regarding the Purported Secession of Catalonia and Its Hypothetical Membership of the EU’ in Alberto Lopez-Basaguren and Leire Escajedo San-Epifanio, Claims for Secession and Federalism (Springer 2019), 569 - 570 and Adoración Galera Victoria, ‘The Catalan Independence Movement in the Political and Constitutional Debate in the European Union’ in Alberto Lopez-Basaguren and Leire Escajedo San-Epifanio, Claims for Secession and Federalism (Springer 2019), 580 and 584.

106

Treaties would be extended and automatically apply to a seceding entity.297

As such, a seceding entity would not have to make a formal application to join the EU. This would, therefore, represent a de facto or internal ‘enlargement’ of the EU. It is important to note such an ‘enlargement’ would not result in a real enlargement of the European Union. More accurately, it would result in a fragmentation of the EU. This is because the territorial scope of application of the Treaties would remain the same, but there would be a greater number of constituent Member States.298

According to the Scottish Government, Article 48 TEU would have allowed

Scotland to remain a part of the EU, as a Member State. It would, therefore, have provided for a “seamless transition” from independence to membership of the EU.299 This would have avoided a gap in time between a region’s declaration of independence and accession to the EU.300 This would provide legal certainty and uphold the rule of law.301 Furthermore, the automatic non- application of EU law would ignore the democratic right of a region to

297 The Scottish Government, ‘Scotland’s Future – Your Guide to an independent Scotland’ (2013), 221 - 222 and 457. Available at: http://www.gov.scot/Resource/0043/00439021.pdf (last accessed: 26 April 2016). 298 Merijn Chamon and Guillaume Van der Loo, ‘The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and Fragmentation versus Widening and Deepening?’ (2014) 20(5) European Law Journal 613, 614. 299 The Scottish Parliament, Report on the Scottish Government's proposals for an independent Scotland: membership of the European Union (2014), at 220. Available at: http://www.scottish.parliament.uk/parliamentarybusiness/CurrentCommittees/76844.aspx (last accessed: 26 April 2016). 300 The Scottish Government, ‘Scotland’s Future – Your Guide to an independent Scotland’ (2013), 221 - 222. Available at: http://www.gov.scot/Resource/0043/00439021.pdf (last accessed: 26 April 2016). 301 Kirstyn Inglis, ‘Towards a Continuity and Transition for Scotland’s EU membership’ (2016) Working Paper for the Jean Monnet Supplement to the Análise Caeni Newsletter (University of Sáo Paulo) 1, 2. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2881471 (last accessed: 10 January 2017).

107 determine its own political future. As such, it would be in breach of the EU’s own values in Article 2 TEU.302

However, a proposal to amend the Treaties would need to be initiated by the government of a Member State, the European Commission or the European

Parliament. Thus, the process of treaty amendment/revision could not be initiated by a seceding entity. According to the General Court, ‘the concept of a Member State…only applies to the government authorities of the Member

States…and cannot be extended to regional governments or self-governing communities’ for the purposes of Article 263(2) TFEU (i.e. privileged applicant status).303 According to the ECJ in Region Wallonne v Commission

Europeenne: “It is not possible for the European Communities to comprise a greater number of Member States than the number of States between which they were established”.304 Thus, the number of states negotiating a treaty amendment cannot exceed and must be kept to the number of (existing)

Member States listed in Article 52 TEU.305 Accordingly, they cannot include:

“…the government of regions or autonomous communities, irrespective of the

302 The Scottish Parliament, ‘Annex A - Written Evidence from Sir David Edward to European and External Relations Committee (Scotland’s position in the European Union)’ 2nd Meeting 2014 Session 4 (23 January 2014) 1, 13 - 14. Available at: http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Meeting%20Papers/ Public_papers_23_Jan_2014.pdf (last accessed: 18 May 2017), and; Neil Walker, ‘Blog - Hijacking the Debate - The Future of the United Kingdom and Scotland (ESRC)’ (21 February 2014). Available at: http://www.futureukandscotland.ac.uk/blog/hijacking-debate (last accessed: 01 November 2016). 303 Joined Cases T-32/98 and T-41/98 Netherlands Antilles v Commission [2000] ECR II-201, at para. 43. See: Merijn Chamon and Guillaume Van der Loo, ‘The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and Fragmentation versus Widening and Deepening?’ (2014) 20(5) European Law Journal 613, 619. 304 Case C-95/97 Region Wallonne v Commission of the European Communities [1997] ECR I- 1787, 1791 (para. 6). 305 Merijn Chamon and Guillaume Van der Loo, ‘The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and Fragmentation versus Widening and Deepening?’ (2014) 20(5) European Law Journal 613, 620.

108 powers they may have”.306 Thus, a seceding entity would be reliant on the parent state to instigate negotiations and initiate the process under Article 48

TEU on its behalf, which may be problematic.307 Thus, only an arrangement whereby the UK left the EU, but had remained in the Single Market and

Customs Union could have left open a potential claim, by Scotland, to its use of Article 48 TEU.308 However, the legal validity of this is argument is debateable. Even if the UK remains in the Single Market and the Customs

Union after the end of the transition period, it will not be able to take part in a treaty amendment, as that is only open to the Governments of Member States.

As such, the suggestion of the Scottish Government that Scotland could utilise

Article 48 TEU to secure continuous EU membership expired on 31 January

2020, when the UK (and its constituent parts) withdrew from the EU.

Unanimity is required in order to make amendments/revisions to the Treaties.

An amendment will enter into force after being ratified by all EU Member States in accordance with their respective constitutional requirements.309 Thus, a parent state or any other Member State could veto the process. Spain, which has faced strong support in Catalonia for independence, and which is opposed to such independence, could veto Scotland’s use of Article 48 TEU, for

306 Case C-95/97 Region Wallonne v Commission of the European Communities [1997] ECR I- 1787, 1791 (at para. 6). 307 See the comments made by Patrick Layden QC, in his written evidence to the House of Commons on ‘Scotland’s referendum for independence and Scotland’s Membership of the EU. Available at: http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Meeting%20Paper s/Written_evidence_Patrick_Layden_QC_TD.pdf (last accessed: 09 August 2016). 308 Kirsty Hughes, ‘Brexit Transition, Scotland and Independence: Has a New Route Opened Up?’ (28 July 2017) Scottish Centre on European Relations. Available at: https://www.scer.scot/database/ident-3193 (last accessed: 28 November 2017). 309 Article 48(4) TEU.

109 example. Whilst ratification can and does take place through a state’s own parliamentary procedure for ratification, the constitutions of some Member

States also require a referendum. Most Member States are not required to hold referendums on accession and secession, but they now appear to be the norm. For example, ten of the last eleven Member States that acceded to the

EU did so by way of referendum.310 According to the Irish Supreme Court in

Crotty v An Taoiseach311, where any amendments contained in a new EU treaty constitutes an “alteration in the essential scope and objectives of the

Communities”312, this would require the Republic of Ireland to amend their own

Constitution and, as a consequence, hold a referendum on the matter. The

Supreme Court upheld the application of Article 46 of the Irish Constitution, which requires a referendum to be held if the Constitution is to be amended.313

In the Crotty case, the Republic of Ireland could not ratify the Single European

Act 1986, until the Irish Constitution was changed to permit its ratification. A fortiori, an Irish referendum might need to be held before the Treaties could be amended to accommodate Scotland’s EU membership via Article 48 TEU. If other Member States have similar provisions in their constitution, this could prove to be problematic further still.314 Whilst some Member States are required to hold binding referendums with respect to changes to the Treaties, other Member States leave the ratification decisions to parliaments and some merely opt for a non-binding or consultative referendum. What is more,

310 Joseph Lacey, Centripetal Democracy: Democratic Legitimacy and Political Identity in Belgium, Switzerland, and the European Union (Oxford University Press 2017), 114. 311 Raymond Crotty Plaintiff v An Taoiseach and Others [1987] IESC 4. 312 Ibid, per Chief Justice Finlay at paras. 6 and 21. 313 Maria Cahill, ‘Crotty after Pringle: The Revival of the Doctrine of Implied Amendment’ (2014) 17(1) Irish Journal of European Law 1, 5. 314 Richard Hoyle, ‘Scottish Independence and EU Membership: Part II’ (16 September 2014) EJIL: Talk! Blog of the European Journal of International Law. Available at: http://www.ejiltalk.org/12126/ (last accessed: 14 July 2016).

110 ratification procedures are not simultaneous or consistent amongst Member

States.315 Ratification procedures may also take place at different points in time, leading to unequal conditions and opportunities for political debate.316

Where ratifications take place later in some Member States, as compared to others, it is argued there exists more pressure to avoid going against the wishes of the majority of Member States who have already passed that treaty change/amendment. Where ratification takes pace earlier, there is more chance of debate on the merits of a proposed treaty change/amendment.317

The procedure contained in Article 48 TEU may require a Convention, which it is up to the European Council to decide (by way of a simple majority), for the purpose of making a recommendation on the proposed amendments.318 Such a Convention would hold treaty negotiations in public by bringing in members of national parliaments and European institutions, including the European

Parliament. This could be achieved in consultation with and taking into account the input of other key constitutional actors/bodies/stakeholders, advisory groups, experts, civil society and the general public.319

4.3 EU membership negotiated through a parent state

In the 2016 referendum on the UK’s ‘in/out membership’ of the EU, Scotland,

Northern Ireland, including Gibraltar, all voted for the UK to remain a member

315 Joseph Lacey, Centripetal Democracy: Democratic Legitimacy and Political Identity in Belgium, Switzerland, and the European Union (Oxford University Press 2017), 118. 316 Ibid, 118. 317 Ibid, 118. 318 Article 48(3) TEU. 319 Neil Walker, ‘Internal Enlargement in the EU’, at 44, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017).

111 of the European Union. As a matter of legal principle, under Article 52 TEU , a Member State is a member of the EU and not its constituent parts, separately. The UK (and its constituent parts) withdrew from the EU on 31

January 2020. As a result, Scotland, Northern Ireland and Gibraltar320 lost their EU membership along with the UK. The potential for the direct involvement/participation of the devolved regions in the UK’s withdrawal negotiations with the EU was an option that had been explored.321 For example, the Scottish government had tried to influence the UK government to protect Scotland’s interests.322 It had advocated for its formal involvement in the UK’s withdrawal negotiations before any withdrawal agreement took effect, so as to be able to negotiate its future relationship with the EU. Any withdrawal agreement must take into account a Member State’s future relationship with the EU. Thus, the Scottish government argued that

Westminster should negotiate Scotland’s future relationship with the EU as part of the UK’s withdrawal agreement. Specifically, Scotland had sought a differentiated ‘Brexit’ which would have allowed Scotland to remain in the

Singe Market, as well as the Customs Union. This would have required the

UK to agree to retain its membership of the European Economic Area but seek

320 Gibraltar is the only British overseas territory that has been a part of the EU. See the Treaty concerning the Accession of the Kingdom of Denmark, Ireland, the Kingdom of Norway and the United Kingdom to the EEC and the EAEC (22 January 1972). The UK is responsible for Gibraltar’s foreign affairs and international relations, including its relationship with the EU. According to Article 355(3) TFEU (formerly Article 299(4)3 of the EEC Treaty), in addition to Article 52 TEU (on the territorial scope and application of the Treaties), the Treaties also apply to: "the European territories for whose external relations a Member State is responsible". 321 See, generally: Nikos Skoutaris, ‘The Role of Sub-State Entities in the EU Decision-Making Processes’ in Elke Cloots, Geert De Baere and Stefan Sottiaux (eds.) Federalism in the European Union (Modern studies in European law) (Hart Publishing 2012); Tobias Lock, ‘A European Future for Scotland?’ European Futures. Available at: http://www.europeanfutures.ed.ac.uk/article-3564 (last accessed: 05 August 2016). 322 Scottish Government, ‘EU Negotiations and Scotland’s Future’ (27 June 2017). Available at: https://news.gov.scot/speeches-and-briefings/eu-negotiations-and-scotlands-future (last accessed: 10 July 2017).

112 a territorial exemption for England and Wales. Such an arrangement would have left Scotland and potentially also Northern Ireland in the EEA.323 It is important to point out that EEA states, whilst they are members of the Single

Market, are not participating in the Customs Union. Therefore, an arrangement that would keep Scotland (or the UK) within both the Single

Market and the Customs Union would need to go beyond membership of the

European Economic Area. However, such a differentiated solution would have required a further devolution of powers to the Scottish legislature e.g. to enable it to take part in the Common and Foreign Security Policy.324 The UK government also sought to take into account Gibraltar’s interests and future relationship with the EU during withdrawal negotiations.325 In particular, this had included the need to take into account Gibraltar’s access to the Single

Market, given the economic impact that Brexit will have on Gibraltar.326 In

November 2018, the EU and UK concluded a withdrawal agreement and political declaration on the UK’s future relationship with the EU327, with a

323 Scottish Government, ‘Scotland’s Place in Europe’ (20 December 2016) at 24 (paras. 95 and 98), 25 - 26 (paras. 99 and 100), 26 (para. 107) and 29 (para. 120). Available at: http://www.gov.scot/Publications/2016/12/9234 (last accessed: 14 April 2017); see also Merijn Chamon and Guillaume Van der Loo, ‘The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and Fragmentation versus Widening and Deepening?’ (2014) 20(5) European Law Journal 613, 625; See also: Tobias Lock, ‘A differentiated Brexit for Scotland’, at 35, in Gerry Hassan and Russell Gunson, Scotland, the UK and Brexit – A Guide to the Future (Luath Press Ltd 2017). 324 Tobias Lock, ‘A differentiated Brexit for Scotland’, at 35, in Gerry Hassan and Russell Gunson, Scotland, the UK and Brexit – A Guide to the Future (Luath Press Ltd 2017). 325 HM Government, ‘The United Kingdom’s exit from and new partnership with the European Union’ (February 2017) 1, 20 (para. 3.10). Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/589191/The_ United_Kingdoms_exit_from_and_partnership_with_the_EU_Web.pdf (last accessed: 10 February 2017). 326 House of Lords, ‘Brexit: Gibraltar’ European Union Committee – 13th Report of Session 2016 – 2017 (2017) 1, 11 - 12 Available at: https://publications.parliament.uk/pa/ld201617/ldselect/ldeucom/116/116.pdf (last accessed: 19 July 2017). 327 Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2019). Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12019W/TXT(01) (last accessed: 25 August 2019).

113 protocol setting out the UK’s arrangements, obligations and commitments with respect to Gibraltar.328 However, it was not possible to ratify the withdrawal agreement in accordance with the UK’s own constitutional requirements and this agreement will, therefore, not apply as the UK and Gibraltar have now left the EU without this agreement. A new withdrawal agreement was reached between the EU and the UK on 17 October 2019.329

As the UK does not have a written constitution, the rights of the devolved regions to participate in the EU decision-making processes are contained in various non-legislative, and therefore, non-binding ‘soft law’ provisions.330

Under the respective devolution settlements, foreign affairs/international relations, along with the power to negotiate and conclude a Treaty, are matters reserved to the Crown and, by extension, the UK central government. This, therefore, excludes any of the devolved administrations/regions.331 Indeed, according to paragraph 18 of the Memorandum of Understanding: “as a matter

328 See: Concordat concerning the implementation of the Gibraltar protocol to the withdrawal agreement and related memoranda of understanding between Her Majesty’s Government of Great Britain & Northern Ireland and Her Majesty’s Government of Gibraltar (2019). Available at: https://www.gibraltar.gov.gi/new/sites/default/files/HMGoG_Documents/CONCORDAT- FINAL-AS-AGREED.pdf (last accessed: 25 August 2019). 329 The October 2019 Withdrawal Agreement contains a protocol on Gibraltar. 330 Memorandum of Understanding, at paras. 17 - 20; Concordats on Co-ordination of European Union Policy Issues (Cm 5240, December 2001, Memorandum of Understanding and Supplementary Agreements Between the United Kingdom Government Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee), at paras. B1.2, B1.4, B2.2, B2.4, B3.2, B3.4, B4.2 and B4.3, and; Nikos Skoutaris, ‘The Role of Sub-State Entities in the EU Decision-Making Processes’ in Elke Cloots, Geert De Baere and Stefan Sottiaux (eds.) Federalism in the European Union (Modern studies in European law) (Hart Publishing 2012), 214 and 219. Available at: https://static1.squarespace.com/static/579f22aae3df287f00750a25/t/57f26cdd725e25e914af35 d2/1475505374339/SkoutarisSubstateentities.pdf (last accessed: 28 October 2016). 331 See section 7(1) in Part 1 of Schedule 5 of the Scotland Act 1998; section 3 of Schedule 2 of the Northern Ireland Act 1998, and; section 10(1) in Part 1 of Schedule 7A of the Government of Wales Act 2006 (as replaced by the new Schedule 7A of the Wales Act 2017).

114 of law, international relations and relations with the European Union remain the responsibility of the UK Government and the UK Parliament.” In R v Miller, the UK Supreme Court held that the devolved regions ‘do not have a legislative competence in relation to the withdrawal from the EU’.332 In particular, it was held the ‘Sewel Convention’333 is only a political convention and, as such, the

Scottish Parliament did not have to consent to the legislation that had been passed by Westminster authorising the government (Prime Minister) to notify the European Council of the UK’s intention to withdraw from the EU.334 During withdrawal negotiations with a Member State, the Union would remain bound by the values of the EU, as well as the withdrawing state. Therefore, according to the duty of sincere/loyal cooperation and the duty to respect the territorial integrity of EU Member States in Article 4 TEU, the Union would be prevented from engaging with a constituent part of a Member State in a manner contrary to the interests of the withdrawing state.335 Whilst not expressly provided for, the actual participation and assistance of devolved regions is not ruled-out in law.336 Indeed, the Scottish government had argued there exists support for sub-state entities to enter into international agreements with the EU. It drew, at the time, on the example of the Faroe Islands (a self-governing archipelago,

332 R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, 42 - 43 (para. 130). 333 Section 28(8) of the Scotland Act 1998, as amended by by sections 2 and 72(7) of the Scotland Act 2016. See also section 107 of the Government of Wales Act 2006, as amended by section 2 of the Wales Act 2017. 334 R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5, 48 (para. 148). See also: the European Union (Notification of Withdrawal) Act 2017. 335 Carlos Closa, ‘Changing EU internal borders through democratic means’ (2017) 39(5) Journal of European Integration 515, 521. 336 See for example, Schedule 5, section 7(2)(b) of the Scotland Act 1998 (as amended by the 2012 Act).

115 part of the Kingdom of Denmark) which is in the process of joining EFTA, as an independent country.337

Scotland’s First Minister had requested Scotland be fully involved in the negotiation process as an ‘equal partner’, with a formal vote on whatever final position the UK central government adopted.338 Scotland’s Brexit Minister had also stated the need for a ‘differentiated solution’.339 However, at a Joint

Ministerial Committee340, the, then, UK Prime Minister stated that the devolved nations would not be able to make a separate deal with the EU in relation to the UK’s withdrawal and, despite remaining committed to finding a compromise between all the devolved nations, stated that the UK’s central government’s position should not be undermined.341 In a speech on the government’s negotiating objectives for leaving the EU, the Prime Minister at the time stated that the devolved nations: “…should be fully engaged in this process” and stressed the importance of reaching a withdrawal agreement:

“…that works for the whole of the United Kingdom”.342 Whilst reference is

337 Scottish Government, ‘Scotland’s Place in Europe’ (2016), 32 (paras. 136 - 137). Available at: http://www.gov.scot/Resource/0051/00512073.pdf (last accessed: 10 February 2017), and see also in relation to other sub-state entities; Nikos Skoutaris, ‘Comparing the Subnational Constitutional Space of the European Sub-State Entities in the Area of Foreign Affairs’ (2012) 4(2) Perspectives on Federalism 239, 258 - 261. 338 Scottish National Party, ‘Nicola Sturgeon opening address to #SNP16’ (13 October 2016). Available at: https://www.snp.org/nicola-sturgeon-opening-address-2016/ (last accessed: 02 December 2018). 339 Scottish National Party, ‘Nicola Sturgeon speech on Brexit at the David Hume Institute’ (17 January 2018). Available at: https://www.snp.org/nicola-sturgeon-speech-on-brexit-at-the- david-hume-institute/ (last accessed: 02 December 2018). 340 Joint Ministerial Committee communiqué (24 October 2016), 2. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/562364/joint- ministerial-committee-communique-24-october-2016.pdf (last accessed: 28 October 2016). 341 Scottish National Party, ‘Except for voters in Scotland’ (20 October 2016). Available at: https://www.snp.org/except-for-voters-in-scotland-brexit/ (last accessed: 02 December 2018). 342 HM Government, ‘The government's negotiating objectives for exiting the EU: PM speech’ (17 January 2017). Available at: https://www.gov.uk/government/speeches/the-governments- negotiating-objectives-for-exiting-the-eu-pm-speech (last accessed: 18 January 2017)

116 made to the need to reach a special deal in relation to Northern Ireland343, and whilst this is reflected in the final withdrawal agreement, in which Northern

Ireland would remain partly in the EU Single Market and Customs Union344, no mention was made of how any of the devolved regions could have been represented or involved in the withdrawal process.345 The UK Prime Minister at the time only made reference to the need to preserve and strengthen the

Union.346 Arguably, therefore, with respect to the UK’s own constitutional framework, the room for the involvement/participation of the devolved regions in the UK’s withdrawal negotiations was limited and did not provide “a supportive environment”, which is restricted the “sub-constitutional space” of the devolved regions.347

343 Ibid. 344 See the revised agreement reached on 17 October 2019 between the EU and the UK titled, ‘Revised Protocol on Ireland and Northern Ireland included in the Withdrawal Agreement’, along with the ‘Revised Political Declaration’. Available at: https://ec.europa.eu/commission/sites/beta- political/files/revised_withdrawal_agreement_including_protocol_on_ireland_and_nothern_ir eland.pdf last accessed: 09 August 2020). The legal status of Northern Ireland after the end of the transition period is more complicated, however. According to Article 4 of the Protocol on Ireland/Northern Ireland, “Northern Ireland is part of the customs territory of the United Kingdom” but, according to Article 5(3), the Union customs code (legislation as drafted in point (2)(a) of Article 5 of Regulation (EU) No. 952/2013 of the European Parliament and of the Council), will continue to apply to Northern Ireland even as from the end of transition period (see Article 185). 345 Steve Peers, ‘Brexit: the Prime Minister sets the wrong course’ Blog - EU Law Analysis (17 January 2017). Available at: http://eulawanalysis.blogspot.co.uk/2017/01/brexit-prime-minister- sets-wrong-course.html (last accessed: 21 April 2017). 346 HM Government, ‘The government's negotiating objectives for exiting the EU: PM speech’ (17 January 2017). Available at: https://www.gov.uk/government/speeches/the-governments- negotiating-objectives-for-exiting-the-eu-pm-speech (last accessed: 18 January 2017) 347 Nikos Skoutaris, ‘Comparing the Subnational Constitutional Space of the European Sub- State Entities in the Area of Foreign Affairs’ (2012) 4(2) Perspectives on Federalism 239, 251.

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4.4 ‘Reverse Greenland’ option

Upon the UK’s withdrawal from the EU, it was suggested the EU Treaties could have been revised/amended so that they could continue to apply to the relevant constituent parts of the UK, but with a territorial exemption for

‘England and Wales’. This is because those regions voted, by way of a majority, to leave the EU.348 In 1985, Greenland withdrew from the EEC, whilst

Denmark (the parent state) remained a member of the Community. As the

EEC treaties contained no right of withdrawal, this was achieved by way of negotiation and an amendment to the Treaties. The Greenland Treaty was negotiated and concluded between Member States.349 Specifically, the

Greenland Treaty introduced a provision into the ECSC, EEC and Euratom

Treaties stating that “this Treaty shall not apply to Greenland”350 and listed

Greenland as an Overseas Country and Territory.351 The ‘reverse Greenland’ option presents a potential solution for other Member States contemplating withdrawal where a region/territory seeks to remain in the EU. It serves as a precedent for different parts of a state having different relationships with the

EU.352 Following the UK’s withdrawal from the EU on 31 January 2020, the

348 Tobias Lock, ‘A European Future for Scotland?’ European Futures. Available at: http://www.europeanfutures.ed.ac.uk/article-3564 (last accessed: 05 August 2016), and; Ulrik Gad, ‘Could a ‘reverse Greenland’ arrangement keep Scotland and Northern Ireland in the EU?’ (07 July 2016). Available at: http://blogs.lse.ac.uk/europpblog/2016/07/07/reverse-greenland- arrangement/ (last accessed: 21 April 2017). 349 The Greenland Treaty (1985). Available at: http://web.archive.org/web/20160304044627/http://naalakkersuisut.gl/~/media/Nanoq/Files/Att ached%20Files/Bruxelles/EU%20and%20Greenland/The%20European%20Union%20and%2 0Greenland/Greenland%20Treaty%20eng.pdf (last accessed: 21 April 2017). 350 See Article 79(2)(a) of the Treaty establishing the European Coal and Steel Community, Article 227 (5Xa) of the Treaty establishing the European Economic Community and Article 198(3)(a) of the Treaty establishing the European Atomic Energy Community. 351 See Annex II to the Treaties. 352 Sionaidh Douglas-Scott, ‘A UK exit from the EU: the end of the United Kingdom or a new constitutional dawn?’ Cambridge Journal of International and Comparative Law – Oxford Legal Research Paper No. 25 (05 March 2015) 1, 11, and; Tobias Lock, ‘A European Future for

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‘Reverse Greenland’ option is no longer legally tenable as the UK is not an EU

Member State.

It was proposed that the situation achieved for Greenland could have been engineered in reverse for Scotland. In theory, this could also have applied to

Northern Ireland or Gibraltar. Accordingly, the United Kingdom could have formally remained a member of the EU, but the Treaties would, on this view, could have been amended so as to exclude England and Wales from their scope of application. The UK could have withdrawn from the EU, whilst allowing parts of its territory, such as Scotland, to remain. However, as the UK has now left the EU, and is not a Member State, this is not possible, a ‘revere

Greenland’ solution is not legally an option any more. It has been pointed out there have been similar amendments to the Treaties, such as when the term

“Community” was replaced with the alternative term “Union”, for example.353

This option would have required a treaty amendment but, given the EU

Treaties would have needed to be amended anyway to reflect ‘Brexit’, this would not have been overly-problematic.354

The preferred option for Scotland was always to become a member of the EU as an independent country.355 However, failing that, the Scottish Government

Scotland?’ European Futures. Available at: http://www.europeanfutures.ed.ac.uk/article-3564 (last accessed: 05 August 2016). 353 Steve Peers, ‘Scotland, the EU and ‘indyref2’: the legal issues’ Blog - EU Law Analysis (14 March 2017). Available at: http://eulawanalysis.blogspot.co.uk/2017/03/scotland-eu-and- indyref2-legal-issues.html (last accessed: 17 March 2017). 354 Adam Lazowski, ‘Withdrawal from the European Union and alternatives to membership’ (2012) 37 European Law Review 523, 529. 355 Scottish Government, ‘Scotland’s Place in Europe’ (2016) at vi, at 1 (para. 3), 28 (para. 116) and 40 (para. 174). Available at: http://www.gov.scot/Resource/0051/00512073.pdf (last accessed: 10 February 2017).

119 had argued that the UK, as a whole, could have remained in the EU Singe

Market and Customs Union, by retaining its membership of the European

Economic Area, but with a territorial exemption for England and Wales - leaving Scotland and, also, potentially Northern Ireland in the EEA.356

Scotland would, thus, have remained a part of the UK, avoiding secession and a dissolution or break-up of the Union. This would have been a ‘reverse

Greenland’ option, but in relation to the UK’s membership of the EEA as opposed to the EU. Under this option, as Scotland would have remained within the UK, it would have required “sponsorship” from the UK Government for membership of EFTA or the EEA Agreement, as membership is only open to states.357 One author pointed to a precedent in the EU where this had already been achieved. The Kingdom of Norway had secured a territorial exemption for The Svalbard islands, which are not a part of the EEA.358 According to

Protocol 40(1) of the EEA Agreement: “When ratifying the EEA Agreement, the Kingdom of Norway shall have the right to exempt the territory of Svalbard from the application of the Agreement.”359 Thus, the UK could have remained a member of the EEA, but excluded England and Wales from the territorial scope of application of the Treaties. This would have required a fundamental

356 Ibid, at at vi, 3 (para. 9), 25 (para. 99) and 26 (para. 107), and; Tobias Lock, ‘Scotland’s place in Europe after Brexit: between a rock and a hard place? A legal scoping exercise’ (2017) 2 European Papers 183, 188 - 189. 357 Ibid, at 32 (para. 135), and; Article 56 of the EFTA Treaty. 358 On this point, see: Nikos Skoutaris, ‘Territorial Differentiation in EU Law: Can Scotland and Northern Ireland Remain in the EU and/or the Single Market’ (2017) 19 Cambridge Yearbook of European Legal Studies 287, 303. See: Protocol 40 on Svalbard of the Agreement on the European Economic Area [1994] OJ L1/208 and Case E-3/12 The Norwegian State (represented by the Ministry of Labour) v Stig Arne Jonsson EFTA Court (20 March 2013), 6 (para. 18). Available at: http://www.eftacourt.int/uploads/tx_nvcases/3_12_Judgment_EN.pdf (last accessed: 21 April 2017). 359 Protocol 40 of the European Economic Area Agreement (1994). Available at: http://www.efta.int/sites/default/files/documents/legal-texts/eea/the-eea- agreement/Protocols%20to%20the%20Agreement/protocol40.pdf (last accessed: 21 April 2017).

120 review of the devolution settlement between the UK central government and the devolved regions.360 However, the former UK Prime Minister had made it clear that the intention for the UK was to leave the Single Market and Customs

Union.361 Notwithstanding this, the Scottish government had sought to continue to stay in the Single Market, seeking a differentiated option for

Scotland within the UK. With respect to the differentiated application of EU law within the EU, Member States such as Cyprus, Denmark and Gibraltar are examples of how different parts of a unitary state or union can have varying relationships with the EU.362 Cyprus is divided into two parts and whilst Cyprus itself is a member of the EU, the EU’s acquis is suspended in the northern part of the island. Denmark is an EU Member State, but Greenland and the Faroe

Islands have a different relationship with the EU.363 Gibraltar is outside the customs union, but within the EU.

360 Scottish Government, ‘Scotland’s Place in Europe’ (2016), 1 (para. 4), 29 (para. 120) and 41 - 44 (paras. 172 - 189). Available at: http://www.gov.scot/Resource/0051/00512073.pdf (last accessed: 10 February 2017). 361 HM Government, ‘The government's negotiating objectives for exiting the EU: PM speech’ (17 January 2017). Available at: https://www.gov.uk/government/speeches/the-governments- negotiating-objectives-for-exiting-the-eu-pm-speech (last accessed: 17 February 2017). 362 Nikos Skoutaris, ‘From Britain and Ireland to Cyprus: Accommodating ‘Divided Islands’ in the EU Political and Legal Order’ (2016) European University Institute - Working Paper AEL 2016/02 1, 9 - 13; Jacques Hartmann, ‘The Faroe Islands: possible les6sons for Scotland in a new post- Brexit devolution settlement’ (2019) 44(1) European Law Review 110, 119 and 122 - 123; Nikos Skoutaris, ‘Blog - The future of the UK: A legal perspective’ (26 January 2017) On Secessions, Constitutions and EU law. Available at: http://www.skoutaris.eu/blog (last accessed: 06 February 2017), Nikos Skoutaris, ‘Territorial Differentiation in EU Law: Can Scotland and Northern Ireland Remain in the EU and/or the Single Market’ (2017) 19 Cambridge Yearbook of European Legal Studies 287 and; Scottish Government, ‘Scotland’s Place in Europe’ (2016), 26 (para. 108). Available at: http://www.gov.scot/Resource/0051/00512073.pdf (last accessed: 10 February 2017). 363 See Article 355(5) of the TFEU, which states: “This Treaty shall not apply to the Faroe Islands”.

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4.5 Reunification between Republic of Ireland and Northern

Ireland

A reunification between the Republic of Ireland and Northern Ireland is legally tenable.364 Following the UK’s decision to withdraw from the EU, in order to remain within the EU, it was explored whether Northern Ireland could reunify with the Republic of Ireland. The European Council acknowledged this is legally tenable and that a united Ireland would actually remain a part of the EU, notwithstanding the UK’s departure from the EU.365 This would result in the territorial expansion of the Republic of Ireland, an existing EU Member

State.366 Northern Ireland would first have to secede from the UK. A conditional right to secession is permitted in Northern Ireland. It may secede if the majority of the people of Northern Ireland agree to this in a referendum.367

In addition to a majority of people in Northern Ireland, a majority of people in the Republic of Ireland would also need to vote in favour of reunification in a simultaneous referendum on both sides of the territorial border, in order for

364 Belfast Telegraph, ‘Sinn Fein calls for Ireland reunification poll if UK votes to leave EU - do you agree?’ (12 March 2016). Available at: http://www.belfasttelegraph.co.uk/news/northern- ireland/sinn-fein-calls-for-ireland-reunification-poll-if-uk-votes-to-leave-eu-do-you-agree- 34532443.html (last accessed: 05 August 2016), and; Irish Government, ‘Brexit: Ireland’s Priorities’ (2017) 1, 6. Available at: http://www.merrionstreet.ie/MerrionStreet/en/EU- UK/Key_Irish_Documents/%20%20%20%20.html (last accessed: 24 May 2017). 364 Section 1(1) of the Northern Ireland Act 1998. 365 European Council, ‘Special meeting of the European Council (Art.50) held on 29 April 2017, Annex -Statements to the Minutes of the European Council’ 1, 4. Available at: http://data.consilium.europa.eu/doc/document/XT-20010-2017-INIT/en/pdf (last accessed: 21 August 2018). 366 Nikos Skoutaris, ‘Report on a Special Designated Status for Northern Ireland Post-Brexit - An Independent Opinion Commissioned by the European United Left / Nordic Green Left (GUE/NGL) Group of the European Parliament’ (2018) 1, 17. Available at: https://ueaeprints.uea.ac.uk/66781/1/NSkoutarisGUENGLReportSSRN.pdf (last accessed: 21 August 2018). 367 Section 1(1) of the Northern Ireland Act 1998. See: John McGarry, ‘Asymmetrical Autonomy in the United Kingdom’ in Marc Weller and Katherine Nobbs (eds.), Asymmetric Autonomy and the Settlement of Ethnic Conflicts (University of Pennsylvania Press 2010), 156.

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Northern Ireland to become a part of the Republic according to the

Belfast/Good Friday Agreement. Moreover, it is expressly provided for in the

Good Friday/Belfast Agreement, which refers to a right of self-determination and allows for a constitutional change on the status of Northern Ireland.368

Article 3(1) of the Irish Constitution does not enshrine a right of secession. It does not provide for such a right to any of the provinces/regions of the

Republic. It expresses the political desire for reunification of the whole island of Ireland, which is a very difficult political process.369 Crucially, a referendum may only be held if: “it appears likely to [the UK Secretary of State] that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.”370

It is, thus, a matter reserved to Westminster, which must ultimately give their consent to a referendum. Further to this, the consent of the UK government is required in order to put forward legislation giving effect to such a change.371 Of course, such a political aspiration can only happen at the expense of the secession of a UK constituent nation from its metropolitan state

It is of note the EU respects the Good Friday/Belfast Agreement 1998.372 In terms of how the EU might respond to such a reunification, as I explain in

368 Article 1 (paras i to ii) of the Belfast Agreement. Full text available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/136652/agreem ent.pdf (last accessed 10 August 2016). 369 Article 3(1) of the Irish Constitution. Full text available at: http://www.taoiseach.gov.ie/eng/Historical_Information/The_Constitution/Bunreacht_na_h%C3 %89ireann_October_2015_Edition.pdf (last accessed: 10 August 2016). 370 Schedule 1(2) of the Northern Ireland Act 1998 371 Ibid, section 1(2) 372 Joint Report from the negotiators of the EU and the UK Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the EU (08 December 2017) 1, 7 (para. 44.) Available at: https://ec.europa.eu/commission/sites/beta-political/files/joint_report.pdf (last accessed: 21 August 2018).

123 chapter five, below, in 1990, the, then, EC’s institutions integrated or embedded/absorbed East Germany, upon its accession to West Germany

(forming a reunited Germany), into the framework of the EEC without the need for formal accession proceedings, a revision/amendment of the EC Treaty or the consent of the other Member States. Thus, it can be seen the EU is prepared to take a flexible approach to issues of territorial reconfiguration and

EU membership. There is, however, a key difference between the case of

German Reunification and the potential reunification of the Republic of Ireland and Northern Ireland in that the acquis did not apply to East Germany before the reunification, whereas Northern Ireland has been/is still subject to EU law as part of the UK’s membership of the EU.373 The former Irish Prime Minister had called on the EU to treat Northern Ireland in the same way, so as to avoid

Northern Ireland having to make an application, following ‘Brexit’, under the normal accession process as a ‘third country’.374 Notwithstanding this, commentators have pointed to an existing EU law provision that was designed to regulate any potential reunification of Cyprus, which provides further evidence of the EU’s flexibility.375 According to Article 4 of Protocol No. 10 on

373 Nikos Skoutaris, ‘Territorial Differentiation in EU Law: Can Scotland and Northern Ireland Remain in the EU and/or the Single Market’ (2017) 19 Cambridge Yearbook of European Legal Studies 287, 298; Nikos Skoutaris, ‘On Brexit and secession(s)’, at 203, in Carlos Closa, Costanza Margiotta and Giuseppe Martinico (eds.) Between Democracy and Law: The Amorality of Secession (Routledge 2019 Kindle edition). 374 Financial Times, ‘Enda Kenny calls for united Ireland clause in Brexit deal’ (23 February 2017). Available at: https://www.ft.com/content/bb0c91fa-f9f6-11e6-9516-2d969e0d3b65 (last accessed: 11 April 2017). 375 John McGarry, ‘Blog - Reunifying Ireland: An EU law perspective’ (28 March 2017) On Secessions, Constitutions and EU law. Available at: http://www.skoutaris.eu/blog/?offset=1490813943071 (last accessed: 07 April 2017). See, also: Nikos Skoutaris, ‘Territorial Differentiation in EU Law: Can Scotland and Northern Ireland Remain in the EU and/or the Single Market’ (2017) 19 Cambridge Yearbook of European Legal Studies 287, 298.

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Cyprus, of the Act of Accession 2003 (concerning the accession of Cyprus, amongst other states):

“In the event of a settlement, the Council, acting unanimously on the

basis of a proposal from the Commission, shall decide on the

adaptations to the terms concerning the accession of Cyprus to the

European Union with regard to the Turkish Cypriot Community.”

This provision allows the EU (by way of unanimity in the Council), to alter the terms of Cyprus’ original accession to the EU (as outlined in the Act of

Accession 2003) and, therefore, accommodate any potential reunification of

Cyprus at a future date. Consequently, under Article 1(2) of Protocol No. 10, the suspension of the application of EU law in Northern Cyprus would cease.376

The European Council has, so far, made a political declaration on Irish unity and the continuity of EU membership. However, from a legal perspective, by way of an analogy, a similarly worded provision to Article 4 of Protocol No. 10 of the Act of Accession 2003 regulating any reunification between the Republic of Ireland and Northern Ireland could have been provided for in the Withdrawal

Agreement upon the UK’s withdrawal from the EU in order to assist the smooth transitioning of Northern Ireland back to the EU.377

376 On the terms of suspension, see Article 1(1) of Protocol No. 10 on Cyprus of the Act of Accession 2003. 377 Nikos Skoutaris, ‘On Brexit and secession(s)’, at 204, in Carlos Closa, Costanza Margiotta and Giuseppe Martinico (eds.) Between Democracy and Law: The Amorality of Secession (Routledge 2019 Kindle edition).

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4.6 Interim summary and concluding remarks

In chapter four, I examined the routes to EU membership in the context of secession. According to the prevailing view, a seceding entity must apply to join the EU according to the normal accession procedure. It is of note the routes to EU membership under Article 49 TEU and under Article 48 TEU would, both, require the unanimous consent of all Member States. The agreement in both cases, whether it be the conclusion of an Accession Treaty or on the proposed amendment to the Treaties, must also be ratified in accordance with a state’s own constitutional requirements. This makes both routes problematic and uncertain for any number of political reasons not concerned with the general interests of the EU.

Article 49 TEU is designed to deal with applications for membership, although the Treaties do not specify the procedure the EU should follow when responding to an accession by a new state born out of a process of secession.

Article 48 TEU is designed to deal with amendments to the Treaties and is, thus, far more general in nature. According to the ECJ: “the choice of the legal basis for a measure may not depend simply on an institution’s conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review”.378 Those objective factors include the aim and content of a measure/the action. Therefore, if the objective pursued by a treaty amendment would be the accession of a new Member State, the EU Treaties

378 Case C-45/86 Commission of the European Communities v Council of the European Communities [1987] ECR 1493, 1520 (para. 11).

126 must be interpreted in accordance with the ordinary meaning to be given to its terms. This in line with Article 31(1) of the Vienna Convention on the Law of the Treaties. It would therefore be difficult to justify the use of Article 48 TEU for such an aim/objective, when a specific provision already regulates the accession of new Member States (Article 49 TEU).379

From a formal legal standpoint: “…one cannot choose freely an article of the

EU Treaties to adopt an act or make a decision…”380 This would mean, for example, that: “the mere inconvenience of an accession procedure does not of itself transform Article 48 TEU into the correct legal basis…”.381 The ECJ has held that objective factors include the aim and content of the measure.382

Whilst this case refers to secondary EU law, by way of analogy, given that

Article 49 TEU is the only provision which specifically deals with accession of an EU state (the aim and content of the measure), it should be the default route over Article 48 TEU, which does not expressly address this issue.383 With respect to the possibility of amending the Treaties to accommodate a seceding entity, through a process of ‘internal enlargement’, Article 48 TEU would not deal with the accession of a new Member State, but rather the creation of a

379 Nikos Skoutaris, ‘On Brexit and secession(s)’, at 202, in Carlos Closa, Costanza Margiotta and Giuseppe Martinico (eds.) Between Democracy and Law: The Amorality of Secession (Routledge 2019 Kindle edition). 380 The Scottish Parliament, ‘Annex A - Written Evidence from Piris to European and External Relations Committee (Scotland’s position in the European Union)’ 2nd Meeting 2014 Session 4 (23 January 2014) 1, 28 - 29. Available at: http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Meeting%20Papers/ Public_papers_23_Jan_2014.pdf (last accessed: 18 May 2017). 381 Ibid, 24 (para. 36). 382 Case C-300 Commission of the European Communities v Council of the European Communities [1991] ECR I-2867, 2898 (para. 10). 383 Stephen Tierney and Katie Boyle, ‘An independent Scotland: the road to membership of the European Union’ (2014) ESRC Scottish Centre on Constitutional Change, Briefing Paper 1, 7, and; Christophe Hillion, ‘Scotland and the EU comment by Christophe Hillion’ (15 September 2014). Available at: http://verfassungsblog.de/scotland-eu-comment-christophe-hillion-2/ (last accessed: 09 August 2016).

127 new Member State through the disaggregation of an existing Member State.384

Moreover, if one accepts the applicability of international law to EU law, provisions about a specific subject matter should take precedence over general ones, according to the maxim: lex specialis derogat legi generali.

Thus, according to this principle, the power granted to the EU under Article 49

TEU would preclude the use of Article 48 TEU.385

It has been pointed out the EU needs to avoid creating a perception amongst aspirant states that they can circumvent EU constitutional law rules on membership.386 It has also been argued the principles of equal treatment, legal certainty and legitimate expectation dictate that Article 49 TEU would be the correct choice of legal basis in the case of a break-away region seeking to join the EU.387 One the one hand, the procedure for acquiring membership of the

EU should be uniformly applied to all states. It would, prima facie, be inconsistent for the EU to allow one state to commence accession proceedings under Article 49 TEU, but then allow another state to join the EU via an ‘internal enlargement’/amendment to the Treaties under Article 48 TEU. The EU must show parity with respect to how it approaches a new Member State and a

384 Bruno de Witte, ‘Scotland and the EU: Comment by Bruno de Witte’ (10 September 2014) Verfassungsblog – On Matters Constitutional. Available at: http://verfassungsblog.de/scotland- eu-comment-bruno-de-witte-2/ (last accessed: 09 August 2016). 385 The Scottish Parliament, ‘Annex A - Written Evidence from Professor Kenneth Armstrong’ to European and External Relations Committee (Scotland’s position in the European Union)’ 2nd Meeting 2014 Session 4 (23 January 2014), 17 (para. 9) and 19 (para.) 19). Available at: http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Meeting%20Papers/ Public_papers_23_Jan_2014.pdf (last accessed: 18 May 2017). 386 Christophe Hillion, ‘Scotland and the EU: comment by Christophe Hillion’ (15 September 2014). Available at: http://verfassungsblog.de/scotland-eu-comment-christophe-hillion-2/ (last accessed: 09 August 2016). 387 Phoebus Athanassiou and Stephanie Laulhe Shaelou, ‘EU Accession from Within? – An Introduction’ (2014) 33(1) Yearbook of European Law 1, 342.

128 seceded territory of an old Member State.388 However the counterargument must also be taken into consideration. Equality does not just mean equal treatment of the same or similar situations, but it also requires different treatment in relation to different/unequal situations. In the event of their independence, the Scottish government had argued that because Scotland has already been a member of the EU for a substantial period of time (since

1973), it should not have to re-apply for membership in the same way as an external candidate.389 For example, it has been highlighted that the European

Commission took account of Iceland’s EEA membership when considering its application for membership to join the EU and the criteria (chapters of the acquis communautaire) it was required to satisfy.390 However, this would depend on how close an applicant state is to the EU legal order and can demonstrate compliance with current EU standards and rules (‘the acquis’).

Access to the EU is quicker and easier the closer a Member State is to the EU.

The Scottish Government has actually made the argument that Article 49 TEU only regulates ‘conventional enlargement’ where a candidate country is applying to join from outside of the EU.391 In other words, it is implicit Article

388 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 245. 389 The Scottish Government, ‘Scotland’s Future – Your Guide to an independent Scotland’ (2013), 221. Available at: http://www.gov.scot/Resource/0043/00439021.pdf (last accessed: 26 April 2016), and; Sionaidh Douglas-Scott, ‘Scotland and the EU: Comment by Sionaidh Douglas- Scott’ (17 September 2014) Verfassungsblog – On Matters Constitutional. Available at: http://verfassungsblog.de/scotland-eu-eleventh-hour-thoughts-contested-subject-2/ (last accessed: 05 August 2016). 390 European Commission, ‘Communication from the Commission to the European Parliament and the Council - Commission Opinion on Iceland's application for membership of the European Union’ (2010) COM (2010) 62 1, 7 - 8. Available at: http://aei.pitt.edu/44523/1/Iceland_opinion.pdf (last accessed: 05 April 2017), and; Steve Peers, ‘Scotland, the EU and ‘indyref2’: the legal issues’ (2017) EU Law Analysis. Available at: http://eulawanalysis.blogspot.co.uk/2017/03/scotland-eu-and-indyref2-legal-issues.html (last accessed: 05 April 2017). 391 The Scottish Government, ‘Scotland’s Future – Your Guide to an independent Scotland’ (2013), 216 - 224. Available at: http://www.gov.scot/Resource/0043/00439021.pdf (last accessed: 07 August 2016).

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49 TEU relates, only, to the accession of countries that have never fallen within the EU legal order.392 As such, Article 49 TEU should not be the default route for Member States that have, previously, been a member of the EU. However, it is difficult to find support for this contention in light of Article 50(5) TEU, according to which Article 49 TEU is listed as the preferred route: “If a State which has withdrawn from the Union asks to re-join, its request shall be subject to the procedure referred to in Article 49.”

It has been proposed that for countries with strong ties to the EU or are substantially affected by EU decision-making, that there exists: “special duties in opening the door to membership” and that there should be an:

“…institutionalisation of a flexible deliberative community based on ex ante consultation and ex post justification” that would help facilitate that country’s entry into the EU.393 The existence of such an argument would not provide a guarantee394 and is not a convincing legal argument by itself395; it would not amount to a claim-right for a candidate country or place a political obligation on states to admit such a country.396 It has been pointed out, for example, that an independent Scotland would not automatically meet the accession criteria

392 Richard Hoyle, ‘Scottish Independence and EU Membership: Part II’ (16 September 2014). EJIL: Talk! Blog of the European Journal of International Law. Available at: http://www.ejiltalk.org/12126/ (last accessed: 14 July 2016). 393 Joseph Lacey & Rainer Bauböck, ‘Enlargement, association, accession - a normative account of membership in a union of states’ (2017) 39(5) Journal of European integration 515, 516. 394 Christophe Hillion, ‘Scotland and the EU: comment by Christophe Hillion’ (15 September 2014). Available at: http://verfassungsblog.de/scotland-eu-comment-christophe-hillion-2/ (last accessed: 09 August 2016). 395 Jean-Claude Piris, ‘Political and Legal Aspects of Recent Regional Secessionist Trends in some EU Member States (II), at 83 - 84, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017). 396 Joseph Lacey & Rainer Bauböck, ‘Enlargement, association, accession - a normative account of membership in a union of states’ (2017) 39(5) Journal of European integration 515, 523 - 524

130 and various economic criteria would have to be assessed separately, such as a viable market economy, ability to respond to the pressure of competition and market forces within the EU.397 Moreover, opt-outs negotiated by the current

UK government, upon joining the EU, such as an exemption from adoption of the Euro and participation in the Schengen area, would not automatically be applicable to an independent Scotland ipso facto.398 Such terms would have to be agreed to by all EU Member States. It has been pointed out that political necessity or expediency may outweigh a strict observance of, and preference for, legal formalism (‘decisionism’): “European leaders do not normally look to law to tell them what to do. They decide what they want to do politically and then find a legal means.”399 Some have also referred to a preference for Article

49 TEU as an: “unnecessary adherence to form over function”.400

Chapters three and four of this thesis examined the consequences of secession. Arguably, the Union has a moral and/or a legal duty to address those consequences. I discuss the legal basis for the existence of such a duty, why it should be extended to the EU and what such a duty might look like in the next chapter.

397 Pierre Schmitt, ‘Secession: Member States, Aspiring States and the European Union’ Policy Brief No. 22 – Leuven Centre for Global Governance Studies (July 2014), 8. 398 Jean-Claude Piris, ‘Political and Legal Aspects of Recent Regional Secessionist Trends in some EU Member States (II), at 85, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017). 399 Jeffrey and Ray Perman (eds.) Scotland’s Decision: 16 Questions to think about for the referendum on 18 September (The David Hume Institute 2014), 47. Available at: http://www.centreonconstitutionalchange.ac.uk/sites/default/files/papers/Scotland%27s%20D ecision%20final%20ebook.pdf (last accessed: 24 May 2017). 400 Christopher Connolly, ‘Independence in Europe: Secession, Sovereignty, and the European Union’ (2013) 24 Duke Journal of Comparative & International Law 51, 92.

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CHAPTER FIVE

A DUTY TO FACILITATE/NEGOTIATE EU MEMBERSHIP?

5.0 Chapter overview

As noted in the introductory chapter, this thesis focuses mainly on consensual secession. A duty to facilitate/negotiate EU membership would only apply to cases where a state has become independent through a consensual and democratic process. In cases of non-consensual secession, it would be virtually impossible for a seceding entity to be recognised as a state. An application for EU membership and the signing of an Accession Treaty401, including initiation of the ratification procedure may only occur once an applicant state has been recognised as a state. The governments of all EU

Member States must also agree to commence accession negotiations by way of a unanimous decision in the EU Council (on a mandate or framework for negotiations with the candidate country). However, the Union is permitted to negotiate with a third country prior to its accession to the EU. A seceding entity should negotiate its secession before becoming a Member State (or at least at the same time).

In chapter five, I clarify what is meant by negotiation/facilitation, explain why such a duty should exist and be extended to the EU, explore the arguments in

401 Technically speaking, Member States and the acceding state(s) would be the signatories to an Accession Treaty as opposed to the EU itself.

133 support of an implicit duty on the Union to facilitate/negotiate EU membership, in the absence of an explicit duty in the Treaties and, considering the political ramifications of secession, I consider the impact such a duty would have on the main stakeholders e.g. the EU as whole, the other Member States, the seceding state and the main (parent) state affected,. Based on an examination and discussion of these issues, I propose a treaty amendment in chapter seven of this thesis that specifically includes a duty on the Union to negotiate/facilitate a seceding entity’s EU membership.

5.1 What is meant by negotiation/facilitation and why should

such a duty exist and be extended to the EU?

Specifically, negotiation/facilitation could involve the EU initiating informal talks/discussions with a seceding entity regarding its accession to the EU; provide for a remedial or pro tempore solution in the case of secession, pending full membership of the EU, which could include an Association

Agreement, a commitment to expedite an application for EU membership, and; provide for transitional arrangements, allowing EU law to be phased-in over time, whilst a candidate country prepares to implement EU law.402 Informal

402 See, for example: Jordi Matas i Dalmases, Alfonso González Bondia, Jordi Iaria i Manzano and Laura Román i Martín, ‘The internal enlargement of the European Union: analysis of the legal and political consequences for the European Union in the case of a member state’s secession or dissolution’ (2011) Centre Maurits Coppieters (Publication No. 3) 1, 41; Steve Peers, ‘The Future of EU Treaty Amendments’ (2012) 31(1) Yearbook of European Law 1, at 60; House of Commons, ‘Graham Avery - HC 643 The foreign policy implications of and for a separate Scotland’ (Session 2012 – 2013). Available at: https://publications.parliament.uk/pa/cm201213/cmselect/cmfaff/writev/643/m05.htm (last accessed: 23 July 2018; Phoebus Athanassiou and Stephanie Laulhe Shaelou, ‘EU Accession from Within? – An Introduction’ (2014) 33 Yearbook of European Law 1, 351; The Scottish Parliament, ‘Annex A - Written Evidence from Sir David Edward to European and External Relations Committee (Scotland’s position in the European Union)’ 2nd Meeting 2014 Session 4

134 talks could focus on a detailed examination by the European Commission with the seceding entity on how well the country would be able to meet the criteria for accession (as set out in Article 49 TEU and the ‘Copenhagen criteria’).

Indeed, according to the Copenhagen criteria for accession:

“Membership requires that the candidate country has achieved

stability of institutions guaranteeing democracy, the rule of

law, human rights and respect for and, protection of minorities, the

existence of a functioning market economy as well as the capacity

to cope with competitive pressure and market forces within the

Union. Membership presupposes the candidate’s ability to take on

the obligations of membership including adherence to the aims of

political, economic and monetary union.”403

Thus, this would include determining how well the seceding entity would be able to comply with EU standards and rules, the continued application of EU legislation on its territory, demonstrate it has the consent of its citizens

(expressed in parliament or by way of a referendum) and other Member States,

(23 January 2014) 1, 12 - 14. Available at: http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Meeting%20Papers/ Public_papers_23_Jan_2014.pdf (last accessed: 18 May 2017); Daniel Kenealy and Stuart MacLennan, ‘Sincere Cooperation, Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland’s Future in the European Union?’ (2014) 20(5) European Law Journal 591, 598, and; Jean-Claude Piris, ‘Political and Legal Aspects of Recent Regional Secessionist Trends in some EU Member States (I), at 69, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017); David Edward, ‘EU law and the separation of States’ (2013) 36(5) Fordham International Law Journal 1, 17. 403 The ‘Copenhagen Criteria’: European Parliament, ‘Presidency Conclusions - Copenhagen European Council – 21 - 22 June 1993’. Available at: http://www.europarl.europa.eu/enlargement/ec/pdf/cop_en.pdf (last accessed: 16 February 2017).

135 the ability to take on the obligations of EU membership and secure, implement and enforce each of the 35 chapters (policy fields) of the EU law acquis. These informal talks/discussions could involve the seceding entity setting out its negotiating position, as well as the EU adopting a common position on the different issues to be addressed. They could also pave the way to the opening of formal negotiations or (pre-) conditions being set for the opening of such negotiations. Informal talks/negotiations would have the benefit of speeding- up formal negotiations in the future. The pace and duration of negotiations would, ultimately, depend on the extent to which the seceding entity (through its parent state’s membership) is aligned to the EU. For those seceded entities that have been a part of an EU Member State, and that have already been applying EU law on their territory, this would not be an insurmountable obstacle as they are already bound by the EU acquis.

Technically legally speaking, independence would not become effective on the date independence was declared by a seceding entity. For example, the referendum over independence in Scotland took place on 18 September 2014 and, had it returned a vote for independence, formal independence from the

UK would not have taken effect until 24 March 2016.404 Thus, secession is best understood as a “discursive process comprising different stages or moments, rather than a status, or a fixed point in time ”.405 This would,

404 The Scottish Government, ‘Scotland’s Future – Your Guide to an independent Scotland’ (2013), 459 - 460 (para. 262) and 550 (para. 537). Available at: http://www.gov.scot/Resource/0043/00439021.pdf (last accessed: 26 April 2016). 405 Joxerramon Bengoetxea, ‘Secession v forceful union: A provisional enquiry into the right to decide to secede and the obligation to belong’, at 33, in Carlos Closa, Costanza Margiotta and Giuseppe Martinico (eds.) Between Democracy and Law: The Amorality of Secession (Routledge 2019 Kindle edition).

136 therefore allow time for a smooth and orderly transition to independence at a national level, continuity in EU membership and for a temporal paradox/gap in the application of EU law to be avoided.

In an ideal scenario, informal negotiations would proceed smoothly, and an

Accession Treaty would be able to be signed on the same date that a seceding entity became independent. For example, in relation to Scotland’s bid for independence in 2014, it was argued Scotland could have negotiated its accession and left the signing of an Accession Treaty until the same day it formally became an independent state: “Scotland would be a non-Member

State for the duration of it takes to sign...two pieces of paper. The issue, therefore, is not legal but political.”406 Such an approach would facilitate a region’s simultaneous accession to the EU and avoid an interruption in its membership of the EU. This would be necessary in order to avoid the disruptive effects that could ensue if loss of membership were an automatic consequence of achieving independence.

For the Union to simultaneously agree an Accession Treaty with a seceding entity on the date it achieved its independence, prior negotiation and preparation would be necessary. It would take some time to conclude such an agreement. This is due to the accession criteria a candidate country is required to satisfy and because the final agreement would have to be ratified by Member States in accordance with their own constitutional requirements.

406 Joseph Weiler, ‘Scotland and the EU: a comment by Joseph Weiler’ (08 September 2014) Verfassungsblog – On Matters Constitutional. Available at: http://verfassungsblog.de/scotland- eu-comment-joseph-h-h-weiler-2/ (last accessed: 06 August 2016).

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At a national level, there would also need to be an agreement on an array of legal issues, between the parent and newly-emergent state, in order to provide for a smooth transition to independent statehood.407 Indeed, proto- constitutional acts in some states have been designed to provide for the legal transition to independence. These constitutional acts have included, for example: the Act Respecting the Future of Quebec (also known as ‘Bill 1’ or the ‘Sovereignty Bill’), the draft Scottish Independence Bill 2014 and

Catalonia’s Transition and Foundational Act 2017.408 However, if the accession process could not be concluded by the proposed date of a region’s independence, this may prove to be problematic. This would require a remedial and pro tempore solution, which might include an Association

Agreement, for example, pending full membership of the EU. However, it is beyond the scope of this thesis to examine such solutions here.

407 For example, with respect to the issues concerning Scotland’s proposed independence, see: Jean-Claude Piris, ‘Political and Legal Aspects of Recent Regional Secessionist Trends in some EU Member States (I), at 96 - 102, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017). See, further: Stephen Tierney, ‘Legal Issues Surrounding the Referendum on Independence for Scotland’ (2013) 9 European Constitutional Law Review 359, 369, noting the position of the Electoral Commission on Scotland’s proposed independence (Electoral Commission, ‘Referendum on Independence for Scotland: Advice of the Electoral Commission on the proposed referendum question’ (January, 2013) 1, 36 (para. 5.41): “In the event of a ‘Yes’ vote, there would be a range of issues to be resolved within the UK and internationally about the terms of independence…”. Available at: www.electoralcommission.org.uk/__data/assets/pdf_file/0007/153691/Referendum-on- independence-for-Scotland-our-advice-on-referendum-question.pdf (last accessed: 23 July 2018). 408 As noted in Pau Busquets, ‘Obstacles and passages to secession in liberal-democratic contexts. Lessons from Catalonia’ (March 2018) Political Theory Working Paper No. 20 (University of Pompeu Fabra) 1, 12. Available at: https://repositori.upf.edu/handle/10230/34424 (last accessed: 11 July 2018).

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5.2 The arguments in support of implying a duty on the Union

to facilitate/negotiate EU membership

Consensual secession would not create an automatic presumption of or entitlement to EU membership.409 However, there are a number of legal arguments in support of a duty to facilitate/negotiate EU membership, based on: respect for the democratic principle in Article 2 TEU, the duty of sincere or loyal cooperation in Article 4 TEU, the need to avoid an automatic and involuntary loss of EU citizenship (Article 20 TFEU) and on the existence of a procedure for negotiating a Member State’s withdrawal from the EU (Article 50

TEU).

I also draw below on the historic example of the German Reunification and the automatic absorption of East Germany into the EEC. This provides strong evidence of the willingness of the EEC’s political institutions to take a flexible approach and demonstrate constitutional pragmatism with respect to the territorial reconfiguration of its internal borders and EC membership.410 There are also examples, such as the change in sovereignty over the Saarland in

1957 which, was originally under French control but was subsequently annexed into/by the Federal Republic of Germany (West Germany) in 1957, without any changes to the, then, ECSC Treaty. France and West Germany

409 This is owing to the Copenhagen criteria for accession and the requirement in Article 49 TEU for an applicant country to apply to become a member of the EU. 410 See, for example: House of Commons, ‘Graham Avery - HC 643 The foreign policy implications of and for a separate Scotland’ (Session 2012 – 2013). Available at: https://publications.parliament.uk/pa/cm201213/cmselect/cmfaff/writev/643/m05.htm (last accessed: 23 July 2018), and; Sionaidh Douglas-Scott, ‘How Easily could an independent Scotland join the EU’ (2014) University of Oxford Legal Research Paper Series 1, 8; Sionaidh Douglas-Scott, ‘Scotland, Secession and the European Union’ (2019) Queen Mary University Legal Studies Research Paper No. 301/2019 1, 3.

139 had agreed that the original signing of the ECSC Treaty did not determine the status of the Saarland. Instead, it would be determined by a specific treaty on the issue.411 There have also been changes in the legal status of some of the territories within the EU, such as Greenland and St. Barthélemy, for example.

Greenland (which was a part of the Kingdom of Denmark) achieved political autonomy in 1979 (and, subsequently, withdrew from the EEC in 1985). The

Treaties had not provided for this eventuality (allowing a part of a Member

State to formally leave the EU), but a treaty negotiating this was created (the

Greenland Treaty was negotiated and concluded between the EU’s Member

States).412 Thereafter, Greenland was stipulated as an ‘Overseas Country and Territory’.413 In relation to St. Barthélemy, it ceased being a part of the

(French overseas region/department) Guadeloupe and became a French

Overseas Collectively in 2003. In accordance with Article 355(6) TFEU,

France requested that the status of this island be changed from an ‘Ultra-

Peripheral Region’ (Article 349 TFEU) to an ‘Overseas Country and Territory’

(regulated by the fourth part of TFEU). The European Council amended the

Treaties to reflect this change in legal status.414 However, the cases referred to above did not involve a Member State of the EEC/EU.

411 Traité instituant la CECA - Échange de lettres entre les Gouvernements de la RFA et de la France (Paris, 18 avril 1951) - “Exchange of Letters between the Government of the Federal Republic of Germany and the Government of the French Republic concerning the Saarland”. Available at: https://www.cvce.eu/content/publication/1999/1/1/685dee87-1c63-403f-aef5- 5086dfbf71a2/publishable_fr.pdf (last accessed: 31 January 2018). 412 The Greenland Treaty (1985). Available at: http://web.archive.org/web/20160304044627/http://naalakkersuisut.gl/~/media/Nanoq/Files/Att ached%20Files/Bruxelles/EU%20and%20Greenland/The%20European%20Union%20and%2 0Greenland/Greenland%20Treaty%20eng.pdf (last accessed: 21 April 2017). 413 See Annex II to the Treaties. 414 European Council, ‘European Council Decision of 29 October 2010 amending the status with regard to the European Union of the island of Saint-Barthélemy’, see Articles 1 and 2. Available at: https://publications.europa.eu/en/publication-detail/-/publication/df1a7dd2-c632- 4d3a-adc3-37bc1e86dc4e/language-en (last accessed: 23 February 2018).

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5.2.1 Respect for democracy in Article 2 TEU

The EU’s respect for and promotion of democracy: “…is a connecting thread found in the criteria for entry, in its internal functioning, foreign policy and the very nature of the European Union.”415 Providing for a framework within which the EU could negotiate a seceding entity‘s‘ accession to the EU could enhance democacy in the EU.416 According to Article 21 TEU, it is incumbent on the

EU to advance democracy in its external relations which would encompass its dealings with third countries and a purported new state.417 It has been noted democracy is: “…commonly based on the principle of equality among people entitled to political self-determination”.418 It is argued the EU should respect the outcome of a democratic process in the territory of a Member State and, therefore, the right of a majority to determine their political future and remain a part of the EU.419 This is based on the theory of democratic secession which argues that a group within a polity is entitled to a right to secession, as long as

415 Jordi Matas i Dalmases, Alfonso González Bondia, Jordi Iaria i Manzano and Laura Román i Martín, ‘The internal enlargement of the European Union: analysis of the legal and political consequences for the European Union in the case of a member state’s secession or dissolution’ (2011) Centre Maurits Coppieters (Publication No. 3), 25. 416 Kalypso Nicolaidis, ‘Scotland and the EU: Comment by Kalypso Nicolaidis (9 September 2014) Verfassungsblog – On Matters Constitutional. Available at: http://verfassungsblog.de/scotland-eu-comment-kalypso-nicolaidis-2/ (last accessed: 05 August 2016), and; Thomas Patrick, ‘The Zeitgeist of secession amidst the march towards unification: Scotland, Catalonia and the future of the European Union’ (2016) 39 Boston College International Law Review 195, 223 - 225. 417 Dimitry Kochenov and Martijn van den Brink, ‘Secessions from EU Member States: The Imperative of Union’s Neutrality’ (2016) Law School Research Paper Series: Europa Working Paper No. 2016/04 1, 12. 418 Carrera, Sergio, Elspeth Guild and Nicholas Hernanz, ‘The triangular relationship between fundamental rights, democracy and the rule of law in the EU: towards an EU Copenhagen mechanism’ (2013) Centre for European Policy Studies 1, 26 - 27. 419 See, for example: Jordi Matas i Dalmases, Alfonso González Bondia, Jordi Iaria i Manzano and Laura Román i Martín, ‘The internal enlargement of the European Union: analysis of the legal and political consequences for the European Union in the case of a member state’s secession or dissolution’ (2011) Centre Maurits Coppieters (Publication No. 3), 42 – 45, and; Sionaidh Douglas-Scott, ‘How Easily could an independent Scotland join the EU’ (2014) University of Oxford Legal Research Paper Series 1, 22; Sionaidh Douglas-Scott, ‘How Easily could an independent Scotland join the EU’ (2014) University of Oxford Legal Research Paper Series 1, 22.

141 it is grounded in the democratic majority and a democratic proces, such as a referendum.420 Some authors have gone as far as to say that if Member States did not respect a unilateral secession, if acheved via democratic means, the

European Commission could start infringement proceedings against a Member

State for a failure to fulfill an obligation under the Treaties to respect democratic decisions and the right of EU citizens to determine their own political future.421

Notwithstanding the EU (law or Treaties)’s deference to and respect for national constitutional arrangements/identities/procedures/requirements, one author is astute to point out that allowing a seceding entity to automatically accede to the EU, in the event of a unilateral secession, on the basis that it would be respecting a democratic decision or process, is short-sighted. It is argued there is nothing in EU jurisprudence that states there is:

“…an obligation to those outside of the demos to accept or assume

the consequences of a decision taken within the demos. In order to

respect decisions taken within a democratic polity, outsiders to that

polity must recognise those decisions as legitimate and authoritative

within the demos in question…But outside recognition of the

legitimacy and authority of such decisions within the demos does

420 Carlos Closa, ‘A critique of the theory of democratic secession’, at 50, in Carlos Closa, Costanza Margiotta and Giuseppe Martinico (eds.) Between Democracy and Law: The Amorality of Secession (Routledge 2019 Kindle edition). 421 See footnote 31 in Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240.

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not mean that that demos can project the effects of its decisions,

however democratic, on to third parties.”422

Respecting the outcome of a democratic process is different to accepting the effects of secession, which would arise from a request for automatic accession.423 The single demos of one region must not be conflated with the plurality of demoi in the EU.424 If one were to accept this argument, respect for democracy, alone, does not provide an adequate foundation to argue there exists a legal obligation on the EU to accept the externalities of secession, even if a result of a democratic process. To do so would promote a “shallow conception of democracy” that does not take into account other values, such as the rule of law, which a modern democracy encompasses.425 Indeed, according to the European Commission: “The rule of law is the backbone of any modern constitutional democracy” and “…respect for the rule of law is intrinsically linked to respect for democracy and for fundamental rights: there can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa.”426 Similar sentiments were also expressed by the Venice Commission for the Council of Europe, according to which the rule of law is: “a fundamental and common European standard to guide and constrain the exercise of democratic powers" and is an “inherent part of any

422 Ibid, 255 and, see also: Carlos Closa, ‘Changing EU internal borders through democratic means’ (2017) 39(5) Journal of European Integration 515, 523. 423 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 255. 424 Ibid, 258. 425 Ibid, 249 - 250 and, see also: Carlos Closa, ‘Changing EU internal borders through democratic means’ (2017) 39(5) Journal of European Integration 515, 521 - 522. 426 European Commission, ‘Communication from The Commission to the European Parliament and The Council - A new EU Framework to strengthen the Rule of Law’ COM (2014) 158 final/2, 1, 4. Available at: http://ec.europa.eu/transparency/regdoc/rep/1/2014/EN/1-2014-158-EN-F1- 1.Pdf (last accessed: 03 December 2019).

143 democratic society”.427 In the context of secession at a national level, in

Reference on the secession of Quebec, the Supreme Court of Canada sought to reconcile the principle of legality, and the rule of law, with the democratic principle. The court concluded that respect for the rule of law precludes unilateral secession:

“The democratic vote, by however strong a majority, would have no

legal effect on its own and could not push aside the principles of

federalism and the rule of law, the rights of individuals and

minorities, or the operation of democracy….”428

5.2.2 Respect for sincere or loyal cooperation in Article 4(3) TEU

Article 4(3) TEU imposes a positive and negative obligation. On the one hand, the EU and Member States must work together, help facilitate and/or take certain measures to ensure the fulfilment of tasks/obligations which flow from the EU Treaties, or from acts of the Union’s institutions. On the other hand,

Member States must avoid compromising action which could jeopardise the attainment of such objectives. Thus, there is a ‘cooperative’ side to the loyalty principle, as well as a ‘confrontational or conflict-resolving’ aspect.429

Primarily, this duty applies to the European Commission, although it also represents a shared agreement between Member States, between the EU’s

427 The European Commission for Democracy through Law (Venice Commission), ‘Report on the Rule of Law’ (04 April 2011) Adopted by the Venice Commission at its 86th plenary session CDL-AD (2011) 003 rev 1, 14. Available at: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2011)003rev-e (last accessed: 25 September 2016). 428 Ibid, at para. 151. 429 Marcus Klamert, The Principle of Loyalty in EU Law (Oxford University Press 2014), 14.

144 institutions and Member States and between the institutions themselves430, as confirmed by the ECJ.431 It requires mutual sincere cooperation432, based on a requirement for solidarity433, and imposes a duty of good faith on those to which the provision applies.434 Article 4(3) is said to require “…a special ethos:

Member States are bound to adopt a certain attitude towards the other actors… Member States must have due regard to the Union system as a whole.”435

Member States have a general obligation to guarantee the application and effectiveness of Community law.436 This principle operates in light of and with reference to the aims/objectives of the Treaties.437 The ECJ has made it clear the duty of sincere or loyal cooperation extends to all areas of the EU’s

430 Ibid, 11. 431 Case C-234/89 Case C-234/89 Stergios Delimitis v Henninger Bräu AG [1991] ECR I-935, 994 (para. 53); Joined Cases C-213/88 and C-39/89 Grand Duchy of Luxemburg v European Parliament [1991] ECR I-5643, 5644 (para. 2); Joined Cases 358/85 and 51/86 French Republic v European Parliament [1988] ECR 4821, 4855 - 4856 (paras. 34 - 35); Case C-275/00 European Community, represented by the Commission of the European Communities v First NV and Franex NV [2002] ECR I-10943, 10978 - 10979 (para. 49); Opinion of Advocate General Poiares Maduro, at para. 32; Case C-344/01 Germany v Commission [2004] ECR I-2081, at para. 79. 432 Article 13(2) TEU. 433 Geert De Baere, Constitutional Principles of EU External Relations (Oxford University Press 2008), at 253, and; Christophe Hillion, ‘Mixity and Coherence in EU External Relations: The significance of the duty of sincere cooperation’ CLEER Working Papers 2 (2009) 1, 8. 434 Marcus Klamert, The Principle of Loyalty in EU Law (Oxford University Press 2014), 42; See: C-531/07 Fachverband der Buch- und Medienwirtschaft v LIBRO Handelsgesellschaft mbH [2009] ECR I-3717, per Advocate General Trstenjack, at para. 125. 435 Editorial comments: ‘Union Membership in times of crisis’ Common Market Law Review 51 (2014) 1, 5. 436 Case C-66/8 Commission of the European Communities v Greece [1989] ECR 2965, at paras. 23 - 25. 437 Case C-459/03 Commission v Ireland [2006] ECR I-4635, at para. 174, and; Case C-246/07 Commission v Sweden [2010] ECR I-3317, at para. 69.

145 relationship with its Member States.438 In theory, the ECJ has held the principle can be triggered whenever an EU law obligation exists.439

In the context of secession, under Article 17 TEU, the European Commission has a duty to promote the EU’s general interests and oversee the application of Union law. Read together with Article 4(3) TEU, it can be argued the

Commission has a duty to safeguard the integrity of the single market in order to avoid the disruptive effects that could arise from an automatic loss of EU membership.440 The CJEU is more likely to interpret general principles of EU law more broadly or expansively in the context of the internal market or free movement provisions.441 The effect of an automatic loss of EU membership has been described as tantamount to expulsion.442 It would create a gap in

438 Sionaidh Douglas-Scott, ‘How Easily could an independent Scotland join the EU’ (2014) University of Oxford Legal Research Paper Series 1, 12. 439 Case C-340/89 Irène Vlassopoulou v Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg [1991] ECR I-2357, at para. 14; Case C-374/89 European Commission v Kingdom of Belgium [1991] ECR I-367, at para. 13, and; Case C- 470/03 A.G.M.-COS.MET Srl v Suomen valtio and Tarmo Lehtinen [2005] ECR I-2749, Opinion of Advocate General Kokott, 2784 (para. 110). 440 Daniel Kenealy and Stuart MacLennan, 'Sincere Cooperation, Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland's Future in the European Union?' (2014) 20(5) European Law Journal 1, 8; Sionaidh Douglas-Scott, ‘How Easily could an independent Scotland join the EU’ (2014) University of Oxford Legal Research Paper Series 1, 12 - 13; The Scottish Parliament, ‘Annex A - Written Evidence from Jean-Claude Piris and Sir David Edward to European and External Relations Committee (Scotland’s position in the European Union)’ 2nd Meeting 2014 Session 4 (23 January 2014) 1, 28 - 29 (Jean-Claude Piris) and 12 - 14 (Sir David Edward). Available at: http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Meeting%20Papers/ Public_papers_23_Jan_2014.pdf (last accessed: 18 May 2017); Merijn Chamon and Guillaume Van der Loo, ‘The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and Fragmentation versus Widening and Deepening?’ (2014) 20(5) European Law Journal 613, 619; and; Klaus-Jurgen Nagel and Stephan Rixen, Catalonia in Spain and Europe: Is there a way to independence? (1st edn., Nomos Verlagsgesellschaft 2015), 90 – 91; Sionaidh Douglas- Scott, ‘Scotland, Secession and the European Union’ (2019) Queen Mary University Legal Studies Research Paper No. 301/2019 1, 4. 441 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 197 and 200 (Kindle Edition). 442 See: Daniel Kenealy and Stuart MacLennan, ‘Sincere Cooperation, Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland’s Future in the European Union?’ (2014) 20(5) European Law Journal 591, 599. There is of course no right of expulsion in the EU, only the possibility of a suspension or temporary withdrawal of certain rights of membership deriving from the Treaties, such as voting rights in the Council (Article 7 TEU).

146 legal protection for individual EU citizens, as well as companies/businesses in the internal market.

However, whilst the principle applies to EU Member States, it does not apply to seceded entities.443 Nontheless, the application of this principle may still be expected of the EU in good faith.444 With regard to the nature of such an obligation, and what it may entail, it is noted the strength of a feeling of obligation can vary between:

“…anything from strict compliance with obligations under EU law to

a mere non-committal goodwill ‘to do what one can’ and employ no

more than one’s best endeavours; the concept may also be

construed subjectively (referring to intention) or objectively

(requiring specific measures aimed at specific results) and be

defined primarily either in terms of omissions or, alternatively, as a

commitment to active support and cooperation”.445

443 Carlos Closa ‘Scotland and the EU: Comment by Carlos Closa’ (12 September 2014) Verfassungsblog – On Matters Constitutional. Available at: http://verfassungsblog.de/scotland- eu-comment-carlos-closa/ (last accessed: 05 August 2016). 444 Ibid. 445 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 169 – 170 (Kindle Edition).

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5.2.3 The need to avoid an automatic and involuntary loss of EU

citizenship

It has been suggested an automatic and involuntary loss of EU citizenship, as a consequence of secession, would breach the democratic principle in Article

2 TEU.446 EU citizenship is treated as a fundamental concept by the ECJ.447

Loss of EU citizenship could entail a loss of a number of rights in relation to, both, EU nationals residing in but also outside of the seceding region/territory.448 The EU Treaties establish EU citizenship449 and enumerate the rights conferred on EU citizens.450 They are, however, silent on the loss or termination of EU citizenship.451

446 Carlos Closa, ‘Troubled Membership: Dealing with secession from a member state and withdrawal from the EU’ (2014) Robert Schuman Centre for Advanced Studies Research Paper No. 91 1, 19 - 23; Jordi Matas i Dalmases, Alfonso González Bondia, Jordi Iaria i Manzano and Laura Román i Martín, ‘The internal enlargement of the European Union: analysis of the legal and political consequences for the European Union in the case of a member state’s secession or dissolution’ (2011) Centre Maurits Coppieters (Publication No. 3), 35; Stephen Tierney, ‘Legal Issues Surrounding the Referendum on Independence for Scotland’ (2013) 9 European Constitutional Law Review 359, 384, and; Phoebus Athanassiou and Stephanie Laulhe Shaelou, ‘EU Accession from Within? - An Introduction’ (2014) 33 Yearbook of European Law 1, 351 – 352; Sionaidh Douglas-Scott, ‘Scotland, Secession and the European Union’ (2019) Queen Mary University Legal Studies Research Paper No. 301/2019 1, 8. 447 Case C-184/99 Rudy Grzelczyk v Centre public d’aide sociale d’Ottingies-Louvain-la-Neuve [2001] ECR I-6193, 6242 (para. 31). 448 In the context of the UK’s withdrawal from the EU, see: House of Lords, ‘European Union Committee Brexit: acquired rights’ (14 December 2016) 10th Report of Session 2016-17 – HL Paper 82, at paras. 24 - 33 (see, in particular, para. 31). Available at: https://www.publications.parliament.uk/pa/ld201617/ldselect/ldeucom/82/8206.htm#_idTextA nchor020 (last accessed: 27 March 2017). 449 Article 20(1) TFEU and Article 9 TEU (which are identical in their wording). 450 Article 20(2) TFEU. 451 Clemens Rieder, ‘The withdrawal clause of the Lisbon Treaty in the light of EU citizenship: between disintegration and integration’ (2013) 37 Fordham International Law Journal 147, 169 - 170.

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By virtue of being a national of a Member State, an individual would hold

European citizenship.452 Conversely, if an individual lost their status as a national of a Member State, they would also lose their status as a citizen of the

EU. Thus, in the Rottmann case, it was noted national and EU citizenship are:

“inextricably linked and independent”.453 Member States are solely responsible for deciding who shall be granted national citizenship454, including the application rationae personae of the concept of a ‘national’. This has been confirmed in the case-law of the ECJ (mutual recognition applies to Member

State citizenship).455 This was also agreed by Member States in the Maastricht

Treaty, which introduced the notion of EU citizenship.456

However, exceptionally, the ECJ has deemed it permissible to rule on the grant of national citizenship. The ECJ in Rottmann ruled in favour of preserving EU citizenship, as the loss of nationality would have rendered the subject stateless. The individual in this case had been granted a naturalisation order

452 This is also confirmed in Article 2(1) of the Citizens Rights Directive. See Directive 2004/58/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Available at: http://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:32004L0038R(01)&from=EN (last accessed: 10 March 2017). 453 Case C-135/08 Janko Rottman v Freistaat Bayern [2010] ECR I-01449, Opinion of Advocate General Poiares Maduro, at para. 23. 454 Centre for European Policy Studies, Guidelines involuntary loss of European citizenship (2015). Available at: http://www.ilecproject.eu/sites/default/files/GUIDELINES%20INVOLUNTARY%20LOSS%20O F%20EUROPEAN%20CITIZENSHIP%20.pdf (last accessed: 26 April 2016). 455 Case C-369/90 Mario Vicente Micheletti and others v Delegación del Gobierno en Cantabria [1992] ECR I-4239, at 4262 (para. 10); Case C-179/98 Mesbah [1999] ECR I-7955, at para. 29; Case C-192/99 Kaur [2001] ECR I-1237, at para. 19; Case C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department [2004] ECR I-9925, at 9935 (para. 38); Case C-135/08 Janko Rottman v Freistaat Bayern [2010] ECR I-01449, Opinion of Advocate General Poiares Maduro, at paras. 39 - 41 and 55, and; Case C-434/09 Shirley McCarthy v Secretary of State for the Home Secretary for the Home Department [2011] ECR I-3375, at para. 57. 456 Declaration No. 2 annexed to the Treaty of Maastricht (1992) on nationality of a Member State. It is important to note that declarations are not legally binding.

149 in order to obtain German citizenship (in replace of Austrian citizenship) but had sought this on the basis of deception in order to avoid being apprehended for an offence of fraud in his home country. When faced with the decision of whether to revoke his German citizenship, the German Constitutional Court referred the matter, by way of a preliminary reference, to the ECJ, which ruled in favour of preserving his German citizenship. so that he would not lose his

EU citizenship. This case highlights the ECJ is willing to protect an individual’s citizenship and may serve as evidence to show loss of EU citizenship may not be automatic.457

However, any loss of EU citizenship is not automatically generative of a claim to continued EU membership for a seceding entity.458 The retention of EU citizenship would, ultimately, depend on the policy of the parent (continuator) state. In any event, EU membership entails certain rights and obligations that could never derive automatically from EU citizenship, such as, contributions to the budget, for example.459 According to the European Commission: “the solution would have to be found and negotiated within the international legal order”.460 The Union’s political institutions are reluctant to interfere with the

457 Sionaidh Douglas-Scott, ‘Scotland, Secession and the European Union’ (2019) Queen Mary University Legal Studies Research Paper No. 301/2019 1, 6 – 7. 458 Daniel Kenealy and Stuart MacLennan, ‘Sincere Cooperation, Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland’s Future in the European Union?’ (2014) 20(5) European Law Journal 591, 611; Sionaidh Douglas-Scott, ‘How Easily could an independent Scotland join the EU’ (2014) University of Oxford Legal Research Paper Series 1, 19; Sionaidh Douglas-Scott, ‘Scotland, Secession and the European Union’ (2019) Queen Mary University Legal Studies Research Paper No. 301/2019 1, 8; and; Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 258. 459 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 257. 460 European Parliament, ‘Parliamentary Questions - Answer given by Mr Barroso on behalf of the Commission’ (28 August 2012). Available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?language=EN&reference=E-2012- 007453 (last accessed: 07 August 2016).

150 constitutional arrangements of its Member States. There are also marked differences between the laws of individual Member States. States have chosen different sorts of criteria to establish citizenship such as residence, domicile or ethnic origin.461 Articles 7 and 18 of the European Convention on

Nationality lists instances when there would be a loss of nationality and deals with cases of the emergence of a new state and the criteria to be taken into account. Articles 4 and 5 deal with cases of arbitrary deprivation of nationality, although not all Member States have signed and/or ratified this Convention.

At present, it has only been ratified by 21 out of 27 EU Member States.462 With respect to the national law of Spain, for example, according to Article 11 of the

Spanish Constitution: “Spanish nationality is acquired, preserved, and lost in accordance with provisions established by law”. In the event Catalonia had seceded from Spain, citizens of the seceding entity would not have automatically lost their status as nationals of Spain (and, consequently, EU citizenship) unless a declaration was made to retain Spanish citizenship within

3 years of acquiring a new nationality.463

461 Andreas Zimmerman, ‘Secession and the Law of State succession’ in Marcelo Cohen, Secession: International Law Perspectives (Cambridge University Press 2006), 226 - 227, and; Centre for European Policy Studies, Guidelines involuntary loss of European citizenship (2015). Available at: http://www.ilecproject.eu/sites/default/files/GUIDELINES%20INVOLUNTARY%20LOSS%20O F%20EUROPEAN%20CITIZENSHIP%20.pdf (last accessed: 26 April 2016). 462 Council of Europe, ‘Chart of signatures and ratifications of Treaty 166 – European Convention on Nationality’. Available at: http://www.coe.int/en/web/conventions/full-list/- /conventions/treaty/166/signatures (last accessed: 07 June 2020). 463 See Article 25 of The Spanish Civil Code.

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5.2.4 The existence of a procedure for negotiating a Member

State’s withdrawal from the EU in Article 50 TEU

According to Article 50(2) TEU, following the submission by a Member State of its notification of withdrawal to the European Council, the European

Commission shall negotiate and conclude a withdrawal agreement with the withdrawing state. Moreover, in relation to the EU’s guidelines on negotiations on the UK’s withdrawal from the EU, the Council declared the need for transitional arrangements in the case of withdrawal.464 Sections 2, 3 and 4 of the European Union (Withdrawal) Act 2018 provide for the continuance of the full body of EU law in the UK after Brexit takes place. This constitutional statute465 has been likened to ‘continuance clauses’ found in national constitutions that address secession and the legal vacuums that arise in the transition between the existing and new legal order/regime.466 With respect to

Article 50 TEU, as a matter of legal principle, the negotiation process can only be instigated by a Member State and not a seceding entity. However, as both

464 The principles underpinning the arrangements for the transition period are set out in the European Council guidelines of 29 April 2017 and 15 December 2017, which were developed in the Council negotiating directives of 29 January 2018. See: ‘Negotiating documents on Article 50 negotiations with the United Kingdom’. Available at: https://ec.europa.eu/commission/brexit-negotiations/negotiating-documents-article-50- negotiations-united-kingdom_en (last accessed: 17 October 2019). 465 There is a legal distinction between ‘ordinary’ and ‘constitutional’ statutes. This was recognised by the UK High Court in the judgment of Lord Justice Laws in the seminal case of Thoburn v Sunderland City Council [2002] EWHC 195 (Admin). At para. 62, LJ Laws characterised what is meant by a ‘constitutional statute’: “In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” LJ Laws then listed examples of such statutes, including the Magna Carta, the Bill of Rights 1689, the Act of Union, the Human Rights Act 1998, the Scotland Act 1998 and the European Communities Act 1972. 466 Nikos Skoutaris, ‘On Brexit and secession(s)’, at 197 - 198, in Carlos Closa, Costanza Margiotta and Giuseppe Martinico (eds.) Between Democracy and Law: The Amorality of Secession (Routledge 2019 Kindle edition).

152 withdrawal and secession involve a loss of EU membership, it has been argued the EU Treaties could not have intended that there must be a negotiation in the case of withdrawal from the EU, but none in relation to secession.467

5.3 The impact such a duty would have on the main

stakeholders

An explicit duty in the Treaties placed on the Union to negotiate/facilitate a seceding entity’s accession to the EU could have an impact on the EU as a whole, other Member States, the seceding state, and also the main (parent) state, considering the political ramifications of secession. Broadly speaking, such a duty could have an important and significant effect on the EU’s absorption capacity and its ability to accommodate new Member States, alongside the continuing goal of European integration. It is also important to consider the associated concepts of enlargement fatigue and enlargement reticence. Enlargement fatigue is described as: “…post-accession reticence within the EU towards further widening in favour of a greater focus on deepening integration across Member States”. However, enlargement fatigue is now arguably less relevant (following the ‘Big Bang’ enlargement of the EU in 2004, in which the EU took on 10 new Member States) as any future

467 The Scottish Parliament, ‘Annex A - Written Evidence from Sir David Edward to European and External Relations Committee (Scotland’s position in the European Union)’ 2nd Meeting 2014 Session 4 (23 January 2014) 1, 13 - 14. Available at: http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Meeting%20Papers/ Public_papers_23_Jan_2014.pdf (last accessed: 18 May 2017); Sionaidh Douglas-Scott, ‘Scotland, Secession and the European Union’ (2019) Queen Mary University Legal Studies Research Paper No. 301/2019 1, 4 - 5.

153 enlargement is likely to take place on a much smaller scale. It is important to distinguish this from enlargement reticence. This refers to a reluctance towards any future enlargement(s) of the EU as opposed to ‘fatigue’ caused by past enlargement(s).

The accession of a new Member State could be at odds with a policy which may not recommend further enlargement of the EU. For example, the former president of the European Commission, Jean-Claude Juncker, stated in 2014 that apart from ongoing negotiations with the Western Balkans, there would be no further enlargement of the EU over the next five years.468 Furthermore, in the ‘State of the Union’ address in 2017 the, then, President of the European

Commission re-affirmed the future of the Western Balkans countries in the EU:

"If we want more stability in our neighbourhood, then we must also

maintain a credible enlargement perspective for the Western

Balkans. It is clear that there will be no further enlargement during

the mandate of this Commission and this Parliament. No candidate

is ready. But thereafter the European Union will be greater than 27

468 European Parliament, ‘Briefing - Setting EU priorities, 2014 - 19 The ten points of Jean- Claude Juncker's political guidelines’ (October 2014)1, at 11. Available at: https://www.europarl.europa.eu/EPRS/EPRS-Briefing-538963-Setting-EU-Priorities-2014-19- FINAL.pdf (last accessed: 14 June 2020).

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in number. Accession candidates must give the rule of law, justice

and fundamental rights utmost priority in the negotiations."469

However, it is recognised the Union could become larger than 27 Member

States by 2025, as accession negotiations have already started or are well underway with a number of candidate countries: Albania, the Republic of North

Macedonia, Montenegro, Serbia and Turkey.470

With respect to EU’s Member States, the accession of a seceding entity and reduction in the size of an existing Member State’s population would mean the

EU’s institutions would have to adapt their composition and decision-making processes. This would include, the addition of a new member of the European

Council471, the European Commission472, the Council473 and a redistribution of seats in the European Parliament, which takes into account the size of the population of Member States (based on a system of degressive proportionality), as well as the need for a minimum level of representation for

469 European Commission, ‘PRESIDENT JEAN-CLAUDE JUNCKER'S State of the Union Address 2017’ (13 September 2017). Available at: ttps://ec.europa.eu/commission/presscorner/detail/en/SPEECH_17_3165 (last accessed: 14 June 2020). 470 European Commission, Communication from the Commission to the European Parliament, The Council, The European Economic and Social Committee and The Committee of the Regions: A credible enlargement perspective for and enhanced EU engagement with the Western Balkans (2018) COM(2018) 65 final 1, at 2. Available at: https://ec.europa.eu/commission/sites/beta-political/files/communication-credible-enlargement- perspective-western-balkans_en.pdf (last accessed: 14 June 2020). 471 Article 15(2) TEU. 472 Article 17(5) TEU. 473 Article 16(2) TEU.

155 smaller states474. Such a redistribution or adjustment, prima facie, would only involve a mechanical adjustment. However, the significance of such adjustments must not be downplayed, as they could affect the relative distribution of power amongst states/coalition of states, such as the balance of power of national groups in the European Parliament, and the EU’s internal differentiation as to the adoption of policies.

Such a duty could also be at odds with Member States that do not wish to encourage or spur on further secessionism. There may even be Member

States that do not face secessionist demands on their own territory, but do not want to appear to support secessionism, so as not to jeopardise international relations with states that might be anti-secessionist. During negotiations, prior to a county’s formal accession to the EU, a seceding entity would be reliant on the metropolitan state negotiating with the EU on its behalf. This is, however, unlikely if the parent state is opposed to the secession of the respective region/territory. In cases of non-consensual secession, recognition of the nascent state from EU Member States is almost legally impossible and its accession to the EU would therefore be less than improbable. There is also the potential effect of such a duty on the seceding state itself. For example, a region of a metropolitan state may wish to secede from an EU Member State, but might not seek membership of the EU.475 In cases of consensual secession, this could potentially make it harder for a (purported) state to

474 Article 14(2) TEU. 475 For instance, the Cymru Sovereign, a political party in Wales seeks its independence from the UK (a former EU Member State), but does not seek EU membership. See: Cymru Sovereign, Manifesto – ‘A ten point summary of the Cymru Sovereign manifesto’ – see point no. 2. Available at: http://www.cymrusovereign.cymru/manifesto/ (last accessed: 31 May 2019).

156 achieve state recognition. Whilst such a case of secession would have been borne out of a consensual and democratic process, it may be seen by other

Member State to be antithetical to the EU’s continuing (and ultimate) goal of

European integration. In such a case, a duty to negotiate the EU accession of a State that has become independent through such a process could go against the principle of sincere or loyal cooperation in Article 4(3) TEU, according to which Member States must refrain from any measure which could jeopardise the attainment of the Union's objectives. The idea of voluntary membership of the EU must also be respected. Thus, the accession of a Member State to the

EU must be approved at a national level by either a democratically-elected parliament or by way of a referendum. At the other end of the spectrum, the

EU might have a ‘bigger’ duty to negotiate with an independent Catalona than

Bosnia, Serbia and Macedonia, for example. This is because such a process would involve negotiations with a seceding entity that would have formerly been a part of an EU Member State, involving the prior application of EU law on its territory, making it easier to open accession negotiations/talks with such a candidate country, based on the extent to which it is able to meet the accession criteria.

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5.4 Evidence of a flexible approach to territorial

reconfiguration and EC membership

The German Reunification provides an illustrative example of a flexible approach to territorial reconfiguration and EC membership.476 In addition to the internal dimension to German Reunification, there was the issue of East

Germany’s membership of the EEC, in light of its accession to West Germany.

West Germany was already a part of the EEC (as one of the founding members), but the situation in relation to East Germany was not so straightforward. Article 227(1) of the, former, EC Treaty, on the scope of application of the Treaties, only applied to the territories of EC Member States.

This did not include East Germany as it was not a Member State (reference was, and is still477, only made to the Federal Republic of Germany i.e. West

Germany). In the end, the EC’s institutions automatically integrated or absorbed East Germany into the framework of the EEC. This was done without the need for formal accession proceedings under Article 237 of the, then, EEC Treaty, a revision/amendment of the EEC Treaty or the consent of other Member States.478 East Germany, thus, assumed or inherited West

476 Daniel Kenealy and Stuart MacLennan, ‘Sincere Cooperation, Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland’s Future in the European Union?’ (2014) 20(5) European Law Journal 591, 594; Sionaidh Douglas-Scott, ‘How Easily could an independent Scotland join the EU’ (2014) University of Oxford Legal Research Paper Series 1, 15; Merijn Chamon and Guillaume Van der Loo, ‘The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and Fragmentation versus Widening and Deepening?’ (2014) 20(5) European Law Journal 613, 620. 477 See Article 52(1) TEU. 478 Council of the European Communities, ‘Special Meeting of the European Council – Presidency Conclusions’ (28 April 1990), 2 (para. 4); Commission of the European Communities, ‘The Community and German Reunification’ (21 August 1990) COM (90) 400 final, volume 1, 44. Available at: http://aei.pitt.edu/5199/1/5199.pdf (last accessed: 05 June 2017); Frans von der Dunk and Peter Kooijmans, ‘The Unification of Germany and International Law’ (1991) 12 Michigan Journal of International Law 510, 535, and; Jean-Paul Jacque, ‘German Unification and Community Law’ (1991) 2 European Journal of International Law 1, 3.

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Germany’s membership of the EEC. The reunification of Germany did not create a new state in international law.479 Membership of the EEC was achieved eo ipso German Reunification and upon the entry into force of the

Treaty of Reunification.480

Naturally, the German Reunification increased or extended the German territory. No provision in the EC Treaty actually precluded the automatic extension of the application of the Treaties to an increased German territory.481

The EC’s institutions agreed, through negotiations with Germany, that the

‘moving treaties boundary rule’482 would apply483, in what was deemed to be a

“special case”.484 As there was no fixed territorial definition of the Federal

Republic of Germany in the EC Treaty, it was free to re-define it so as to include the former East Germany.485 As stated by the, then, Commission of the

479 Christiaan Timmermans, ‘German Unification and European Community Law’ (1990) 27 Common Market Law Review 437, 438 – 439, and; Jean-Paul Jacque, ‘German Unification and Community Law’ (1991) 2 European Journal of International Law 1, 5. 480 Ibid, 438, and; Ibid, 11; 481 Jean-Paul Jacque, ‘German Unification and Community Law’ (1991) 2 European Journal of International Law 1, 4. 482 Article 15 of the Vienna Convention on Succession of States in respect of Treaties (1978). 483 Commission of the European Communities, ‘European Commission views on German unification’ (1990) Bulletin of the European Communities Supplement No. 4 1, 33. Available at: http://www.cvce.eu/content/publication/2002/2/14/b18d8b75-eb6e-4777-b8fe- 2dc3d9403943/publishable_en.pdf (last accessed: 08 June 2017); Commission of the European Communities, ‘The Community and German Reunification’ (21 August 1990) COM (90) 400 final, volume 1, 47. Available at: http://aei.pitt.edu/5199/1/5199.pdf (last accessed: 05 June 2017). See also, prior to this, the Strasbourg meeting of the European Council (8 - 9 December 1989), where the Council indicated its support for German Reunification, 15. Available at: http://www.consilium.europa.eu/en/european-council/conclusions/1992-1975/ (last accessed: 03 October 2016). 484 Bulletin of the European Communities, ‘The Commission’s Programme for 1990 - Address by Jacques Delors, President of the Commission, to the European Parliament and his reply to the debate’ (17 January and 13 February 1990) Supplement 1/90 1, 9. Available at: http://aei.pitt.edu/8600/1/8600.pdf (last accessed: 27 June 2017). 485 Christiaan Timmermans, ‘German Unification and Community Law’ (1990) 27 Common Market Law Review 437, 439; Peter Quint, ‘Constitutional Law of German Unification’ (1991) 50(3) Maryland Law Review 476, 622; Mario Martini and Matthias Damm, ‘Succession of States in the EU’ (2014) Ancilla Iuris 159, 170; Jochen Frowein, ‘The Reuniﬁcation of Germany’ (1992) 1 American Journal of International Law 86, 157 - 159; and; Pieter Kuyper, ‘The Community and State Succession in Respect of Treaties’ in Deirdre Curtin

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European Communities, in its explanatory memorandum on Germany’s reunification and East Germany’s integration in the EEC, the date of East

Germany’s accession to the EEC was to take effect at the same time as its accession to West Germany.486 East Germany’s legal personality was extinguished as a result of reunification. The law formerly applicable on East

German territory would only continue to apply in so far as it was compatible with EC Law.487 Primary and secondary EC law, thus, became directly applicable in the territory of, the former, East Germany.488

However, due to the socio-economic state of East Germany at the time489, and in order to avoid immediate disruption, the adoption of EC secondary law was phased and gradual.490

Formal accession proceedings or an amendment to the EC Treaty would have required an agreement on behalf of all Member States. It would also have required subsequent ratification according to the constitutions of each Member

State, which would have been time-consuming and uncertain. Not only was

and Ton Heukels (eds.) Institutional Dynamics of European Integration Essays in Honour of Henry Schermers, vol. 2 (Martinius Nijhoff Publishers 1994), 623. 486 Council of the European Communities, ‘Special Meeting of the European Council – Presidency Conclusions’ (28 April 1990), 2 (para. 4). Available at: http://www.consilium.europa.eu/en/european-council/conclusions/1992-1975/ (last accessed: 04 October 2016), and; Commission of the European Communities, ‘The Community and German Reunification’ (21 August 1990) COM (90) 400 final, volume 1, (para 2.1) and 43 (para 2.1). Available at: http://aei.pitt.edu/5199/1/5199.pdf (last accessed: 05 June 2017). 487 See Article 9 of the Treaty between the Federal Republic of Germany and the German Democratic Republic on the Establishment of German Unity, also known as the ‘Unification Treaty’ (03 October 1990). Available in English at: http://www.cvce.eu/en/obj/the_unification_treaty_between_the_frg_and_the_gdr_berlin_31_au gust_1990-en-2c391661-db4e-42e5-84f7-bd86108c0b9c.html (last accessed: 08 June 2017). 488 Ibid, Article 10. 489 Christiaan Timmermans, ‘German Unification and European Community Law’ (1990) 27 Common Market Law Review 437, 444; Peter Quint, ‘Constitutional Law of German Unification’ (1991) 50(3) Maryland Law Review 476, 623, and; David Spence, ‘The European community and German unification’ (1992) 1(3) German Politics 136, 147. 490 Commission of the European Communities, ‘The Community and German Reunification’ (21 August 1990) COM (90) 400 final, volume 1, 44 - 46. Available at: http://aei.pitt.edu/5199/1/5199.pdf (last accessed: 05 June 2017).

160 this not an option for Germany, it was also not an option for the EC’s political institutions. Whilst the European Parliament initially resisted this proposal491, and had insisted on accession proceedings, it later gave way on this issue.

The European Parliament had insisted on German unification according to the procedure laid out in Article 146, thereby creating a new constitution. This would have created a new German state giving rise to the need for an

Accession Treaty. The European Parliament would have been required to give its assent to the accession of any new Member State.492 The integration of

East Germany into the EEC by any other means would have excluded the influence of the European Parliament from the legislative process.493

The EEC’s political institutions were supportive and welcoming of German reunification and East Germany’s integration into the EEC.494 According to

Council of the European Communities, at the time, the process of reunification was to take place ‘in the perspective of European integration’.495 This is also something that both the EC’s institutions and Germany wished to expedite496

491 David Spence, ‘The European community and German unification’ (1992) 1(3) German Politics 136, 142. 492 See Article 237 of the Treaty Establishing the European Community (as amended by article 8 of the Single European Act). 493 Commission of the European Communities, ‘The Community and German Reunification’ (21 August 1990) COM (90) 400 final, volume 1, 17 - 18. Available at: http://aei.pitt.edu/5199/1/5199.pdf (last accessed: 05 June 2017). 494 Council of the European Communities, ‘Special Meeting of the European Council – Presidency Conclusions’ (28 April 1990), 1 (para. 2). Available at: http://www.consilium.europa.eu/en/european-council/conclusions/1992-1975/ (last accessed: 04 October 2016). 495 Conclusions of the Presidency European Council Strasbourg, 8 and 9 December 1989, 15. Available at: http://www.consilium.europa.eu/en/european-council/conclusions/1992-1975/ (last accessed: 03 October 2010). 496 Christiaan Timmermans, ‘German Unification and Community Law’ (1990) 27 Common Market Law Review 437, 437; Jean-Paul Jacque, ‘German Unification and Community Law’ (1991) 2 European Journal of International Law 1, 17; Peter Quint, ‘Constitutional Law of German Unification’ (1991) 50(3) Maryland Law Review 476, 497; David Spence, ‘The European community and German unification’ (1992) 1(3) German Politics 136, 138, and; Daniel Kenealy and Stuart MacLennan, ‘Sincere Cooperation, Respect for Democracy and EU Citizenship:

161 and bring about “as smoothly as possible”497. It is argued this was because the EC’s institutions did not want to threaten the completion of the internal market (with an initial deadline of 31 December 1992) with the accession and addition of a new Member State.498 The EU’s political institutions had wanted to concentrate on the deepening, brought about by German Reunification, as opposed to the further widening of the European Community.

The integration of East Germany into the EEC, with the resultant, substantial, increase in Germany’s population, had to be considered with respect to voting arrangements in the, former, Council of the European Economic Community.

This is in addition to representation in the European Parliament, specifically, former East German representation in the EEC. Any amendments to existing arrangements would have required a revision of the EEC Treaty.499 Voting arrangements in the Council, at the time, were taken by way of a qualified majority and a weighted system of voting, where each Member State was allocated a number of votes (according to the respective size of its population).500 At the time of Germany’s reunification the applicable rules on

Sufficient to Guarantee Scotland’s Future in the European Union?’ (2014) 20(5) European Law Journal 591, 595. 497 Commission statement on German unification (03 October 1990), 2. Available at: http://www.cvce.eu/content/publication/2002/2/8/abf162ef-0c23-4d78-aa50- ad47505acd38/publishable_en.pdf (last accessed: 20 May 2017). 498 Bulletin of the European Communities, ‘The Commission’s Programme for 1990 - Address by Jacques Delors, President of the Commission, to the European Parliament and his reply to the debate’ (17 January and 13 February 1990) Supplement 1/90 1, 18. Available at: http://aei.pitt.edu/8600/1/8600.pdf (last accessed: 27 June 2017), and; European Communities, ‘Session Documents’ (12 July 1990) Document A3-183/90/Part B – Annex 2 Debates of the European Parliament Sitting of 12 July 1990 on German unification. 499 Peter Quint, ‘Constitutional Law of German Unification’ (1991) 50(3) Maryland Law Review 476, 622. 500 See Article 148(2) of the original Treaty establishing the EEC 1957 (as amended by subsequent accessions to and enlargement of the EEC/EU between 1958 to present), Article 28 of the ECSC and Article 118 of Euratom Treaty. The full text of the EEC Treaty can be found at: http://ec.europa.eu/archives/emu_history/documents/treaties/rometreaty2.pdf (last accessed: 05 June 2017). This can be contrasted to the most recent rules on voting arrangements in the

162 voting in the Council required a total of 54 votes out of a possible 76 votes for a decision to be adopted (Germany, France, Italy and the UK, at the time, all held the largest share of votes, amounting to 10 in total, based on the size of their population).501 Furthermore, representation in the European Parliament, at the time, was proportionate to the size of a Member State’s population

(Germany, France, Italy and the UK all had 81 members each, representing the highest number of members across all Member States).502 Moreover, whenever a new state acceded to the EU, new seats were created (as opposed to just transferred between Member States), as the total number of seats in the European Parliament, pre-Lisbon, was not limited. It is now limited or restricted to 751 seats, whereby every Member State shall be allocated at least

6 seats but no more than 96 seats.503

However, Germany did not request a review of these matters, at the time, in order to ease its transition into the EEC. Technically, there was, therefore, an

Council (where each Member State has one vote and where 15 votes, in practice, is required for a measure to be adopted). According to Article 16(4) TEU and Article 238(3) TFEU: “As from 1 November 2014, a qualified majority shall be defined as at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union.” See Article 3(2) of the Protocol to the Lisbon Treaty on Transitional Provisions. Available at: http://www.lisbon-treaty.org/wcm/the-lisbon- treaty/protocols-annexed-to-the-treaties/686-protocol-on-transitional-provisions.html (last accessed: 05 June 2017). See, further, Council Decision (EU, Euratom) 2016/2353 of 8 December 2016 amending the Council's Rules of Procedure. Available at: http://eur- lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016D2353&from=EN (last accessed: 05 June 2017). 501 Article 148(2) of the original Treaty establishing the EEC and Article 118(2) of the Euratom Treaty (as amended by Article 14 of the Treaty of Accession of Portugal and Spain (1985). Available at: http://publications.europa.eu/resource/cellar/28546a6d-7930-4f52-b17a- 752361f7e1bb.0004.02/DOC_1 (last accessed: 05 June 2017). 502 Article 138(2) of the original EEC Treaty (1957), as amended by Article 14 of the Act concerning the election of the representatives of the Assembly by direct universal suffrage (20 September 1976). Available at http://www.cvce.eu/content/publication/1999/1/1/726617cf- e362-4f7f-bec7-e5196fc39c87/publishable_en.pdf (last accessed: 05 June 2017). See also, now, Article 14(2) TEU. For the requirements of secondary EU legislation, see: European Council, Decision of 28 June 2013 establishing the composition of the European Parliament (2013/312/EU). 503 Article 14(2) TEU.

163 under-representation in the EEC’s institutions.504 It did not request any more

EC Commissioners or an increase in voting power in the Council of the

European Communities. It had been posited during the preparatory stages of

Germany’s reunification that it would have been undemocratic for former East

German citizens to be automatically represented in the European Parliament by unelected MEP’s.505 A Treaty revision addressing, the former, East

Germany’s representation was thus deemed to be necessary. In the interim, representatives for East Germany were given non-voting/observer status.506

Subsequently, Germany did go on to request additional MEP’s, which was agreed and later incorporated into the Treaty of Amsterdam (a total of 18

MEP’s could be elected and added without adversely affecting other Member

States representation in the European Parliament).507 As representation in the

Council of the European Communities and European Commission was508, and

504 Commission of the European Communities, ‘The Community and German Reunification’ (21 August 1990) COM (90) 400 final, volume 1, 20 - 21. Available at: http://aei.pitt.edu/5199/1/5199.pdf (last accessed: 05 June 2017), and; David Spence, ‘The European community and German unification’ (1992) 1(3) German Politics 136, 144. 505 European Parliament, Session Document - Interim Report drawn up on behalf of the Temporary Committee to consider the impact of the process of German unification on the European Community on the implications of German unification for the European Community (09 July 1990) Document A 3-183/90/C. Available at: http://aei.pitt.edu/49053/1/A9250.pdf, 57 (para. 6). 506 See Article 136A of the Rules of Procedure of the European Parliament. See also: European Parliament, Session Document - Interim Report drawn up on behalf of the Temporary Committee to consider the impact of the process of German unification on the European Community on the implications of German unification for the European Community (09 July 1990) Document A 3- 183/90/C. Available at: http://aei.pitt.edu/49053/1/A9250.pdf, 59 (para. 7.4). 507 See European Communities Council, Article 1 of the Decision amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787/ECSC, EEC, Euratom of 20 September 1976 (93/81/Euratom, ECSC, EEC), in the Official Journal of the European Communities (09 February 1993). Available at: http://www.cvce.eu/content/publication/1999/1/1/6b57890b-198e-493f- a33b-6032704a2949/publishable_en.pdf (last accessed: 04 October 2016). 508 See Article 157(1) of the original EEC Treaty and Articles 2 and 10 of the Treaty establishing a Single Council and a Single Commission of the European Communities, also known as the ‘Merger Treaty’ (1967). Available at: http://www.cvce.eu/obj/treaty_establishing_a_single_council_and_a_single_commission_of_th e_european_communities_8_april_1965-en-be427f35-bec6-4872-9afa-e9602d628aea.html (last accessed: 05 June 2017).

164 is509, based on one representative from each Member State (where voting is, in practice, taken on the basis of a simple majority), because the total number of Member States remained the same upon Germany’s reunification, and the absorption of East Germany into the EEC, representation in these institutions remained unchanged.

5.5 Interim summary and concluding remarks

In this chapter, I examined whether a duty to facilitate/negotiate secession can be implied on the EU, based on respect for democracy (Article 2 TEU), the duty of sincere or loyal cooperation (Article 4 TEU), the need to avoid an automatic and involuntary loss of EU citizenship (Article 20 TFEU) and on the existence of a procedure for negotiating a Member State’s withdrawal from the

EU (Article 50 TEU). A number of pragmatic and prudential arguments have been raised, although it would seem that, short of a moral or political obligation, an actual legal obligation on the EU to automatically negotiate/facilitate a seceding entity’s membership of the EU cannot conclusively be established.510

Indeed, it has been questioned whether such a duty could, ultimately, be enforced under the Treaties through the CJEU.511

509 Articles 15(2) and 17(4) TEU on the European Council and European Commission, respectively. 510 See: Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 259 - 260. A moral and legal obligation appear to have been conflated in the literature. See for a discussion: Daniel Kenealy and Stuart MacLennan, ‘Sincere Cooperation, Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland’s Future in the European Union?’ (2014) 20(5) European Law Journal 591, 601. 511 Ibid, 259. See, for example: The Scottish Parliament, ‘Annex A - Written Evidence from Sir David Edward to European and External Relations Committee (Scotland’s position in the European Union)’ 2nd Meeting 2014 Session 4 (23 January 2014) 1, 9. Available at: http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Meeting%20Papers/ Public_papers_23_Jan_2014.pdf (last accessed: 18 May 2017).

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Owing to Germany’s reunification, and East Germany’s automatic (albeit gradual) absorption/integration into the EEC, it is argued the EU’s institutions could adopt a similar approach with respect to a request for EU membership by a seceded entity. If state boundaries can automatically expand in the case of the absorption of a territory into the EEC, a fortiori, it is argued they should be able to automatically contract when a part of a territory of an existing

Member State becomes independent.512 However it is important to note the differences between the German Reunification and a potential case of secession.513 The German Reunification represented an enlargement without accession, and not secession. Whilst continued membership of the EU may not require a formal application to join the EU, it would result in the fragmentation of the EU and a change in the number of constituent entities.

The only way for a seceded entity to rely on the example of the German

Reunification would be to break-away from one Member State and accede to another EU Member State. This would involve a process of (re)unification.

Thus, if the Republic of Ireland and Northern Ireland sought in the future to form a united Ireland, in the light of the UK’s withdrawal from the EU, it could follow the precedent of German Reunification. This would allow it to avoid an amendment/revision of the Treaties.514 This was confirmed by the European

512 Daniel Kenealy and Stuart MacLennan, ‘Sincere Cooperation, Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland’s Future in the European Union?’ (2014) 20(5) European Law Journal 591, 595. 513 Government of Catalonia, ‘Paths for Catalonia’s integration in the European Union’ Report No. 6 (2014) 1, 8. Available at: http://presidencia.gencat.cat/web/.content/ambits_actuacio/consells_assessors/catn/informes/i nf_6_angles.pdf (last accessed: 06 October 2016). 514 Nikos Skoutaris, ‘From Britain and Ireland to Cyprus: Accommodating ‘Divided Islands’ in the EU Political and Legal Order’ (2016) European University Institute - EUI Working Paper AEL 2016/02 1, 6; Nikos Skoutaris, ‘Territorial Differentiation in EU Law: Can Scotland and Northern Ireland Remain in the EU and/or the Single Market’ (2017) 19 Cambridge Yearbook of European Legal Studies 287, 297.

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Council.515 Furthermore, when Eastern Germany was integrated into the EEC, it did not seek an increase in or changes to the treaty provisions on its representation within the EU. However, for a seceded entity wishing to accede to the EU, this would be necessary. Moreover, other Member States may not be willing to consent to this.516 In addition, the German Reunification was conducted on the basis of negotiations with West Germany, as the existing

Member State, and not East Germany, whereas a seceded entity would look to negotiate membership with the EU directly. It is also important to point out that, despite the example provided in this thesis of the German Reunification, reunifications are not always automatic. For example, in the case of Cyprus a special legal basis/process is envisaged in Article 4 of Protocol No. 10 of Act of Accession 2003 (as outlined in the chapter four).

The preceding chapters explored the position of the EU on the legality of secession and its consequences. In doing so, this thesis has examined a number of legal concepts, principles, values, objectives, interests, policies and legal norms in EU law. For example, these included the concepts of democracy and the rule of law in Article 2 TEU, the Union’s respect for national constitutional identities, as well as essential state functions, including ensuring

515 This text has not been made public. However, reference to it can be found at: European Parliament, ‘Outcome of the special European Council (Article50) meeting of 29 April 2017’ Post- European Council Briefing (09 May 2017), 2. Available at: http://www.europarl.europa.eu/RegData/etudes/ATAG/2017/603226/EPRS_ATA(2017)603226 _EN.pdf (last accessed: 24 May 2017), and; see also: Irish Government, ‘Ireland and the negotiations on the UK’s withdrawal from the European Union under Article 50 of the Treaty on European Union: The Irish Government’s Approach’ (May 2017), 7 and 21 - 22. Available at: http://www.merrionstreet.ie/MerrionStreet/en/EU- UK/Key_Irish_Documents/Government_Position_Paper_on_Brexit.pdf (last accessed: 24 May 2017). 516 Merijn Chamon and Guillaume Van der Loo, ‘The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and Fragmentation versus Widening and Deepening?’ (2014) 20(5) European Law Journal 613, 620.

167 the territorial integrity of its Member States, in Article 4(2) TEU and the principle of sincere/loyal co-operation in Article 4(3) TEU. Having examined and discussed such concepts, principles and values in isolation, I now turn to consider, in chapter six, the inter-relationship and connection between them, including how the two key fundamental values of the rule of law and democracy are applied in practice, in the context of secession. The concept of the conflict of norms, value pluralism and the theory on essentially contested concepts provide a useful framework within which to do so. Exploring the interconnectivity and apparent conflict between these provisions, as well as parts of the same provisions, highlights the legal uncertainty and indeterminacy of the existing position of the EU on secession. This discussion reveals the need for a coherent, rational and systematic position on secession, which is discussed in chapter seven, along with the different proposed methods for addressing the lack of clarity in EU law.

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CHAPTER SIX

THE NEED FOR A COHERENT, RATIONAL AND SYSTEMATIC POSITION

ON SECESSION

6.0 Chapter overview

Building on a systematic examination of the existing legal position in previous chapters, in this chapter I will show that, prima facie, a number of legal concepts, principles, values, objectives, interests, policies and legal norms, in the context of the legality of secession and its consequences come into conflict. These include: (i) the Union’s respect for national constitutional identities; (ii) as well as respect for essential state functions, including ensuring the territorial integrity of its Member States, in Article 4(2) TEU; (iii) the principle of sincere/loyal co-operation in Article 4(3) TEU; (iv) democracy and the rule of law in Article 2 TEU; (vi) European soft law guidance/policy on the recognition of new states; (vii) a Member State’s right of ‘veto’ (viii) the

‘statespeoples sovereignty’ principle; (ix) national self-determination, and (x) national sovereignty. Such conflict can be explained through the concepts of the conflict of norms (rules or principles) and value pluralism. I highlight where conflict arises between separate provisions in the Treaties and between conflicting parts of the same provisions, especially when that provision contains separate competing or conflicting values of equal or relative indeterminate status/weight. On their face, the Treaties do not establish a clear relationship, order of value or scale or ranking between such values. In particular, in section 6.3.3, below, I examine the relationship between the rule

170 of law and democracy in Article 2 TEU, explaining the relevance of this discussion to the debate on secession. The EU Treaties do not appear to present a framework in which to resolve such conflict. Thus, I argue there is a need, at an EU-level, to elucidate and/or further develop a theory, argument or conclusions about the interaction or balance between the different conflicting, competing or intertwined concepts, principles, values, objectives, interests, policies and legal norms. Specifically, there is a need for a coherent, rational and systematic EU legal framework on secession.

6.1 The call for clarity

There have been calls at a number of different levels for clarity: by governments of Member States, for the EU’s political institutions to take a proactive role and mediate in the national secession debate517; from European political groups518, and; for a clearer and more explicit EU position on secession in academic scholarship519, beyond the “legalistic reminder” already

517 The Catalan regional government requested EU intervention following a referendum on their independence from Spain. which was declared unlawful by the central government. See: Catalan News, ‘Catalan president asks for international mediation backed by the EU’ (02 October 2018). Available at: http://www.catalannews.com/politi cs/item/catalan-president-asks-for- international-mediation-backed-by-the-eu (last accessed: 02 December 2018). 518 See, for example, the written question by Eluned Morgan from the Socialist Group in the European Parliament to the European Commission (12 February 2004). Available at: http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=P-2004- 0524&language=EN (last accessed: 01 June 2018). 519 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 241; Jean-Claude Piris, ‘Political and Legal Aspects of Recent Regional Secessionist Trends in some EU Member States (I), at 79, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017); Neil Walker, ‘Internal Enlargement in the European Union: Beyond Legalism and Political Expediency’ (2015) Law School Research Paper Series: Europa Working Paper No. 2015/05 1, 3 - 5 and 11 - 14. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2676025 (last accessed: 29 December 2017); Neil Walker, ‘Internal Enlargement in the European Union: Beyond Legalism and Political Expediency’, at 34 - 36 and 42 - 45 in Carlos Closa (ed.) Secession from a Member

171 provided by the EU’s political institutions, that a seceded entity must formally apply for accession to the EU as a ‘third country’.520 Indeed, as one author has noted:

"it is probably a prudent course of action for the European

Commission to maintain its position that the territorial set-up of EU

member states is not something that the Commission should

address, but that should not prevent it from seeking to formulate

policies and suggestions, based on EU competencies and

resources, that contribute political solutions to the problems that

Spain and Catalonia and the UK and Scotland are currently

grappling with.”521

The European Commission and European Parliament recently denounced the unilateral declaration of independence by Catalonia. However, they did not go on to state what the consequences of such a breach would be, with respect to a new state’s future relationship with and/or membership of the EU. Prior to

States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017); Joan Costa Font, ‘Blog - The European Union should step into the debate over Catalan independence’ (23 September 2013). Available at: http://blogs.lse.ac.uk/europpblog/2013/09/23/the-european-union-should-step-into-the-debate- over-catalan-independence/ (last accessed: 27 February 2017); Cristina Fasone, ‘Secession and the Ambiguous Place of Regions Under EU law’, at 49 – 50, 65 - 66, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017); David Edward, ‘EU law and the separation of States’ (2013) 36(5) Fordham International Law Journal 1, 18. 520 Joan Costa i Font, ‘Blog - The European Union should step into the debate over Catalan independence’ (23 September 2013). Available at: http://blogs.lse.ac.uk/europpblog/2013/09/23/the-european-union-should-step-into-the-debate- over-catalan-independence/ (last accessed: 27 February 2017). 521 Niklas Bremberg, ‘The Dream of the Nation-State: Is Regional Secessionism a Threat to European Integration?’, at 261, in Antonina Bakardjieva Engelbrekt, Karin Leijon, Anna Michalski and Lars Oxelheim (eds.) The European Union and the Return of the Nation State (Palgrave Macmillan 2020).

172 this, the EU’s political institutions had refused to comment on the legality of secession and whether they would recognise a hypothetical unilateral declaration of independence by Catalonia. The European Commission has been willing to “…express its opinion on the legal consequences under EC law upon request from a Member State detailing a precise scenario”522 but, short of that, have only been prepared to stipulate that, in the event of secession, a new state would have to apply to join the EU, like any other state, through the normal accession procedure. It is possible to infer from this that an EU response will be determined on a case-by-case basis. Further clarity is needed from the Union’s political institutions on the legal consequences of secession and the associated issue of unilateral secession and a new state’s future relationship with and/or membership of the EU.

With respect to the existing legal position, not all authors agree there is a normative argument to suggest the EU should regulate secession523 nor that a clearer and more explicit EU position on secession should, necessarily, involve the introduction of a formal/procedural provision regulating secession in the EU Treaties. Thus it has been argued that the existing position in the

Treaties, albeit implicit, already contains sufficient normative tools to address secession and simultaneous accession to the EU.524 The primary law provides

522 European Parliament, ‘Parliamentary Questions - Answer given by Mr Barroso on behalf of the Commission’ (20 November 2013). Available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2013- 011023&language=EN (last accessed: 07 August 2016). 523 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 263 – 264. 524 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 263 - 264; Araceli Mangas Martín, ‘La secesión de territorios en un Estado miembro: efectos en el Derecho de la Unión Europea. (2013) 25 Revista De Derecho De La Unión Europe 47, 57. Available at: http://www.pensamientocritico.org/araman0917.pdf (last accessed: 08 June 2018).

173 clear answers, but it is not subject to unanimous interpretation.525 It has also been argued there is no regulatory gap in the EU Treaties: “For there to be such a gap, the lack of a provision that specifically addresses the problem is not enough”.526 Indeed, it has been argued that although “European Union law did not expressly contemplate a situation of this nature does not eliminate the soundness of the approaches that enter the general procedure for incorporating new states”.527

These arguments are premised on the basis that a clear position can already be deduced from an interpretation of existing treaty provisions. As discussed in chapter two, sections 2.2.2 and 2.2.3, above, the EU must respect the national constitutional identities of its Member States and the EU appears to prohibit unilateral secession, by confirming the Union’s respect for essential state functions, including ensuring the territorial integrity of its Member States.

As such, consensual secession would be compatible with the Treaties and unilateral secession would be incompatible with the Treaties.528 Secondly, it is argued the Union must respect the values of the EU in Article 2 TEU. In particular, democratic decisions by a majority in a referendum must respect the rule of law and fundamental human rights. As discussed in section 6.3.4.1, below, this has been evidenced in the EU’s external relations policy to claims to statehood by seceding entities at an international level. Unilateral secession

525 Adoración Galera Victoria, ‘The Catalan Independence Movement in the Political and Constitutional Debate in the European Union’ in Alberto Lopez-Basaguren and Leire Escajedo San-Epifanio, Claims for Secession and Federalism (Springer 2019), 579. 526 Alfredo Galán Galán, ‘Secesión de Estados y pertenencia a la Unión Europea: Cataluña en la encrucijada’ (2013) 1 Saggi e Articoli 95, 110. Available at: http://www.regione.emilia- romagna.it/affari_ist/Rivista_1_2013/Galan.pdf (last accessed: 08 June 2018). 527 Ibid, 580. 528 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 245 - 259.

174 would be a breach of the rule of law. Thirdly, as outlined in chapter five, section

5.2, above, respect for the principle of sincere/loyal cooperation in Article 4(3)

TEU, combined with a reading of Article 17 TEU, means that the Union’s political institutions are required to negotiate/facilitate a seceding entity’s secession and simultaneous accession to the EU, in order to avoid an interruption in membership of the EU. Such an interruption could adversely affect the attainment of EU objectives - notably, those associated with EU citizenship and the preservation of the single market.529

6.2 Conflict of norms and value pluralism

Norm conflict530 is inevitable in a legal system. It occurs when there is a need for a choice between two valid legal norms (rules or principles) which are both, prima facie, applicable to a given situation. A conflict of norms can arise between separate norms or between conflicting parts of the same norm. There are a multitude of causes underlying a conflict of norms.531 One reason behind

529 Ibid, 250 – 251; Sionaidh Douglas-Scott, ‘Scotland, Secession and the European Union’ (2019) Queen Mary University Legal Studies Research Paper No. 301/2019 1, 5. 530 See, for example: Jan Klabbers, Treaty Conflict and the European Union (Cambridge University Press 2009), 18 - 46; Erich Vranes, ‘The Definition of ‘Norm Conflict’ in International Law and Legal Theory’ (2006) 17(2) European Journal of International Law 395, 412 - 415; Ralf Michaels and Joost Pauwelyn, ‘Conflict of Norms or Conflict of Laws? Different Techniques in the Fragmentation of International Law’ in Tomer Broude and Yuval Shany (eds.), Multi-Sourced Equivalent Norms in International Law (Hart 2011), 176. Conflict of norms differs to conflict of laws, which refers to laws that are not a part of the same legal system. 531 These include: (i) the heterogeneity of norms in a legal system; (ii) the internal complexity of a legal norm, which contains numerous aspects or component features; (iii) no clear hierarchy between norms, where one is perceived as being less or more important or binding than another; (iv) temporality; where a contradiction exists between an earlier and a later norm; (v) between general and specific norms; (vi) between primary norms i.e. rules of obligation and secondary norms i.e. rules of recognition, change and adjudication (Herbert Hart, The Concept of Law (Oxford University Press 1961), 92 – 95); linguistic ambiguity, contestability or vagueness in a legal text (Yon Maley, ‘The language of legislation’ (1987) 16(1) Language in society 25, 38; Jeremy Waldron, ‘Vagueness in law and language: some philosophical issues’ (1994) 82 California Law Review 509, generally and at 512 on the difference between

175 a conflict of norms is value pluralism.532 Value pluralism is premised on the idea that several values may underlie conflicting norms and may be equally applicable to a given situation. Such values are in conflict or in ‘perpetual rivalry with one another”.533 They are not subject to a rational choice between them.534 Treaty conflicts can be relatively unproblematic, but clashes between incommensurable values can be problematic.535 Value legislative pluralism is common in legal systems governed by or subject to constitutions, national bills of individual rights, international conventions on human rights or treaties which, by definition, must be and are general and abstract in nature.536 It has been noted bills of rights embody, both, generality and comprehensiveness.537

Indeed, the fact they contain conflicting values makes them comprehensive.538

‘ambiguity’, ‘contestability’ and ‘vagueness’ - collectively, ‘indeterminacy’; Timothy Endicott, ‘Law is Necessarily Vague’ (2001) 7(4) Legal Theory 379, 382; Lucy William, ‘Abstraction and the Rule of Law’ (2009) 29(3) Oxford Journal of Legal Studies 481, 488 – 489. For a discussion of the sources of linguistic vagueness and legal uncertainty, see: Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 52 – 75 (Kindle Edition). With regard to vagueness as “an inescapable attribute of legal language”, see George Christie, ‘Vagueness and Legal Language’ (1964) 48 Minnesota Law Review 885, 889, 895 and 911 and see, also, Timothy Endicott, ‘Law is Necessarily Vague’ (2001) 7(4) Legal Theory 379, 379 – 384. On ‘indeterminacy’ in legal theory and doctrine more generally, see: Ken Kress, ‘Legal indeterminacy’ (1989) 77(2) California Law Review 283). 532 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 53 (Kindle Edition). 533 Isaiah Berlin, Four essays on Liberty (Oxford University Press 1969), 171. 534 The concept of ‘value pluralism’ was discussed in the seminal work by Isaiah Berlin: Isaiah Berlin, Liberty (Oxford University Press 2002), 212 – 217; Samantha Besson, The Morality of Conflict: Reasonable Disagreement and the Law (Hart Publishing 2006), 43, 53, 54 – 56, 64, 67, 384, 425 and 431; George Crowder, Liberalism and value pluralism (Continuum 2002), 55; Jeremy Waldron, Law and Disagreement (Oxford University Press 1999). See, further: Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 76 – 84. In contrast, value monism assumes values are compatible and can be balanced and weighted against each other according to objective criteria. Thus, there can only be one supreme value to which all other values are subordinated (Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 77 (Kindle Edition)). 535 Jan Klabbers, Treaty Conflict and the European Union (Cambridge University Press 2009), 18, 33 – 35 and 45 – 46. 536 William Galston, Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (Cambridge University Press 2002), 67 - 68; Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 82 (Kindle Edition). 537 Owen Fiss, ‘Objectivity and Interpretation’ (1982) 34(4) Stanford Law Review 739, 742; Frederick Schauer, ‘The Generality of Rights’ (2006) 6(3) Legal Theory 323, 330. 538 Ibid, 743.

176

As such, they are not amenable to straightforward interpretation.539 Owing to their open and contested nature, such a conflict can cause controversy540; this is unlike rule-based provisions, which do not entail a judgment decision as to the relative weight of one rule against the other.541 Legal texts will, generally, not explain how to prioritise or treat competing, conflicting or overlapping rights and values.542 Thus, where there is no clear hierarchy or scale of ranking between fundamental rights and values, this can create legal uncertainty or indeterminacy.543 As an a priori technique, such a hierarchy or scale of ranking could provide for norm conflict resolution or avoidance. In the cases where

539 Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 12. See, generally: Lawrence Tribe and Michael Dorf, ‘Levels of Generality in the Deﬁnition of Rights’ (1990) 57 The University of Chicago Law Review 1057. 540 Aida Perez, Conflicts of Rights in the European Union: A Theory of Supranational Adjudication (Oxford University Press 2009), 80; see, generally: Jeremy Waldron, Law and Disagreement (Oxford University Press 1999). 541 Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 139; Ronald Dworkin, Taking Rights Seriously (Gerald Duckworth & Co. Ltd 1977), 26 - 27; Robert Alexy, A Theory of Constitutional Rights (translated by Julian Rivers) (Oxford University Press 2002), 47 – 48; Mattias Kumm, ‘Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice’ (2004) 2(3) International Journal of Constitutional Law 574, 578. 542 To some extent, however, see: Article 6(1) of the TEU referring to the Charter of Fundamental Rights of the European Union (2000), which states that, “The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII [arts 51– 54] of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions …”; indeed, a hierarchy and specification of rights has been resisted in the design of human rights texts, owing to the generally accepted notion of the indivisibility, interdependency and interrelatedness of human rights; on this view, all human rights are considered equal and cannot be subject to a hierarchy (John Edwards, ‘Rights: Foundations, Contents, Hierarchy’ (2006) 12(3) Res Publica 277, 288; Teraya Koji, ‘Emerging Hierarchy in International Human Rights and Beyond’ (2001) 12(5) European Journal of International Law 917, 918 – 919). See: Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 230 – 231. In the absence of a hierarchy of rights: “…no plausible balancing procedure has ever been put forward”: Russ Shafer-Landau, ‘Specifying Absolute Rights’ (1995) 37(1) Arizona Law Review 209, 223. See, also: John Rawls, Political Liberalism (Columbia University Press 1996), 296; Thomas Aleinikoff, ‘Constitutional Law in the Age of Balancing’ (1987) 96(5) Yale Law Journal 943, 972 – 995. On the ‘law of balancing’ (in contrast to a hierarchy), see: Robert Alexy, ‘Balancing, Constitutional Review, and Representation’ (2005) 3(4) International Journal of Constitutional Law 572, 572 – 573; Kai Möller, ‘Balancing and the structure of constitutional rights’ (2007) 5(3) International Journal of Constitutional Law 453, 450 - 460; Gerard Conway, ‘Levels of Generality in the Legal Reasoning of the European Court of Justice’ (2008) 14(6) European Law Journal 787, 796. 543 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 77 and, in particular, 82, 83, 85 and 206 (Kindle Edition).

177 there is no determinate ranking, accepted legal method, criteria or rational and doctrinal basis, or even the existence of higher, ultimate or ‘meta’ norm544 that could arbitrate between conflicting concepts, principles, values, objectives, interests and legal norms, the problem of value pluralism turns into one of norm conflict and adjudication. It is left to legislators and constitutional courts to adjudicate, fill-in the gaps in the law and address abstraction as a matter of interpretation.545

The concept of value pluralism is said to have a special significance in relation to EU law.546 However, norm conflict, as well as value pluralism, have received relatively little academic discussion in legal theory.547 There is little guidance in the EU Treaties or in the legal reasoning of the ECJ as to how the various provisions of the Treaties work together. The EEC (now the TFEU) Treaty is regarded as a trait cadre, setting out broad principles and purposes.548 Indeed, according to Advocate General Jacobs: “…the EEC Treaty [as it then was] does not purport to lay down an exhaustive code of rules […] It merely provides

544 Hans Kelsen, Introduction to the Problems of Legal Theory (translated by Paulson Litschewski Clarendon Press 1992), 71 – 75. 545 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 82 - 83 and 85 (Kindle Edition). 546 Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 75, 88 and 126; Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 74 and 175 - 176 (Kindle Edition); Joxerramon Bengoetxea, The Legal Reasoning of the European Court of Justice: Towards a European Jurisprudence (Clarendon Press 1993), 44. 547 Jan Klabbers, Treaty Conflict and the European Union (Cambridge University Press 2009), 25 and Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 76 - 77 (Kindle Edition). 548 Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 129. See also: Timothy Millett, 'Rules of interpretation of EEC legislation' (1989) 10(3) Statute Law Review 163, 163 and Anthony Arnull, The European Union and its Court of Justice (Oxford University Press 1999), 5; Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 190, 235 and 317 (Kindle Edition).

178 a skeleton. The task of putting flesh on the bones falls to the Community legislature and to the Court….”549 Thus, the potential for norm conflict and overlap between treaty provisions stems from the very scheme of the Treaties.

6.3 The legal indeterminacy of the existing position

6.3.1 The legality of secession

Firstly, whilst the position of the EU Treaties on the legality of consensual or unilateral secession, on its face, seems clear, the Treaties appear to be unclear in cases where national constitutions are silent on secession.

According to Article 4(2) TEU, the Union has declared it will respect the constitutional arrangements of its Member States. However, in cases where national constitutions are silent on secession, there would exist either an implied right to or denial of a right to unilateral secession. Even if a national constitution did permit unilateral secession, deference by a Member State to the argument that the EU must respect their national constitutional identity, in

Article 4(2) TEU, would not permit a Member State to depart from the fundamental values contained in Article 2 TEU550, such as the rule of law or fundamental human rights. It is interesting to note that, in the Treaty of

Maastricht, which contained the predecessor (Article F(1)) to the identity

549 Case 10/89 SA CNL-SUCL NV v HAG GF AG [1990] ECR I-03711, per Advocate General Jacobs, 3728 - 3729 (para. 10). 550 Armin von Bogdandy and Stephan Schill, ‘Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty’ (2011) 38 Common Market Law Review 1, 14 and Mattias Wendel, ‘Lisbon before the Courts: Comparative Perspective’ (2001) 7 European Constitutional Law Review 96, 134 - 135.

179 clause now found in the Lisbon Treaty (Article 4(2) TEU), the principle of respect for national identities was contained in a sub-paragraph, as part of an article which also stated the principles on which the Union was founded

(notably, democracy) and which ensured respect for fundamental rights in the

European Convention on Human Rights.551 The grouping together of respect for national identity with democracy and fundamental human rights was deliberate and suggests they are meant to be read together. It is important to note EU values, such as democracy, are now contained in a free-standing provision (Article 2 TEU), which is separated from Article 4(2) TEU, but Article

2 TEU does make it clear that the values contained in it are still common to all

EU Member States. Of course, a pre-condition to membership of the EU, under Article 49 TEU, also requires respect for the EU’s fundamental values.

Indeed, as one author notes: “Membership of the EU forms an inextricable part of the Member States’ identity”.552

There are a number of contra-indications in the Treaties. The EU Treaties become unclear when one focuses on individual provisions, as well as

551 Vivian Bom, ‘Article 4(2) TEU: The end of the supremacy of EU law?’, at 84, in EU Law Foundations, ‘The Institutional Functioning of the EU' (2011 - 2012) Maastricht Centre for European Law citing Siniša Rodin, ‘National identity and market freedoms after the Treaty of Lisbon’ (2011) Croatian Yearbook of European Law and Policy 11, 14 - 15. Available at: https://hrcak.srce.hr/file/139324 (last accessed: 02 October 2018). According to Article F(1) of the Maastricht Treaty: (1) The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy. (2) The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law. (3) The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.” 552 Siniša Rodin, ‘National identity and market freedoms after the Treaty of Lisbon’ (2011) Croatian Yearbook of European Law and Policy 11, 14. Available at: https://hrcak.srce.hr/file/139324 (last accessed: 02 October 2018).

180 separate parts of the same provisions, in isolation, which could lead one to form misleading conclusions about the legality of secession at an EU-level. A number of examples serve to illustrate this point. Firstly, both, the decision of a region/territory to secede and the automatic loss of EU membership go against the objectives of integration, territorial cohesion and solidarity in Article

3 TEU.553 However, according to Article 50 TEU, membership of the EU is, now, no longer considered to be permanent and this provision has, effectively, legitimised the disintegration of the EU.554 Furthermore, in practice, secessionist movements have repeatedly expressed a desire to retain their membership of the EU and have extolled the virtues of EU membership. To provide another example, as noted, in chapter two, section 2.2.4, above, unilateral secession would violate the procedural requirements of the rule of law. However, according to the democratic principle and associated provisions555, the EU must also respect the democratic decision of a majority within a region to determine its own political future, even if achieved without the consent of the parent state. When one interprets the requirement for respect for democracy in conjunction with the rule of law, it would appear unilateral secession is incompatible with the Treaties. This has been reflected in the EU’s external relations policy to cases of secession and the recognition of new states. In cases of unilateral secession, the EU has not granted

553 Adoración Galera Victoria, ‘The Catalan Independence Movement in the Political and Constitutional Debate in the European Union’ in Alberto Lopez-Basaguren and Leire Escajedo San-Epifanio, Claims for Secession and Federalism (Springer 2019), 586. 554 Wolf Schäfer, ‘Withdrawal legitimised? On the proposal by the Constitutional Convention for the Right of secession from the EU’ (2003) 38(4) Intereconomics 182, 182. 555 See, for example, Article 21 TEU and Article 188(a) TFEU on ‘democracy in the EU’s external relations/action’.

181 recognition to seceding territories citing (the absence of) respect for the rule of law.

It follows that one is also able to discern a potential conflict between the EU’s respect for democracy in Article 2 TEU and, taken together, the first and second part of Article 4(2) TEU. The first part of Article 4(2) TEU dictates that the EU must respect the constitutional position of its Member States on secession and the later part of Article 4(2) TEU appears to prohibit unilateral secession, by confirming the Union’s respect for essential state functions, including ensuring the territorial integrity of its Member States. As outlined, in chapter five, section 5.1, above, it has been argued the unlawful independence referendum in Catalonia should be recognised as legitimate based on the EU’s respect of democracy and political self-determination. However, the EU must also respect the Spanish Constitution which declares secession to be unlawful.

It has been noted there is no discernible hierarchy between Article 4(2) TEU and Article 2 TEU556, which has also been confirmed by the German Federal

Constitutional Court in the Lisbon case:

“…. the values codified in Article 2 Lisbon TEU…may in the case of

a conflict of laws not claim primacy over the constitutional identity of

556 Fostering Human Rights among European Policies, ‘Critical analysis of the EU’s conceptualisation and operationalisation of the concepts of human rights, democracy and rule of law’ (2014) 1, 49. Available at: http://bim.lbg.ac.at/sites/files/bim/attachments/deliverable- 3.2.pdf (last accessed: 17 June 2018).

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the Member States, which is protected by Article 4.2 first sentence

Lisbon TEU ...”557

Finally, a potential conflict is created in Article 4(2) TEU itself. The first part of

Article 4(2) TEU means that the EU must respect the constitutional position of its Member States on secession. This would include cases where secession is permitted, albeit any right to secession is made to be conditional. However, the latter part of Article 4(2) TEU appears to prohibit unilateral secession, by confirming the Union’s respect for essential state functions, including ensuring the territorial integrity of its Member States. Thus, from the foregoing, the following problem is apparent:

“…the way in which the individual elements (individual values) of the

clause are to compare against the other principles, values and

objectives that are contained in the other provisions of the TEU and

in those of the TFEU... In particular, it should be clear that the

values of Article 2 TEU substantially affect the very interpretation of

the Treaties since, in the case of a conflict between the provisions

of the Treaties and the values of the Union, preference is to be given

to the interpretation that is closest to the values”.558

557 Lisbon Case (BVerfG/Federal Constitutional Court) 2 BvE 2/08 (Judgment of the Second Senate of 30 June 2009), at para 332. Available (in English) at: http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2009/06/es200906 30_2bve000208en.html (last accessed: 02 July 2018). 558 Stelio Mangiameli, ‘Article 2 [The Homogeneity Clause]’, at 117, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013).

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In the case of such a conflict, preference must be given to the interpretation closest to the values in Article 2 TEU. Accordingly, with regard to the example noted above, preference would have to be given to the values in Article 2 TEU.

However, a further problem exists in terms of how to interpret conflicting parts of the same provision within the EU Treaties, especially when that provision contains separate competing or conflicting values of equal or indeterminate relative status. The Treaties do not establish a clear relationship and order of value between the EU’s concepts, principles, values, objectives, interests and legal norms. Article 2 TEU provides an illustrative example.

6.3.2 The values in Article 2 TEU

On its face, Article 2 TEU does not appear to go beyond an emphatic, symbolic or political statement.559 On one view, therefore, it is said the values: “…are simply meant to give some orientation to the Union and Member States when they implement Union law or policies”.560 It has been questioned whether they actually impose a legal obligation561 or are justiciable.562 Indeed, unlike the

Union’s objectives in Article 3 TEU, the EU’s values are not linked to the competences of the Union.563 The substantive and operative content of the values in Article 2 TEU is said to be vague and ambiguous.564 The values in

559 Ibid, 119. 560 Jan-Werner Müller, ‘Should the EU Protect Democracy and the Rule of Law Inside Member States?’ (2015) 21(2) European Law Journal 141, 146. 561 Ibid. 562 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 166 (Kindle Edition). 563 Marcus Klamert and Dimitry Kochenov, ‘Article 2’, at 25, in Manuel Kellerbauer, Marcus Klamert and Jonathan Tomkin (eds), EU Treaties and the Charter of Fundamental Rights: A Commentary (Oxford University Press 2019). 564 Christophe Hillion, Editorial comments: ‘Safeguarding EU values in the Member States – Is something finally happening?’ (2015) 52 Common Market Law Review 619, 626; Christophe Hillion ‘Overseeing the Rule of Law in the EU: Legal Mandate and Means’ at 67 and 69 in Carlos

184

Article 2 TEU are not defined or expanded upon in the Treaties, nor are the obligations which they entail prescribed.565 However, the fact the values in

Article 2 TEU are made operational566 and enforceable through the issue of sanctions in Article 7 TEU, implies it imposes an actual obligation on the EU and Member States567. The values possess a ‘contextual incompleteness’.568

Indeed, the EU lacks a commonly agreed conceptualisation of these principles569 and critics argue their essential contestability means they are not amenable to a workable definition.570 It is also argued the conceptual vagueness of the values in the EU Treaties limits their ability to inform the interpretation or construction of other EU treaty provisions. It has been suggested their legal function should be clarified by the CJEU, in order to better

Closa and Dimitry Kochenov, Reinforcing Rule of Law Oversight in the European Union (1st ed., Cambridge University Press 2018); Christophe Hillion, ‘Overseeing the Rule of Law in the European Union - Legal Mandate and Means (2016) 1 European Policy Analysis 1, 5, and; Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 176 (Kindle Edition); Christophe Hillion, ‘Overseeing the rule of law in the European Union: Legal mandate and means’ (2016) 1 European Policy Analysis 1, 5; Takis Tridimas, The General Principles of EU law (Oxford University Press 2006), 16. 565 See, for example: COREPER, Council conclusions on fundamental rights and rule of law and on the Commission 2012 report on the application of the Charter of Fundamental Rights of the European Union (29 May 2013) 1, 5 (point 9); Jan-Werner Müller, ‘Should the EU Protect Democracy and the Rule of Law Inside Member States?’ (2015) 21(2) European Law Journal 141. 566 Marcus Klamert and Dimitry Kochenov, ‘Article 2’, at 26, in Manuel Kellerbauer, Marcus Klamert and Jonathan Tomkin (eds), EU Treaties and the Charter of Fundamental Rights: A Commentary (Oxford University Press 2019). 567 Carlos Closa, Dimitry Kochenov and Joseph Weiler, ‘Reinforcing Rule of Law Oversight in the European Union’ EUI Working Paper RSCAS 2014/25 1, 9 - 10. Available at: http://cadmus.eui.eu/bitstream/handle/1814/30117/RSCAS_2014_25_FINAL.pdf?sequence=3 (last accessed: 11 June 2018). 568 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), at 164 (Kindle Edition). 569 Fostering Human Rights among European Policies, ‘Critical analysis of the EU’s conceptualisation and operationalisation of the concepts of human rights, democracy and rule of law’ (2014) 1. Available at: http://bim.lbg.ac.at/sites/files/bim/attachments/deliverable-3.2.pdf (last accessed: 17 June 2018), and; Carrera, Sergio, Elspeth Guild and Nicholas Hernanz, ‘The triangular relationship between fundamental rights, democracy and the rule of law in the EU: towards an EU Copenhagen mechanism’ (2013) Centre for European Policy Studies 1, 26 - 27. 570 Carlos Closa and Dimitry Kochenov, Reinforcing Rule of Law Oversight in the European Union (1st ed., Cambridge University Press 2018), 115 and Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 165 (Kindle Edition).

185 understand their enforceability.571 The content of the EU’s values have been specified and further developed and articulated in the context of the EU’s enlargement policy and ‘pre-accession strategy’.572 It is pointed out that the reason the values in Article 2 TEU are general, broad and declaratory-in- nature is, ultimately, because they are a product of political compromise at the drafting stage.573 Notwithstanding this, the lack of a specific definition could be deemed as a virtue, in order to ensure flexibility in the application of the

Treaties to situations on an ad hoc basis.574

More accurately, the values in Article 2 TEU are said to represent more than just ‘values’ but, instead, constitute core ‘founding principles’.575 They are, therefore. not just symbolic or aspirational. They go beyond “fundamental ethical convictions” 576, “solemn”577, “vague or extravagant proclamations”578, or a “political declaration left to the political discretion of Member States to

571 Marcus Klamert and Dimitry Kochenov, ‘Article 2’, at 25 - 26, in Manuel Kellerbauer, Marcus Klamert and Jonathan Tomkin (eds), EU Treaties and the Charter of Fundamental Rights: A Commentary (Oxford University Press 2019) 572 Christophe Hillion, ‘Overseeing the rule of law in the European Union: Legal mandate and means’ (2016) 1 European Policy Analysis 1, 6.

573 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 206 (Kindle Edition). 574 Fostering Human Rights among European Policies, ‘Critical analysis of the EU’s conceptualisation and operationalisation of the concepts of human rights, democracy and rule of law’ (2014) 1, 48. Available at: http://bim.lbg.ac.at/sites/files/bim/attachments/deliverable- 3.2.pdf (last accessed: 17 June 2018). 575 Stelio Mangiameli, ‘Article 2 [The Homogeneity Clause]’, at 117, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 576 Armin von Bogdandy and Jürgen Bast, Principles of European Constitutional Law (2nd ed., Hart Publishing 2008), 22. 577 Dimitry Kochenov, ‘On Policing Article 2 TEU Compliance - Reverse Solange and Systemic Infringements Analyzed’ (2014) University of Groningen Faculty of Law Research Paper Series No. 6/2015 145, 151. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2486042 (last accessed: 24 June 2018). 578 András Jakab and Dimitry Kochenov, The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (1st ed., Oxford University Press 2017), 9.

186 decide”.579 This is because they represent legal norms which produce real or concrete legal effects.580 Thus, they operate at a moral, political and legal level.581 Violations of Article 2 TEU are not said to be the same as ‘ordinary’ acquis communautaire violations582, which also speaks to their fundamental nature. The explicit reference to the values in Article 2 TEU as ‘values’, does not necessarily deprive them of their legal nature.583 Indeed, one is reminded the term ‘principles’ was employed in the actual wording of the EC Treaty, pre-

Lisbon (ex-Article 6(1) of the EC Treaty).584 As one author has neatly put it:

“Since the values in Article 2 TEU-Lis have been agreed upon in the

procedure of Article 48 EU and produce legal consequences (e.g.

Articles 3(1), 7, 49 TEU-Lis), they are legal norms, and since they

are overarching and constitutive, they are founding principles.”585

579 Bojan Bugarič, ‘Protecting Democracy and the Rule of Law in the European Union: The Hungarian Challenge LSE ‘Europe in Question’ Discussion Paper Series - LEQS Paper No. 79/2014 1, 27. Available at: http://www.lse.ac.uk/europeanInstitute/LEQS%20Discussion%20Paper%20Series/LEQSPaper 79.pdf (last accessed: 24 June 2018). 580 Jean-Claude Piris, The Lisbon Treaty: A Legal and Political Analysis (3rd ed., Cambridge University Press 2010), 71. 581 Takis Tridimas, The General Principles of EU law (Oxford University Press 2006), 15. 582 Dimitry Kochenov and Petra Bárd, ‘Rule of Law Crisis in the New Member States of the EU: The Pitfalls of Overemphasising Enforcement’ (July 2018) RECONNECT - Working Paper No. 1 1, 17. Available at: https://reconnect-europe.eu/wp-content/uploads/2018/07/RECONNECT- KochenovBard-WP_27072018b.pdf (last accessed: 28 August 2018). 583 See, for example: Laurent Pech, ‘A Union Founded on the Rule of Law: Meaning and Reality of the Rule of Law as a Constitutional Principles of EU law’ (2010) 6 EU Constitutional Law Review 359, 366 - 367. 584 András Jakab and Dimitry Kochenov, The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (1st ed., Oxford University Press 2017), 9 and Laurent Pech, ‘The Rule of Law as a Constitutional Principle of the European Union’ (2009) Jean Monnet Working Paper 04/09 1, 20 - 21. 585 Armin von Bogdandy and Jürgen Bast, Principles of European Constitutional Law (2nd ed., Hart Publishing 2008), 22. See also: Armin Von Bogdandy, ‘Founding Principles of EU Law: A Theoretical and Doctrinal Sketch’ (2010) 16(2) European Law Journal 95, 106.

187

Thus, the legal significance of Article 2 TEU is confirmed in Article 48 TEU, as respect for the values listed in Article 2 TEU is a condition sine qua non for membership of the EU. The values in Article 2 TEU amount to individual structural principles of a meta-legal content and they are to be attributed with a legal value. Some of the values listed in Article 2 TEU are also recognised as general principles of EU law.586 Importantly, this means they must follow rules of legal interpretation and legal reasoning.587 However, whilst articulation of the values in abstract, at least, is more straightforward, the scope and application of the EU’s values in specific contexts can be challenging. The EU

Treaties do not specify the functional relationship of the separate values to one another, nor their relative legal weight. Some disagreement therefore remains about which of the values in Article 2 TEU is more fundamental, takes precedence over the other or is the dominant or guiding principle.588 Within the context of the Treaties as a whole, it has been said Article 2 TEU sits at the top of the hierarchy of EU norms.589 It is, thus, said to provide a point of reference for the interpretation of other provisions in the Treaties.590 There is no internal norm hierarchy but, ultimately, it has been said a perceived hierarchy comes down to a matter of perspective591:

586 See, for example, the prohibition on discrimination in Article 18 TFEU. 587 Stelio Mangiameli, ‘Article 2 [The Homogeneity Clause]’, at 115 – 116, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 588 Marcus Klamert and Dimitry Kochenov, ‘Article 2’, at 25, in Manuel Kellerbauer, Marcus Klamert and Jonathan Tomkin (eds), EU Treaties and the Charter of Fundamental Rights: A Commentary (Oxford University Press 2019). 589 Takis Tridimas, The General Principles of EU law (Oxford University Press 2006), 16. 590 Ibid. 591 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), at 206 (Kindle Edition).

188

“…it may be a matter of ‘you stand where you sit’. For the

Fundamental Rights Agency (FRA), human rights are the

overarching concept, for DG Justice it may be the rule of law, while

others may feel that democracy is the glue that binds the three

elements together.”592

6.3.3 Democracy and the rule of law in the context of secession

In the debate over the legitimacy of unilateral secession, democracy and the rule of law, in Article 2 TEU, appear to be in conflict. However, this is only true to a certain extent as the modern European idea of democracy encompasses the rule of law. They are not attributed with a relative hierarchical status.593

Both concepts are regarded as paradigmatic examples of ‘essentially contested concepts’.594 An ‘essentially contested concept’: “…inevitably

592 Democracy Reporting International, ‘From commitment to action: fundamental values in the EU Member States - Report on an expert roundtable on legal mechanisms and reforms of EU law’ (2014), 2. Available at: https://democracy-reporting.org/dri_publications/expert- roundtable-report-fundamental-values-in-eu-member-states/ (last accessed: 17/06/2018). 593 Stelio Mangiameli, ‘Article 2 [The Homogeneity Clause]’, at 117 – 118, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 594 See: Gerrard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 90. Indeed, Gallie (who coined the term) refers to democracy as “the appraisive concept par excellence” – see Walter Gallie, ‘Essentially Contested Concepts’ (1956) 56(1) Proceedings of the Aristotelian Society 167, 184. On ‘democracy’ as an essentially contested concept, see: David Collier, Fernando Hidalgo and Andra Maciuceanu, ‘Essentially Contested Concepts: Debates and Applications’ (2006) 11(3) Journal of Political Ideologies 211, 212, and 222 – 224; Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012, Kindle Edition), 81; Jeremy Waldron, ‘Vagueness in law and language: some philosophical issues’ (1994) 82 California Law Review 509, 532; Giovanni Sartori, The Theory of Democracy Revisited (Chatham House 1987), 7 – 8; Guillermo O’Donnell and Philippe Schmitter, Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies (The Johns Hopkins University Press, 1986), 3. On the ‘rule of law’ as an essentially contested concept, see: David Collier, Fernando Hidalgo and Andra Maciuceanu, ‘Essentially Contested Concepts: Debates and Applications’ (2006) 11(3) Journal of Political Ideologies 211, 228 – 229 and 230 (on the rule of law); Jeremy Waldron, ‘Is the rule of law an essentially contested concept (in Florida)? (2002) 21 Law and Philosophy 137, 154 and 157; Richard Fallon, ‘The Rule of Law as a Concept in Constitutional

189 involves endless disputes about their proper uses on the part of their users”.595

Whilst such a concept would not necessarily need to satisfy all596 of the normative components and (pre)conditions of ‘essential contestedness’597, it should be: (i) capable of ambiguity, and therefore be evaluative or appraisive i.e. abstract and qualitative; (ii) be of an internally complex character, and therefore be variously describable; (iii) be ‘open’ and therefore capable of modification or adaptation, in a manner that is unpredictable, according to changing circumstances, and; (iv) be persistently vague. Users of the concept must also, (v) reciprocally recognise and acknowledge the other’s use, and one’s own use, of the concept as contested. Disagreement will concern the core meaning of a concept, as opposed to its penumbra.598 This is, however, subject to ‘anchoring’.599 The parties’ use of the concept must acknowledge the authority of a concept as deriving from a single, original or paradigm exemplar and, therefore possess a common core.600 An original exemplar is said to anchor the concept in terms of where there is agreement601 and “[its] authority is acknowledged by all the contestant users...”.602 However, not all

Discourse’ (1997) Columbia Law Review 1, 7; Herbert Hart, The Concept of Law (Oxford University Press 1961), at 124 – 125 on the rule of law as an ‘open textured concept’. 595 Ibid, 169. 596 Ibid, 174 (footnote 2). 597 Ibid, 171 – 172 and 174. 598 Gerrard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 90 – 91; Jeremy Waldron, ‘Is the Rule of Law and Essentially Contested Concept (in Florida)?’ (2002) 21(2) Law and Philosophy 137, 148 – 148; Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 96 (Kindle Edition). 599 Gerrard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 90 - 91; Gunnar Beck, ‘The Mythology of Human Rights’ (2008) 21(3) Ratio Juris 312, 325 - 326. 600 Walter Gallie, ‘Essentially Contested Concepts’ (1956) 56(1) Proceedings of the Aristotelian Society 167, 177. 601 Gerrard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 90. 602 Walter Gallie, ‘Essentially Contested Concepts’ (1956) 56(1) Proceedings of the Aristotelian Society 167, 180.

190 authors agree this is capable owing to the very nature of a contested concept.603 Elsewhere, this has been described as ‘family resemblances’: “…a complicated network of similarities overlapping and criss-crossing”.604 Thus, it must be possible to say the disagreement relates to different conceptions about the same concept, as opposed to different concepts.605 This seeks to avoid conceptual relativism, in which the efficacy of a concept is undermined through endless disagreement as to its meaning.606 The legal theory and doctrine on ‘essentially contested concepts’ provides a doctrinal framework607 in which to consider the rule of law and democracy in Article 2 TEU.608

603 Ernest Gellner, ‘The concept of a story’ (1967) 8 Ratio 49, 53; Michael Freeden, ‘Editorial: Essential contestability and effective contestability’ (2004) 9 Journal of Political Ideologies 3, 60; Christine Swanton, ‘On the “essential contestedness” of political concepts’ (1985) 95 Ethics 811, 816; Alasdair MacIntyre, ‘The essential contestability of some social concepts’ (1973) 84 Ethics 1, 2; John Gray, ‘On the contestability of social and political concepts’ (1977) 5 Political Theory 331, 390 and 392. 604 Ludwig Wittgenstein, Philosophical Investigations (Oxford University Press 1953), 66. 605 An essentially contested concept is based on reasonable or rational disagreement, as opposed to misinformed, mistaken, confused, unintelligible or irrational disagreement – see Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 62 - 63. On ‘conceptual confusion’, see: David Collier, Fernando Hidalgo and Andra Maciuceanu, ‘Essentially contested concepts: Debates and applications’ (2006) 11(3) Journal of Political Ideologies 211, 212 and 219. On ‘mutually contested concepts’ see: Kenneth Smith, ‘Mutually contested concepts and their standard general use’ (2002) (2) Journal of Classical Sociology 329, 332 and Robert Grafstein, ‘A realist foundation for essentially contested political concepts’ (1988) 41 The Western Political Quarterly 9, 19 and 25. 606 Gerrard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 91; David Collier, Fernando Hidalgo and Andra Maciuceanu, ‘Essentially Contested Concepts: Debates and Applications’ (2006) 11(3) Journal of Political Ideologies 211, 212; John Gray, ‘On the contestability of social and political concepts’ (1977) 5 Political Theory 331, 343. John Gray, ‘On liberty, liberalism, and essential contestability’ (1978) 8 British Journal of Political Science 385, 392; Barry Clarke, ‘Eccentrically contested concepts’ (1979) 9 British Journal of Political Science 122, 125 – 126; Michael Freeden, Ideologies and Political Theory: A Conceptual Approach (Clarendon Press 1996), 76. 607 David Collier, Fernando Hidalgo and Andra Maciuceanu, ‘Essentially contested concepts: Debates and applications’ (2006) 11(3) Journal of Political Ideologies 211, 215. See: Walter Gallie, ‘Essentially Contested Concepts’ (1956) 56(1) Proceedings of the Aristotelian Society 167, 168 and 170 for a description of his own account of the term. 608 See, generally: Christine Swanton, ‘On the “Essential Contestedness” of Political Concepts’ (1985) 95(4) Ethics 811, 815.

191

It is said the core elements of democracy and the rule of law are settled, in so far as both concepts possess some fixed content and there is a shared understanding of certain aspects of the concepts. They, therefore, have a

‘core of certainty’.609 For example, the formal conception of the rule of law represents its core settled meaning.610 However, some aspects of both concepts remain unsettled.611 Generally speaking, both concepts are open- ended and their application in specific contexts is less settled and certain.

They have a ‘penumbra of uncertainty’.612 For example, with reference to the rule of law, it has been noted that: “the descriptive meaning of “the rule of law” is dependent on the prescriptive meaning one ascribes to it”.613 However, as both concepts have an agreed common core, they are subject to practical closure.614

Both the rule of law and democracy appear in the EU Treaties to be of equal and indeterminate value and are not only incompatible but, also, incommensurable.615 In deciding which value should ultimately take

609 On this term, see: Friedrich Waismann, ‘Verifiability’ in Antony Flew, Logic and Language (Blackwell 1952). 610 Gerrard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 91. 611 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 65 (footnote 6); Jeremy Waldron, ‘Is the Rule of Law and Essentially Contested Concept (in Florida)?’ (2002) 21(2) Law and Philosophy 137, 146, 148 – 149 and 158. Gunnar Beck, ‘The Idea of Human Rights between Value Pluralism and Conceptual Vagueness’ (2007) 25(3) Penn State International Law Review; David Collier, Fernando Hidalgo and Andra Maciuceanu, ‘Essentially Contested Concepts: Debates and Applications’ (2006) 11(3) Journal of Political Ideologies 211, 230. 612 Herbert Hart, The Concept of Law (Oxford University Press 1961), 119. 613 Michel Rosenfeld, The Rule of Law and the legitimacy of constitutional democracy 74 Southern California Law Review 1307, 1308. 614 Gerrard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 90 – 92; David Collier, Fernando Hidalgo and Andra Maciuceanu, ‘Essentially contested concepts: Debates and applications’ (2006) 11(3) Journal of Political Ideologies 211, 229 referring to Norman Care on practical closure. See: Norman Care, ‘On ﬁxing social concepts’ (1973) 84 Ethics 1, 14. 615 George Crowder, Liberalism and value pluralism (Continuum 2002), 49 - 55.

192 precedence, there can be no ‘trade-off’ between the values, whereby, for example, a restriction presented by one value might be outweighed by a correlative gain from another.616 It has been argued one must not give democracy a ‘shallow meaning’ but, instead, imbue it with a ‘richer (modern) conception of democracy’.617 Democracy must be seen through a broader conceptual framework. This means a democratic decision must also comply with the rule of law and fundamental human rights. The formal understanding of the rule of law, restricting it to the limits of formal legality618, is the dominant view of the rule of law.619 However, the ‘thicker’ and more substantive versions of the rule of law recognise and incorporate elements of the formal rule of law, but also include further content specifications/precepts.620 The most common is individual rights within the rule of law621, but it is also articulated to include democracy.622 Whilst individual rights and democracy are not inherent in the

616 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 78 and 85 (Kindle Edition). 617 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 249 - 250 and, see also: Carlos Closa, ‘Changing EU internal borders through democratic means’ (2017) 39(5) Journal of European Integration 515, 521 - 522. 618 That is to say, the manner and form in which the law is created, as opposed to its actual content. On the main differences between the formal and substantive meanings of the rule of law, see: Paul Craig, ‘Formal and substantive conceptions of the rule of law: an analytical framework’ (1997) Public Law 467, 467 and Brian Tamanaha, On the Rule of Law: History, Politics Theory (Cambridge University Press 2004), 91. 619 Brian Tamanaha, On the Rule of Law: History, Politics Theory (Cambridge University Press 2004), 111 and 119. On the formal view of the rule of law, see Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law Quarterly Review 195, 196. See, also, Albert Dicey, The Law of the Constitution (10th ed., 1959), 188, 193, 195 – 196 and 203 and Jeffrey Jowell, ‘The Rule of Law Today’, in Jeffrey Jowell and Dawn Oliver (eds.), The Changing Constitution (3rd. ed., Oxford University Press 1994), 71 - 77. 620 Paul Craig, ‘Formal and substantive conceptions of the rule of law: an analytical framework’ (1997) Public Law 467, 467; Roberto Unger, Law in Modern Society (Free Press 1976), 176 – 181 and 192 – 223. 621 Dworkin referred to this as the ‘rights-based conception/theory’. See: Ronald Dworkin, ‘Political Judges and the Rule of Law’ (1978) 64 Proceedings of the British Academy 259, 262 and Ronald Dworkin, A Matter of Principle (Harvard University Press 1985), 11 – 12. See, generally, Brian Tamanaha, On the Rule of Law: History, Politics Theory (Cambridge University Press 2004), 102 – 113 on ‘substantive theories’ of the rule of law. 622 Brian Tamanaha, On the Rule of Law: History, Politics Theory (Cambridge University Press 2004), at 110: “…when the phrase the rule of law is uttered it is typically understood to include democracy and individual rights along with formal legality […] they cluster together in liberal

193 traditional conception/meaning of the rule of law, they have come to be associated together within Western liberal democracies.623 As one author has noted: “the modern legal order can draw its legitimacy only from the idea of self-determination: citizens should always be able to understand themselves also as authors of the law to which they are subject as addressees”.624 In other words, the law derives its authority from the ‘body politic’ or consent of the governed.625 Democracy depends on the rule of law and vice versa. For example, without the rule of law democracy could be violated and without democracy the rule of law would have no legitimacy. The values of the EU were intended to be complementary, mutually-reinforcing, dependent and are co-constitutive.626 They were not intended to be opposing or antithetical:

democracies as a unified complementary package” and at 99 – 101 (on ‘democracy and formal legality’). See, also, Norman Marsh, ‘The Rule of Law as a Supra-National Concept’ in Anthony Guest (ed.), Oxford Essays in Jurisprudence (Oxford University Press 1961), 244; Lucy William, ‘Abstraction and the Rule of Law’ (2009) 29(3) Oxford Journal of Legal Studies 481, 505 - 509; Trevor Allan, Law, Liberty and Justice: The Legal Foundations of British Constitutionalism (Oxford University Press 1993), at 21 – 22: “…universal suffrage may today be taken as a central strand of the rule of law”. 623 Brian Tamanaha, On the Rule of Law: History, Politics Theory (Cambridge University Press 2004), 99 and 112. See, also, Jurgen Habermas, Beyond Facts and Norms (MIT Press, translated by William Rehg 1996), 104. 624 Jurgen Habermas, Beyond Facts and Norms (MIT Press, translated by William Rehg 1996), 449. 625 Brian Tamanaha, On the Rule of Law: History, Politics Theory (Cambridge University Press 2004), 34 and 99. See, further, the key works of Thomas Hobbes, John Locke, John Rawls and Jan Jacque Rouseau. 626 Richard Caplan and Zachary Vermeer, ‘The European Union and Unilateral Secession: The Case of Catalonia’ (2018) Uncorrected page proofs (cited with permission), 764; Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 249 - 250; Carlos Closa, ‘Changing EU internal borders through democratic means’ (2017) 39(5) Journal of European Integration 1, 521 - 522; Carlos Closa, ‘Blog - Catalan secessionism faces the European Union’ (07 October 2017). Available at: http://verfassungsblog.de/catalan-secessionism-faces-the-european-union/ (last accessed: 08 January 2018); Laurent Pech, Erik Wennerström, Vanessa Leigh, Agnieszka Markowska, Linda De Keyser, Ana Gómez Rojo, and Hana Spanikova, ‘An EU mechanism on democracy, the rule of law and fundamental rights – Annex I: An EU mechanism on democracy, the rule of law and fundamental rights’ (2016) European Parliamentary Research Service 1, 22; Dimitry Kochenov, EU Enlargement and the Failure of Conditionality: Pre- Accession Conditionality in the Fields of Democracy and the Rule of Law: Pre-Accession and the Rule of Law (Kluwer Law International 2008), 111 – 113; Michael Rosenfeld, ‘The rule of law and the legitimacy of constitutional democracy’ 74 Southern California Law Review (2001) 1307, 1308.

194

“Thus each of these concepts functions as a guarantee of the

existence of another.”627

When considered in isolation, these concepts appear to be incompatible and contradictory. Democracy in Article 2 TEU would appear to support the right of a seceding entity to unilaterally determine their own political future, whereas the rule of law requires secession, in order for it to be considered legitimate, to be carried out with the consent of the parent state and in accordance with national constitutional requirements. However, the rule of law, democracy and fundamental human rights are inextricably linked and go hand-in-hand:

“Like the three legs of a stool, if one is missing the whole is not fit

for purpose. While each element can be examined separately, it is

critical never to lose sight of the elementary truth that the three are

inherently and indivisibly interconnected.”628

The link between democracy and the rule of law has also been referred to as a ‘normative stereotype’.629 Indeed, as one author has commented, from a textual point of view, in terms of their arrangement in the EU Treaties: “…these concepts are usually mentioned together, which at the very least shows their

627 Dimitry Kochenov, EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in the Fields of Democracy and the Rule of Law: Pre-Accession and the Rule of Law (Kluwer Law International 2008), 112. 628 Carrera, Sergio, Elspeth Guild and Nicholas Hernanz, ‘The triangular relationship between fundamental rights, democracy and the rule of law in the EU: towards an EU Copenhagen mechanism’ (2013) Centre for European Policy Studies 1, 30. 629 Jose Maravall, The Rule of Law as a Political Weapon’ in Jose Maravall and Adam Przeworski (eds.), Democracy and the Rule of Law (Cambridge University Press 2003), 264.

195 interconnection and interdependence in the context of the EU legal framework.”630

In the context of the debate over the legality of Catalonia’s recent unilateral declaration of independence, it has been highlighted representatives of the

EU’s political institutions have not referred to Spain’s action, in refusing to sanction Catalonia’s independence referendum or recognise the subsequent declaration of independence, as a breach of fundamental EU values. Instead, they have referred to such action, on the part of the Spanish government, as upholding the rule of law, which suggests that democracy and the rule of law must go hand-in-hand.631 Following the outcome of the recent unilateral declaration of independence, the First Vice-President of the European

Commission reaffirmed the EU has:

“…shaped our democratic societies based on three principles:

democracy, respect for the rule of law and human rights … The

three need each other, they cannot exclude each other … If you

remove one pillar, then the others will fall too … Respect for the rule

of law is not optional, it is fundamental.”632

630 Laurent Pech, Erik Wennerström, Vanessa Leigh, Agnieszka Markowska, Linda De Keyser, Ana Gómez Rojo, and Hana Spanikova, ‘An EU mechanism on democracy, the rule of law and fundamental rights – Annex I: An EU mechanism on democracy, the rule of law and fundamental rights’ (2016) European Parliamentary Research Service 1, 22. 631 Richard Caplan and Zachary Vermeer, ‘The European Union and Unilateral Secession: The Case of Catalonia’ (2018) Uncorrected page proofs (cited with permission), 764. 632 European Parliament, ‘EP Plenary session: Constitution, rule of law and fundamental rights in Spain in the light of the events of Catalonia. Opening statement by Frans Timmermans, First Vice-President of the EC (15:06 - 15:14)’. Available at: http://audiovisual.europarl.europa.eu/Assetdetail.aspx?id=bbf14746-0db7-41d8-bb4d- a80100e2c1a8 (last accessed: 09 October 2017).

196

The core meaning of the rule of law and democracy may also be derived from other provisions of primary EU law, secondary EU legislation, policies and guidance, as well as the case-law of the ECJ.633 It has been highlighted such an understanding is evidenced in the way the European Commission has, recently, applied the concepts of democracy and rule of law in dealing with reforms by the Polish government to their own national legal system.634

Over the past few years, the Polish legislative and executive branches have adopted a number of laws designed to reform the judicial system. These reforms have allowed both the legislative and executive to make changes to the composition, powers, administration and functioning of the judiciary.

According to the European Commission the reforms pose a “clear risk of a serious breach of the rule of law”.635 It is argued this is because the nature of the reforms threatens the independence of the judiciary. The European

Commission has confirmed judicial independence is: “…a value that reflects

633 Laurent Pech, Erik Wennerström, Vanessa Leigh, Agnieszka Markowska, Linda De Keyser, Ana Gómez Rojo, and Hana Spanikova, ‘An EU mechanism on democracy, the rule of law and fundamental rights – Annex I: An EU mechanism on democracy, the rule of law and fundamental rights’ (2016) European Parliamentary Research Service 1, 13 and 35.

634 Carlos Closa, ‘Blog - Catalan secessionism faces the European Union’ (07 October 2017). Available at: http://verfassungsblog.de/catalan-secessionism-faces-the-european-union/ (last accessed: 08 January 2018). 635 European Commission, ‘Press Release - Rule of Law: European Commission acts to defend judicial independence in Poland’ (20 December 2017). Available at: http://europa.eu/rapid/press-release_IP-17-5367_en.htm (last accessed: 07 February 2018). For a full and comprehensive report, see: European Commission, ‘Reasoned Proposal in accordance with Article 7(1) of The Treaty on European Union regarding The Rule of Law in Poland. Proposal for a Council Decision on the determination of a clear risk of a serious breach by the Republic of Poland of The Rule of Law’ (20 December 2017) COM (2017) 835 final 1, 2 - 15. Available at: file:///C:/Users/Richard%20Brant/AppData/Local/Packages/Microsoft.MicrosoftEdge_8wekyb 3d8bbwe/TempState/Downloads/1_EN_ACT_part1_v33pdf.pdf (last accessed: 07 February 2018).

197 the concept of European democracy”.636 Judicial independence is, of course, a prerequisite to the rule of law. According to the European Commission: “It is up to Poland to identify its own model for its justice system, but it should do so in a way that respects the rule of law; this requires it to safeguard the independence of the judiciary, separation of powers and legal certainty.”637

Consequently, despite the European Commission having attempted to create a ‘Rule of Law dialogue’ with the Polish authorities, they failed to act upon the recommendations of the European Commission to remedy the situation.638

Accordingly, the European Commission took enforcement action against the

Polish government, under Article 7(1) TEU, in order to uphold the rule of law.639

Whilst the Polish authorities invoked democracy and national sovereignty in defence of such reforms, the European Commission made it clear the existence of an electoral majority in support of such reforms does not permit a violation of the rule of law or fundamental human rights. By way of an analogy, it is possible to make the argument that a unilateral secession, even though achieved through democratic means and on the basis of a majoritarian

636 European Commission, ‘Press Release - Rule of Law: European Commission acts to defend judicial independence in Poland’ (20 December 2017). Available at: http://europa.eu/rapid/press-release_IP-17-5367_en.htm (last accessed: 07 February 2018). 637 Ibid. 638 European Commission, ‘Press Release - Rule of Law: Commission issues recommendation to Poland’ (27 July 2016). Available at: http://europa.eu/rapid/press-release_IP-16-2643_en.htm (last accessed: 07 February 2018); European Commission, ‘Press Release - Rule of Law: Commission discusses latest developments and issues complementary Recommendation to Poland’ (27 July 2016). Available at: http://europa.eu/rapid/press-release_IP-16-4476_en.htm (last accessed: 07 February 2018), and; European Commission, ‘Press Release - European Commission acts to preserve the rule of law in Poland’ (26 July 2017). Available at: http://europa.eu/rapid/press-release_IP-17-2161_en.htm (last accessed: 07 February 2018). 639 European Commission, ‘Press Release - Rule of Law: European Commission acts to defend judicial independence in Poland’ (20 December 2017). Available at: http://europa.eu/rapid/press-release_IP-17-5367_en.htm (last accessed: 07 February 2018).

198 democratic will, would have to satisfy the legality test under the rule of law.640

As it has also been noted:

“As an inherent element of democracy, the rule of law therefore

indicates that the will of the majority has clear and certain limits, not

only in the form of universal human rights, but also in relation to the

constitutional framework of a state”.641

Furthermore, an understanding of how both the concepts of the rule of law and democracy relate to each other and apply in practice can be seen in the way the Union has approached claims to recognition of new states in Europe.

Following the dissolution of Yugoslavia and the international recognition of the break-up, the EU issued guidelines on the recognition of new states in Eastern

Europe and the Soviet Union. Whilst the guidelines did not acknowledge a right to unilateral secession642, they insisted on respect for democracy and the rule of law.643 For secession to be legitimate, a seceding entity would need to hold a referendum and gain the consent of the parent state.644 The Code of Good

Practice on Referendums, adopted by the Venice Commission, clarifies when

640 Carlos Closa, ‘Blog - Catalan secessionism faces the European Union’ (07 October 2017). Available at: http://verfassungsblog.de/catalan-secessionism-faces-the-european-union/ (last accessed: 08 January 2018). 641 Democracy Reporting International, ‘International consensus: essential elements of democracy’ (2011), 12. Available at: www.concernedhistorians.org/content_files/file/TO/333.pdf (last accessed: 17/06/2018). 642 Hurst Hannum, ‘Re-thinking Self-Determination’ [1993] 34(1) Virginia Journal of International Law 1, 53 - 57. 643 Council of the European Communities, Declaration of the Twelve on guidelines referring to recognition of new states in Eastern Europe and the Soviet Union (Extraordinary Ministerial Meeting), CPE, Brussels, 16 (16 December 1991), at paras. 2 and 3, and; American Society of International Law, ‘European Community: declaration on Yugoslavia and on the guidelines on the recognition of new states’ (1992) 31(6) International Legal Materials 1485, 1487. 644 Antonio Cassese, Self-determination of Peoples: A Legal Reappraisal (Cambridge University Press 1996), 272.

199 a referendum should be accepted as legitimate.645 For example, a referendum must be carried out in accordance with the rule of law and cannot be held when a Constitution does not provide for one.646 This further reinforces the view that both democracy and the rule must be taken and read together.

It is clear democracy and the rule of law accompany each other in a number of legal documents and political declarations.647 Notably, in the pre-accession process, and in the application of the ‘Copenhagen criteria’ for new Member

States, the European Commission has ‘fused’ the requirements or political conditions of democracy and the rule of law required to be satisfied by the candidate country.648 Thus, both concepts were applied together by the

European Commission and they do not appear to have been formally separated. According to other European legal texts and organisations, such as the Preamble to the Statute of the Council of Europe, the rule of law is

645 As noted in Jessica Almqvist, ‘EU and the recognition of states’, at 129 (Kindle edition) in Changing Borders in Europe (Routledge 2019) and Alberto López-Basaguren, ‘Claims for Secession in Catalonia. Rule of Law, Democratic Principle and Federa Alternative’ in Alberto López-Basaguren and Leire Escajedo San-Epifanio, Claims for Secession and Federalism (Springer 2019), 379. 646 European Commission For Democracy Through Law (Venice Commission), ‘Code of Good Practice on Referendums’, adopted by the Council for Democratic Elections at its 19th meeting (20 January 2009), 12 and 20. Available at: http://www.e-democracy.md/files/elections/venice- code-good-practice-referendums-17-03-2007-en.pdf. The Explanatory Memorandum also confirms the same principles of good practice (see paras. 26 and 34) and, in particular, at para. 32 states that: “referendums within federated or regional entities must comply with the law of the central State”. This was also reaffirmed in the Opinion on the Referendum in Crimea (2014) at para. 17. 647 Dimitry Kochenov, EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in the Fields of Democracy and the Rule of Law: Pre-Accession and the Rule of Law (Kluwer Law International 2008), 113. 648 Dimitry Kochenov, ‘Behind the Copenhagen façade. The meaning and structure of the Copenhagen political criterion of democracy and the rule of law’ (2004) 8(10) European Integration online Papers 1, 11 – 13 and 23. Available at: http://www.eiop.or.at/eiop/pdf/2004- 010.pdf (last accessed: 25 June 2018). Dimitry Kochenov, EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in the Fields of Democracy and the Rule of Law: Pre-Accession and the Rule of Law (Kluwer Law International 2008), 87 - 88 and 113.

200 considered to be a principle which forms the basis of democracy649 and, according to the Council of Europe (Venice Commission): “The rule of law in its proper sense is an inherent part of any democratic society ...”650

Furthermore, according to the Charter of Paris: “Democracy has as its foundation respect for the human person and the rule of law”651 and as affirmed in the Organization for Security and Co-operation in Europe ‘Copenhagen commitments’: “democracy is an inherent element of the rule of law”.652

The EU Treaties themselves are silent on the relationship between democracy and the rule of law, although there appears to be an accepted hierarchy or, at the very least, an accepted understanding, in practice, on the relationship between the rule of law and democracy by the European Commission. They are considered to be interconnected and co-dependent. The essential conditions and requirements of one cannot be understood without the other.

Thus, it has been said that:

“…the Catalan Independence movement has established a

conception of the democratic principle that does not correspond to

649 Statute of the Council of Europe (1949). Available at: https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680306052 (last accessed: 18 June 2018). 650 The European Commission for Democracy through Law (Venice Commission), ‘Report on the Rule of Law’ (04 April 2011) Adopted by the Venice Commission at its 86th plenary session CDL-AD (2011) 003 rev, 5 (para. 16). Available at: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2011)003rev-e (last accessed: 25 September 2016). 651 Charter of Paris for a New Europe (1990) 1, 3. Available at: http://www.osce.org/mc/39516?download=true (last accessed: 18 June 2018). 652 Ibid, 3 (para. 3). See, further: Ernest Easterly, ‘The Rule of Law and the New World Order’ (1995) 22(2) Southern University Law Review 161, 165 – 166.

201

the configuration of a constitutional democracy based upon the

principles of popular and federal sovereignty … a conception, in

essence, that would make it possible not to respect the limits

established by the rule of law, contradicting, thus, the idea of

democratic system that prevails in European democracies”.653

6.3.4 The legal consequences of (consensual) secession

Whilst the Union must respect that secession is something that only Member

States can regulate according to their own constitution/legal system, the secession of a region/territory from a Member State would involve an externalisation of its effects onto the EU. The most obvious consequence or legal implication of secession is a loss of EU membership, although there are a number of other consequences/legal implications that would affect the internal functioning of the EU. 654 In what follows, I examine the issues that would need to be considered in the case of a consensual secession.

The UK (and its constituent parts) withdrew from the EU on 31 January 2020.

The EU Treaties are silent on the legal consequences of secession and especially unilateral secession, vis-à-vis a (purported) states future relationship with and/or membership of the EU. Whilst the Treaties do contain procedures and mechanisms that can be drawn on, by way of an analogy, to deal with certain procedural consequences of secession, it is not explicitly

653 Alberto López-Basaguren, ‘Claims for Secession in Catalonia. Rule of Law, Democratic Principle and Federa Alternative’ in Alberto López-Basaguren and Leire Escajedo San-Epifanio, Claims for Secession and Federalism (Springer 2019), 380. 654 Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 242 - 245.

202 acknowledged in the Treaties whether, or what, adjustments or amendments to the Treaties would have to be made. However, reference can be made to existing provisions (including relevant secondary EU law), in order to understand the necessary adjustments that would need to be made to the EU’s internal functioning in the case of the addition of a new member state. These can be applied to a case of secession, such as with respect to: (i) representation and voting arrangements for existing states in the EU’s political institutions i.e. the composition of the Commission, the redistribution of seats in the European Parliament and allocation of votes in the Council; (ii) adoption of the Euro; (iii) the number of ECJ judges; (iv) the question over whether civil servants employed by EU institutions, bodies and organs would retain their positions in the event they choose the nationality of the region concerned, and;

(v) the EU budget and allocation of contributions.

The Treaty Concerning the Accession of Croatia to the EU is indicative of the amendments that must be made to the EU Treaties to facilitate/accommodate the accession of a new state, such as, for example, changes to the number of judges in the ECJ and board of directors of the European Investment Bank.

Of course, as the number of seats in the European Parliament is currently limited to 751, should a seceding entity accede to the EU, new seats cannot simply be added to the total. There would need to be a transfer and redistribution of seats, instead. Following the UK’s withdrawal from the EU on

31 January 2020, there has been a revised composition, to take into account the 73 vacant seats. The agreed composition means that degressive proportionality remains, no Member State loses seats, although some Member

203

States have gained seats (27 seats have been redistributed amongst 14

Member States) and the total number of seats is limited to 705 (46 seats have been reserved for future enlargements).655

How the Union approaches a seceding entity’s request for membership could also have an important and significant effect on its absorption or integration capacity and ability to accommodate new Member States. Perhaps the most obvious consequence of secession is a loss of EU membership. Whilst this is not foreseen in Article 49 TEU, provided that a seceding entity achieved its independence legitimately and met the necessary conditions for membership under Article 49 TEU, this mechanism provides a route to EU membership.

However, there is still disagreement surrounding the procedural basis by which a seceding entity may re-join the EU, as outlined in chapter four, above. This thesis mainly focuses on consensual secession. However, it is not clear whether a region/territory that sought to unilaterally secede without the consent of its parent state, would be excluded sine die from applying for membership of the EU, which it would also be valuable to consider at this juncture.

6.3.4.1 The relationship between unilateral secession and

EU membership

It is not clear in the EU Treaties whether there exists a legal duty or obligation on the EU to negotiate/facilitate a seceding entity’s accession to the EU, as

655 European Parliament, ‘Redistribution of seats in the European Parliament after Brexit’ (31 January 2020). Available at: https://www.europarl.europa.eu/news/en/press- room/20200130IPR71407/redistribution-of-seats-in-the-european-parliament-after-brexit (last accessed: 12 July 2020).

204 well as a duty not to recognise a unilateral declaration of independence, owing to a Member States’ duty of sincere or loyal cooperation in Article 4(3) TEU.

Member States may have a legal duty not to recognise a unilateral declaration of independence. This is owing to a Member States’ duty of sincere or loyal cooperation in Article 4(3) TEU, which requires (in its negative formulation) that: “The Member States shall…refrain from any measure which could jeopardise the attainment of the Union's objectives”. A unilateral secession would violate the principle of respect for the territorial integrity of states in

Article 4(2) TEU.

Whilst unilateral secession would breach the rule of law in Article 2 TEU, the democratic principle appears to provide support for unilateral secession. It is argued this is because Article 2 TEU provides a seceding entity with the right to determine its political future. The European Commission and European

Parliament recently refused to recognise Catalonia, as an independent sovereign state, following its unilateral declaration of independence from

Spain. They declared its secession to be unlawful and in breach of the rule of law. Even if the President of the Generalitat, Mr. Puigdemont, had not suspended the effects of the unilateral declaration of independence, an international organisation (and its executive branch), including the EU, could not have recognised the nascent state, as recognition is a prerogative of states themselves. Under Article 49 TEU, accession is only open or available to

‘European states’. Therefore, the applicant or candidate country must, first and foremost, be a state. Prima facie, according to the Union’s political institutions, this would seem to exclude Catalonia, indefinitely or permanently,

205 from membership of the EU. This is because it is expected a break-away region that had achieved its independence unlawfully would never be recognised as a state. However, this would only be true to the extent that at some point in the future a negotiated settlement granting Catalonia independence is reached. This is something that is foreseen at present, but technically there is nothing in Article 49 TEU or the Treaties in general that could stop Catalonia from becoming an EU Member State. The longstanding position of the EU’s political institutions has been that upon the secession of part of an existing Member State, a break-away region would cease to be a member of the EU and would have to apply to join the EU via Article 49 TEU.

The current position of the Union’s political institutions, therefore, appears to be vague and incoherent. The Union’s political institutions need to clarify whether such a stipulation includes or excludes cases of unilateral secession.

This may, however, be open to interpretation based on whether a constitutive or declaratory theory of recognition is adopted. Traditionally, state recognition is seen through the lens of either the constitutive or declarative theory.

According to the constitutive theory, recognition is pre-requisite before a state can actually be regarded as having international legal personality whereas, according to declaratory theory, recognition itself is merely a political act, recognising a pre-existing factual situation or state of affairs.656 According to the declaratory theory, therefore, a newly formed state arising out of a process

656 Martin Dixon, Robert McCorquodale and Sarah Williams, Cases and Materials in International Law (Oxford University Press 2011), 158 and 193 and Malcolm Shaw, International Law (Cambridge University Press 2008), 207.

206 of unilateral secession is still prima facie a state.657 Indeed, according to one author:

“the collectively non-recognized States may be “illegal states” [but]

they are nevertheless still “States” …”.658

The EU must address declarations of independence by seceding entities, as part of its external relations policy. In that respect, it has been argued the EU should refrain from recognising the independence of a (purported) state that does not have the consent of its parent state to secede.659 This approach was reflected in a joint statement, for example, issued by, both, the President of the

European Council and European Commission following the unilateral declaration of independence by the Republic of Crimea from Ukraine: “The sovereignty, territorial integrity and independence of Ukraine must be respected. The European Union does neither recognise the illegal and illegitimate referendum in Crimea nor its outcome. The European Union does not and will not recognise the annexation of Crimea and Sevastopol to the

Russian Federation”.660

657 Jure Vidmar, Democratic Statehood in International Law: The emergence of New States in Post-Cold War practice (Hart Publishing 2013), 45. 658 Stefan Talmon, The Constitutive versus the Declaratory Doctrine of Recognition: Tertium Non Datur? (2004) British Yearbook of International Law 101, 125. 659 Steve Peers, ‘Blog - Homage to Catalonia? EU law and independence movements’ (29 September 2015). Available at: http://eulawanalysis.blogspot.co.uk/2015/09/homage-to- catalonia-eu-law-and.html (last accessed: 09 May 2017). 660 Joint statement on Crimea by the President of the European Council, Herman Van Rompuy, and the President of the European Commission, José Manuel Barroso (18 March 2014). Available at: http://europa.eu/rapid/press-release_STATEMENT-14-74_en.htm (last accessed: 22 July 2018).

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Whilst the European Commission has declared unilateral secession to be in breach of the rule of law661, the Commission has also stated it is only interested in taking action against systematic threats to the rule of law:

“… in situations where the authorities of a Member State are taking

measures or are tolerating situations which are likely to

systematically and adversely affect the integrity, stability or the

proper functioning of the institutions and the safeguard mechanisms

established at national level to secure the rule of law. The new EU

Rule of Law Framework is not designed to be triggered by individual

breaches of fundamental rights or by a miscarriage of justice...”662

It has been suggested the Commission could start infringement action by

‘bundling together’ a number of individual or separate alleged violations in order to demonstrate a pattern of state practice and present a case before the

CJEU by showing that those violations demonstrate a systemic and persistent pattern of non-compliance with the EU’s fundamental values in Article 2

TEU.663 Whilst non-compliance with only one of the values listed in Article 2

661 European Parliament, ‘EP Plenary session: Constitution, rule of law and fundamental rights in Spain in the light of the events of Catalonia. Closing statement by Frans Timmermans, First Vice-President of the EC (15:56 – 16:00)’. Available at: http://audiovisual.europarl.europa.eu/Assetdetail.aspx?id=44848d82-9c5d-4bd2-ab96- a80200e838f3 (last accessed: 09 October 2017), and; European Parliament ‘European Parliament President statement on the situation in Catalonia’ (27 October 2017). Available at: http://www.europarl.europa.eu/the-president/en/newsroom/european-parliament-president- statement-on-the-situation-in catalonia?webaction=view.acceptCookies (last accessed: 31 October 2017). 662 European Commission, ‘Communication from The Commission to the European Parliament and The Council - A new EU Framework to strengthen the Rule of Law’ COM (2014) 158 final/2, 1, 6 - 7. Available at: http://ec.europa.eu/transparency/regdoc/rep/1/2014/EN/1-2014-158-EN- F1-1.Pdf (last accessed: 03 December 2019). 663 See, in particular, Kim Lane Scheppele, ‘The Case for Systematic Infringement Actions’ in Carlos Closa and Dimitry Kochenov, Reinforcing the Rule of Law Oversight in the European Union (Cambridge University Press, 2016), 107 – 108, 112 – 114 and 131 - 132, and; Laurent

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TEU would be required to establish a breach664, the Commission’s approach with respect to breaches of the rule of law, may appear to suggest that an individual and isolated violation might not be enough to trigger enforcement action. However, it is likely a series of breaches of the rule of law would meet the required threshold. Notwithstanding that, if a break-away region gained its

(purported) independence unlawfully, the European Commission would, of course, be unable to start infringement proceedings against a region/territory that is not an EU Member State in its own right.

An applicant state, following a case of secession, must meet the rule of law criteria during the accession process. This is outlined in Article 2 TEU and the

‘Copenhagen criteria’ for accession.665 The need to satisfy these requirements would present an opportunity to call into question the manner in which a state achieved its independence. Some doubt has been expressed over whether a seceded entity could be admitted to the EU if a state’s newly-formed independence had violated the rule of law, which it would be required to satisfy prior to becoming a Member State.666 Even before that stage is reached, a

Pech and Sébastien Platon, ‘Rule of Law backsliding in the EU: The Court of Justice to the rescue? Some thoughts on the ECJ ruling in Associação Sindical dos Juízes Portugueses’ Blog - EU Law Analysis (13 March 2018). Available at: http://eulawanalysis.blogspot.co.uk/2018/03/rule-of-law-backsliding-in-eu-court-of.html (last accessed: 04 April 2018). 664 Stelio Mangiameli, ‘Article 2 [The Homogeneity Clause]’, at 112, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 665 According to point 7. (A) iii) of the ‘Copenhagen criteria’: “Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities…”. See: The ‘Copenhagen Criteria’: European Parliament, ‘Presidency Conclusions - Copenhagen European Council – 21 - 22 June 1993’. Available at: http://www.europarl.europa.eu/enlargement/ec/pdf/cop_en.pdf (last accessed: 09 March 2018). 666 Carlos Closa, ‘Troubled Membership: Dealing with secession from a member state and withdrawal from the EU’ (2014) Robert Schuman Centre for Advanced Studies Research Paper No. 91 1, 6 and Carlos Closa, ‘Changing EU internal borders through democratic means’ (2017) 39(5) Journal of European Integration 515, 517. See also: Susanna Fortunato, ‘Article 49

209 break-away region would, according to the terms of Article 49 TEU, need to be recognised by all other Member States as a ‘European State’; this would necessarily exclude regional or local communities that are a part of an existing

Member State from applying to join the EU.667

State recognition is a condition sine qua non to joining the EU. The EU does not actually have the power or legal competence to recognise states. This is a prerogative of states themselves.668 Nonetheless, on the basis of guidelines, legal opinions and joint statements, the EU can influence its Member States’ foreign policy. International and regional organisations, such as the EU, play a significant role in this respect.669 The EU’s ability to formulate a common policy position on state recognition is a power conferred onto it by Member

States. Recognition of a claim to independence by EU Member States would grant a break-away region international legal personality670 and allow it to attain the rights and powers of statehood. The objective criteria that need to be satisfied for an entity to be classed as a state671 are distinct from the

[Accession to the Union]’, at 1360, in Hermann-Josef and Blanke Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 667 Susanna Fortunato, ‘Article 49 [Accession to the Union]’, at 1359, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 668 Thomas Gant, Aggression against Ukraine: Territory, Responsibility, and International Law (Palgrave Macmillan 2015), 204. See further: European Parliament, ‘Parliamentary Questions – Answer given by the High Representative/Vice-President Ashton on behalf of the Commission’ (24 October 2014): “The EU does not have the competency to recognise states, only individual member states do. So far no state has recognised the region of Somaliland as a state.” Available at: http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2014- 006540&language=EN (last accessed: 22 July 2018). 669 Edward Newman and Gëzim Visoka, ‘The European Union’s Practice of State Recognition: Between Norms and Interests’ (2018) 44(4) Review of International Studies 760, 768 and 780 – 781. 670 James Crawford, The Creation of States in International Law (2nd ed., Oxford University Press 2007), 29. 671 Article 1 of The Montevideo Convention on the Rights and Duties of States (1933).

210 process of recognition, which is widely regarded as a political act.672

Importantly, therefore, a region or territory must be recognised by other states to become an independent sovereign state: “…since a new State cannot exercise rights and obligations against States that do not recognize it”.673

The presence of unanimity is not required as a part of the process of state recognition674, but it is required in order to conclude an Accession Treaty. As such, even if a new state did gain recognition, Member States are permitted to exercise their right of veto and to refuse to admit a state which does not comply with the values of the EU. The consent of a parent state appears to be a crucial factor in determining the outcome of recognition and a break-away region’s membership of the EU. Ultimately, however, significant economic considerations may actually force a parent state to agree to the admission of a newly independent state, in any event.675 This would put significant pressure on Spain to accept Catalonia as an EU Member State, for example, even if

Catalonia did break-away unilaterally. It is also of note the approach of the

EU’s political institutions (the European Commission, in particular), when it

672 James Crawford, The Creation of States in International Law (2nd ed., Oxford University Press 2007) 1, 29 and David Harris, Cases and Materials on International Law (Sweet & Maxwell 2010), 131. 673 Lassa Oppenheim, International Law (4th edn., Oxford University Press 1928), 144. 674 A state may be recognised by some states, but not others. States may be under a legal obligation not to recognise a state in international law (Jure Vidmar, Democratic Statehood in International Law: The emergence of New States in Post-Cold War practice (Hart Publishing 2013), 44), but are not under a legal obligation to recognise another state, owing to the political nature of the act of recognition, see: Hans Kelsen, General Theory of Law and State (Russell & Russell 1961), 223; Krystyna Marek, Identity and Continuity of States in Public International Law (Librairie Droz 1968), 137; Stefan Talmon, The Constitutive versus the Declaratory Doctrine of Recognition: Tertium Non Datur? (2004) British Yearbook of International Law 101, 103. Indeed, this is a limitation of the constitutive theory on state recognition, see: J Briely, The Law of Nations (Clarendon Press 1963), 138. 675 Simone van den Driest, ‘Secession within the Union: Some Thoughts on the Viability of EU Membership’ in Catherine Brölmann and Thomas Vandamme (eds.) Secession within the Union: intersection points of international and European law: collected think pieces (Amsterdam Center for International Law 2014) 1, 29.

211 comes to assessing a candidate country’s compliance with the accession criteria, is said to vary widely, and lack strict assessment parameters. This has led to inconsistent results. In particular, the European Commission has been criticised for placing a greater emphasis on economic criteria, above the principles of democracy and the rule of law.676

It is interesting to note during accession negotiations with a candidate country, that the Council has the power to suspend negotiations in the case of: “a serious and persistent breach of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law”.

Notwithstanding this, the Council must ensure: “…if the Candidate State is not in a position to assume in full all the obligations of membership it must be ensured that the Candidate State concerned is fully anchored in the European structures through the strongest possible bond”.677 Indeed, the Council has the power (on the basis of a qualified majority) to: “recommend the suspension of negotiations and propose the conditions for eventual resumption”.678 Thus, it is possible to deduce from this, that if there were a breach of the rule of law, during accession negotiations, that such a breach would not be a bar to continued or future EU membership. A fortiori, the same reasoning could also apply to any breach of the Union’s values prior to a state’s application for accession. In other words, a breach of the rule of law arising out of a unilateral

676 Susanna Fortunato, ‘Article 49 [Accession to the Union]’, 1361 - 1363 and 1366, in Hermann- Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 677 Council of the European Union, ‘Presidency Conclusions – Brussels European Council 16/17 December 2004’ (17 December 2004), 7 - 8 (point 23). Available at: http://eeas.europa.eu/archives/docs/drugs/docs/december_2004_en.pdf (last accessed: 09 March 2018). 678 Ibid, 7 - 8 (point 23).

212 secession might not amount to exclusion from EU membership sine die.

However, such a breach would have occurred before an application for EU membership/accession, and not during it, which is a key difference to note and one which might necessitate a different response.

The EU, as a regional organisation, has taken an ad hoc, case-by-case and pragmatic approach to recognition, based on a number of considerations.

Internal considerations include, for example, the degree of intergovernmental consensus, as well as the presence of a strong advocate state able to generate consensus within the EU. External considerations include, for example, situational circumstances and geopolitical interests, such as the modality of state creation and whether independence was achieved peacefully or not, the need for conflict de-escalation and regional security.679 The development of a pragmatic approach has its origins in the EC’s response to the claims of recognition for statehood following the collapse of the Soviet Union and the conflict in Yugoslavia. The prevailing approach is defined by a policy of recognition based on a need to ensure peace and security in Europe.680 This is reflected in the EC Guidelines on the Recognition of New States in Eastern

Europe and the Soviet Union (1991). The EU has had to strike a balance between: “…its commitment to promote human rights and engage with communities…and its commitment to international order based upon territorial

679 Edward Newman and Gëzim Visoka, ‘The European Union’s Practice of State Recognition: Between Norms and Interests’ (2018) 44(4) Review of International Studies 760, 766; Jessica Almqvist, ‘EU and the recognition of states’, at 129 - 132 (Kindle edition) in Changing Borders in Europe (Routledge 2019). 680 Jessica Almqvist, ‘EU and the recognition of states’, at 129 – 130 (Kindle edition), in Changing Borders in Europe (Routledge 2019); Jure Vidmar, Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice (Hart Publishing 1993), 86 – 89.

213 integrity.”681 Interestingly, a policy of recognition based on the need to preserve peace and security within the EU, in cases borne out of an internal conflict or struggle, actually conflicts with need for the EU to respect the territorial integrity of its Member States in Article 4(2).682 Thus, European soft law guidance/policy on the recognition of new states, which constitutes secondary EU law, conflicts with primary EU law in the Treaties. The responses from/within the EU have ranged from collective recognition, bilateral recognition (decisions by individual EU Member States) and collective non- recognition. At an EU-level, collective recognition of states is favoured683 and bilateral recognition is only accorded in exceptional circumstances.684 It is reported that. following the break-up of states, since the early 1990’s, the

EC/EU has granted collective recognition to 26 states, withheld collective recognition from nine (purported) states and, in relation to two cases, Member

States have taken their own individual policy position.685

A number of cases serve to highlight the response of the EC/EU in relation to cases of (unilateral) secession outside of the EU. As already noted, there have been no cases of secession from an existing Member State of the EU, apart from the recent attempted (unilateral) secession of Catalonia from Spain. The

681 Edward Newman and Gëzim Visoka, ‘The European Union’s Practice of State Recognition: Between Norms and Interests’ (2018) 44(4) Review of International Studies 760, 761. 682 Jessica Almqvist, ‘EU and the recognition of states’, at 131 (Kindle edition). in Changing Borders in Europe (Routledge 2019). 683 John Dugard and David Raic, ‘The role of recognition in the law and practice of secession’, at 99, in Marcelo Kohen, Secession: International Law Perspectives (Cambridge University Press 2006). 684 Ibid, 137. 685 Edward Newman and Gëzim Visoka, ‘The European Union’s Practice of State Recognition: Between Norms and Interests’ (2018) 44(4) Review of International Studies 760, 765.

214 declaration of independence by the Republic of Crimea in Ukraine was considered unconstitutional, as it was in breach of the Ukrainian Constitution.

The European Commission declined to accept the declaration of independence as legitimate.686 Nonetheless, the Union’s political institutions remain committed to paving the way for Ukraine’s membership of the EU.687

Kosovo’s unilateral declaration of independence and secession from Serbia provides another example. To-date, 23 out of 28 EU Member States, 34 out of

47 Council of Europe Member States, 111 out of 193 UN Member States have recognised Kosovo as an independent sovereign state and 24 out of 28 NATO

Member States (Cyprus, Greece, Romania, Slovakia and Spain have all refused to recognise Kosovo’s declaration of independence).688 The EU adopted a joint statement on the unilateral declaration of independence by

Kosovo, noting that each Member should decide whether to recognise Kosovo in accordance with national practice and international law.689 Despite its non- recognition by several EU Member States, the EU has been engaged in the process of the region’s stabilisation, reconstruction and preparation for membership and has, recently, concluded an association agreement with

686 European Commission, ‘Joint statement on Crimea by the President of the European Council, Herman Van Rompuy, and the President of the European Commission, José Manuel Barroso’ (18 March 2014). Available at: http://europa.eu/rapid/press-release_STATEMENT-14- 74_en.htm (last accessed: 25 October 2016). 687 Europa, ‘Statement by EU High Representative Catherine Ashton on Ukraine’ (21 November 2013). Available at: http://eeas.europa.eu/statements/docs/2013/131121_04_en.pdf (last accessed: 25 October 2016), and; Europa, ‘European Council conclusion on Ukraine (21/03/2014)’, at para. 5. Available at: http://eeas.europa.eu/delegations/ukraine/press_corner/all_news/news/2014/2014_03_21_02_ en.htm (last accessed: 25 October 2016). 688 Council of Europe, Parliamentary Assembly - The situation in Kosovo and the role of the Council of Europe (Resolution 2094 (2016)). Available at: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=22499 (last accessed: 02 December 2018. 689 General Affairs and External Relations Council, Conclusions of the Council on Kosovo (Brussels 18 and 19 February 2008). Available at: http://europa.eu/rapid/press-release_PRES- 08-41_en.htm (last accessed: 24 April 2018).

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Kosovo to that end.690 The Union’s political institutions are still committed to paving the way for Kosovo’s membership of the EU.691 The EU has promised

Kosovo the prospect of eventual membership in the EU upon satisfaction of various political and economic criteria. Kosovo is currently recognised as a potential candidate for accession. Thus, the EU’s approach with respect to

Kosovo is said to impliedly recognise Kosovo’s independence: ‘through a policy of engagement without recognition’.692 The EC also recognised a number of former republics of the Socialist Federal Republic of Yugoslavia, namely, Slovenia, Croatia, Bosnia and Herzegovina, and Macedonia).

Importantly, recognition occurred despite the consent of the federal institutions of the Socialist Federal Republic of Yugoslavia to secession.693

In the event a seceding entity failed to gain international state recognition but wished to join the EU, a purported state’s route to membership of the EU may, therefore, just be delayed or postponed, as opposed to denied indefinitely or permanently. This could be until such time as it can demonstrate compliance with the EU’s values, or the parent state consents to/no longer opposes its departure. During any such period, the country would be a potential candidate for membership. This process could be managed through pre-accession

690 European Commission, ‘Press Release - Stabilisation and Association Agreement (SAA) between the European Union and Kosovo enters into force’ (1 April 2016). Available at: http://europa.eu/rapid/press-release_IP-16-1184_en.htm (last accessed: 17 March 2017). 691 See, most recently: European Commission, ‘Communication from The Commission to The European Parliament, The Council, The European Economic and Social Committee and The Committee of the Regions - A credible enlargement perspective for and enhanced EU engagement with The Western Balkans’ COM(2018) 65 Final. Available at: https://ec.europa.eu/commission/sites/beta-political/files/communication-credible-enlargement- perspective-western-balkans_en.pdf (last accessed: 08 February 2018). 692 Edward Newman and Gëzim Visoka, ‘The European Union’s Practice of State Recognition: Between Norms and Interests’ (2018) 44(4) Review of International Studies 760, 774. 693 Richard Caplan and Zachary Vermeer, ‘The European Union and Unilateral Secession: The Case of Catalonia’ (2018) Uncorrected page proofs (cited with permission), 749.

216 assistance or by way of a Stabilisation and Association agreement, for example. This is the EU’s approach to the Western Balkan countries, in particular. This would serve as the basis for the implementation of the accession process, requiring a country to meet various goals/commitments, as set out by the European Commission, paving the way for eventual membership of the EU.694 If a seceding entity was not accepted into the EU, it could also try to arrange its relationship with the EU as a non-EU country, via an

Association Agreement695, for example, which would serve to pave the way for membership of the EU at a later stage.

Within the EU, there has only been one attempted case of secession. The secession of (a) part(s) of a Member State, that has simultaneously sought to retain its membership of the EU, as a new state, is unprecedented. Following the unilateral declaration of independence on 27 October, Catalonia did not gain recognition as an independent state. All states in their response expressed the view that the unilateral declaration of independence by

Catalonia was not legitimate and unlawful. They also confirmed their respect for the observance of the principle of the rule of law and the territorial integrity of states (this mirrors state practice in public international law696). For example, according to the Foreign Affairs Ministry in Bulgaria:

694 Dimitry Kochenov, ‘The Internal Aspects of Good Neighbourliness in the EU: Loyalty and Values’ (2015) University of Groningen Faculty of Law Research Paper Series No. 13 1, 16 - 18. 695 See Article 217 TFEU. 696 James Crawford, ‘State practice and International Law in relation to secession’ (1999) 69(1) British Yearbook of International Law 85, 115 - 116.

217

“Bulgaria respects the constitutional order of the Kingdom of Spain,

the rule of law and the principles of the rule of law as fundamental

values of the European Union (EU) and all its members. We support

the territorial integrity and sovereignty of Spain, which is our

strategic partner”.697

Scotland is a region and not a state (it could therefore not grant international recognition to Catalonia even if it wanted to), although the view of the Sottish

Government has, however, also called for respect for the countervailing principle of self-determination:

“We understand and respect the position of the Catalan

Government. While Spain has the right to oppose independence,

the people of Catalonia must have the ability to determine their own

future...”698

The Spanish government deposed the Catalan President, disbanded his administration and limited the powers of Catalonia’s regional parliament, thereby suspending Catalonia’s political autonomy.699 Thus, Catalonia was

697 The Republic of Bulgaria (Ministry of Foreign Affairs), ‘Position of the MFA: Bulgaria supports the territorial integrity of Spain’ (27 October 2017). Available at: http://www.mfa.bg/bg/events/6/1/6172/index.html (last accessed: 31 October 2017). 698 Scottish Government, ‘Statement on Catalonia – External Affairs Secretary comments.’ (27 October 2017). Available at: https://news.gov.scot/news/statement-on-catalonia-1 (last accessed: 31 October 2017). 699 This was carried out pursuant to Article 155 of the Spanish Constitution (1978).

218 not able to meet two of the key criteria for statehood: (i) the capacity to enter into relations with other sovereign states on its own free will, and; (ii) the requirement to be free from and not subject to the power and control of another state.700 Amendments to or the adoption of a new Catalan constitution would have been required to establish powers of ‘foreign affairs’ vested with the

Spanish central government.701 Catalonia was, therefore, not been able to formally seek membership of the EU as a ‘European state’. Therefore, the EU has not yet actually had to formally respond to a case of unilateral secession and simultaneous accession to the EU. Thus, according to one author: “…this scenario has not occurred, thus we are still at a preliminary stage, i.e. in the resolution phase of an internal question of a Member State…”.702

As it has been shown, above, a number of cases serve to illustrate the point that the EC/EU has been prepared to recognise the independence of break- away regions/territories, outside of the EU, but not within the EU.703 A number of reasons have been suggested to explain this difference in approach. The

Crimean and Kosovan cases did not involve regions that were formally a part of an EU Member State. A breach of EU values in these cases was therefore

700 Another author discusses these same points, amongst others, and in further detail: Marc Weller, ‘Blog - Secession and Self-determination in Western Europe: The Case of Catalonia’ EJIL: Talk! (18 October 2017). Available at: https://www.ejiltalk.org/secession-and-self- determination-in-western-europe-the-case-of-catalonia/ (last accessed: 03 July 2018). 701 Indeed, the Catalan Parliament had passed Catalonia’s Transition and Foundational Act 2017. See: Pau Busquets, ‘Obstacles and passages to secession in liberal-democratic contexts. Lessons from Catalonia’ (March 2018) Political Theory Working Paper No. 20 (University of Pompeu Fabra) 1, 12. Available at: https://repositori.upf.edu/handle/10230/34424 (last accessed: 11 July 2018). 702 Adoración Galera Victoria, ‘The Catalan Independence Movement in the Political and Constitutional Debate in the European Union’ in Alberto Lopez-Basaguren and Leire Escajedo San-Epifanio, Claims for Secession and Federalism (Springer 2019), 581. 703 Richard Caplan and Zachary Vermeer, ‘The European Union and Unilateral Secession: The Case of Catalonia’ (2018) Uncorrected page proofs (cited with permission), 749.

219 not at issue. Furthermore, the negative ‘precedential effect’ of granting recognition, following a case of unilateral secession, within the EU, is an important political factor setting these cases apart.704 Whist the prevailing approach is defined by a need to ensure security and peace in Europe705, the collective response of the Union does not consider that peace and security are always best served through the formation of new states or a change in its territorial borders.706 Indeed, recognising unilateral secession would go against respect for ensuring the territorial integrity of an existing Member State under Article 4(2) TEU. Arguably, such cases also justified a differentiated approach based on the facts giving rise to the claim to secession. The case of Kosovo, for example, represented a case of remedial secession. Indeed, it was made clear in the text of Kosovo's declaration of independence, itself, where it was stated that this was a sui generis case: “... Kosovo is a special case arising from Yugoslavia's non-consensual breakup and is not a precedent for any other situation”.707 As noted above, the approach of the EU has been ad hoc and pragmatic. This has been criticised, as it is argued it has led to disagreement, inconsistent results and arbitrary decisions708, which might provide a catalyst for new claims to independence.709 Of course, the principle of equality under the rule of law does not demand that all cases be treated

704 Ibid, at 761. See also Jessica Almqvist, ‘EU and the recognition of states’, at 134 (Kindle edition) in Changing Borders in Europe (Routledge 2019). 705 Jessica Almqvist, ‘EU and the recognition of states’, at 129 - 132 (Kindle edition) in Changing Borders in Europe (Routledge 2019). 706 Ibid, 137. 707 Kosovo Declaration of Independence (17 February 2008). Available at: http://www.assembly-kosova.org/?cid=2,128,1635 (last accessed: 23 October 2018). 708 Jessica Almqvist, ‘EU and the recognition of states’, at 137 (Kindle edition) in Changing Borders in Europe (Routledge 2019). 709 Ibid, 139.

220 equally, but it does require that reasons be given when treating similar cases differently.710

6.3.4.2 Article 4(3) TEU and opposing duties

As discussed in chapter five, it has been argued there exists a legal duty on the EU to negotiate/facilitate a seceding territories’ accession to the EU, which may also include a separate opposing legal duty not to recognise a unilateral declaration of independence, owing to a Member States’ duty of sincere or loyal cooperation in Article 4(3) TEU. A potential conflict is created when one considers the principle of sincere/loyal cooperation in light of national sovereignty, expressed through the right of a Member State to veto a decision.

Article 4(3) TEU would, arguably, mean there is a legal obligation on existing

EU Member States and the EU’s political institutions to enter into accession negotiations or conclude an Accession Treaty with a new state, arising out of the context of secession, and refrain from taking any action that might jeopardise the attainment of any of the EU’s objectives. For example, a refusal to recognise a legitimate consensual secession or accept a seceding entity as a candidate country for the purposes of accession, could affect the operation of the single market and EU citizen’s rights. In contrast to this, the right of a veto, which is an important expression of national sovereignty and which exists in areas of important decision-making in the Treaties, such as accession or amendment to/revision of the Treaties, entitles an existing Member State to veto a break-away region's accession to the EU. A Member State may do this

710 See, for example: Case C-303/05 Advocaten voor de wereld [2007] ECR I-3633, at para. 56.

221 for whatever reason it chooses. In any event, despite such an obligation, a

Member State is still entitled to veto a seceding entity’s accession to the EU, for whatever reason.711 For example, despite the Council granting the Former

Yugoslav Republic of Macedonia candidate status in 2005 (following the opinion of the Commission and consent of the European Parliament827),

Greece formally opposed FYR Macedonia’s accession to the EU, for a number of political reasons, including its name. This highlights the point that an existing state may veto a new accession for political reasons that have nothing to do with the EU’s general interests. Taking this to its fullest extent it is not hyperbolic to assert that: “…the veto could be ‘eternal’ or could last dozens of years, among other reasons because it is incongruent and nonsensical and, of course, disloyal to separate from an EU Member State and then want to return to the organisation of European unification”.712

Crucially, it is important to note a Member State could veto the accession of a new state, where that country was born out of a process of unilateral secession. Thus, it has been argued, according to the statespeoples sovereignty principle that: “…a moral claim for membership…does not trump the right of any existing member state to have final decision-making power over whether or not that claim is satisfied”713 and, in that respect, that a

711 Kenneth Armstrong, ‘After ‘Ever Closer Union’: Negotiating Withdrawal, Secession, and Accession’ (2014) 37 Fordham Journal of International Law 119, 126 - 127. 712 Araceli Mangas Martin, “La secesión de territorios en un estado miembro: efectos en el derecho de la unión europea” (2013) Revista De Derecho De La Unión Europea 49, at 65 – cited (and translated into English) in Alfonso González Bondia, "Legal scenarios for the European Union's relations with new states emerging from a secession process from a member state". Available at: http://perspectives-estat.espais.iec.cat/en/ (last accessed: 31 January 2018). 713 Joseph Lacey & Rainer Bauböck, ‘Enlargement, association, accession - a normative account of membership in a union of states’ (2017) 39(5) Journal of European integration 515, 525.

222 normative priority must be given to national sovereignty or self- determination.714 Representing the national governments of Member States, the European Council and the Council are the principal statespeoples’ institutions of the EU.715 Thus, statespeoples as opposed to EU citizens hold this power in the EU. The central tenet of this principle is that Member States retain the sole power over via unanimity voting in the Council, and should have the final say on, accession to and withdrawal from the EU in addition to its primary or constitutional law.716 This is because it would not be in the interests of national self-determination and it would be an unsatisfactory state of affairs for statepeoples to be subject to the majority will of other statespeoples.717 Put another way: “anything that might be construed as a European will… takes a distinct back seat to member state wills”.718 Moreover, from a Member State’s perspective, EU citizens (represented by their national governments) have a strategic interest in retaining the veto, strengthened by domestic rules on ratification.719

714 Antoinette Scherz, ‘Representation in multilateral democracy: How to represent individuals in the EU while guaranteeing the mutual recognition of peoples’ (2018) 23(6) European Law Journal 495, 499 - 500; Joseph Lacey & Rainer Bauböck, ‘Enlargement, association, accession - a normative account of membership in a union of states’ (2017) 39(5) Journal of European integration 515, at 527; Francis Cheneval, Sandra Lavenex, and Frank Schimmelfennig, Demoi-cracy in the European Union: principles, institutions, policies (2014) 22(1) Journal of European Public Policy 1, 2 – 4; Francis Cheneval and Frank Schimmelfennig, The Case for Demoicracy in the EU (2013) 51(2) Journal of Common Market Studies 334, 342, and; Alexander Trechsel ‘How to federalise the European Union…and why bother’ (2005) 12(3) Journal of European Public Policy 401, 406 and 409. 715 Joseph Lacey, Centripetal Democracy: Democratic Legitimacy and Political Identity in Belgium, Switzerland, and the European Union (Oxford University Press 2017), 119. 716 Ibid, 84. 717 Ibid, 84, 89 and 228. 718 Ibid, 100. 719 Christian Kirchner, ‘The unanimity rule revisited: the case of revisions of hybrid constitutions’ (2012) Public Choice 445, 446 – 447.

223

Any one Member State could veto the accession of a new state. There could also be a requirement for a national referendum and a vote by citizens. With the successive enlargement of the EU, over the years, there has been an increase in the total number of Member States and, therefore, the potential for a greater number of ‘veto players’.720 Whilst this goes against the principles and objectives of European integration, this principle is key to ensuring: “…fair terms of cooperation between citizens and statespeoples”.721 With respect to a veto, the government of a Member State might not want to encourage secessionism on its own territory, for example. However, as it has already been made clear, a Member State can veto a decision for any reason.722

A veto over a seceding entity’s application for membership may only be exercisable if it can be justified or issued under certain circumstances, such as with respect to a unilateral secession which it is demonstrated has breached

EU values in Article 2 TEU. It has been argued Member States may have a legal duty not to recognise a unilateral declaration of independence. However, such an obligation would not give a Member State an unfettered power. Thus, in this context, it would appear a veto is actually subject or amenable to some qualification and restraint. This is because, under the same principle, Member

States must refrain from taking any action that might jeopardise the attainment of the EU’s objectives. Moreover, action taken must be proportionate. For example, a refusal to recognise a legitimate consensual secession could affect

720 Joseph Lacey, Centripetal Democracy: Democratic Legitimacy and Political Identity in Belgium, Switzerland, and the European Union (Oxford University Press 2017), 89. 721 Ibid, 84 and 89. 722 Kenneth Armstrong, ‘After ‘Ever Closer Union’: Negotiating Withdrawal, Secession, and Accession’ (2014) 37 Fordham Journal of International Law 119, 126 - 127.

224 the operation of the single market and EU citizen’s rights. Article 4(3) TEU along with Article 50 TEU, which provides for a period of negotiation before the

Treaties cease to apply to a withdrawing state, both support this view.723

Notwithstanding this, there are sound normative arguments for retaining the requirement for unanimity amongst Member states.

A potential conflict is also created between Article 2 TEU, the Union’s duty to respect a Member State’s essential state functions and ensure the territorial integrity of that state and the principle of sincere/loyal cooperation in Article

4(3) TEU. Accordingly, it has been argued EU Member States would also be required to refuse to recognise a territory/region as a European state if it had gained its independence contrary to the constitutional requirements of a

Member State and, therefore, in breach of the rule of law.724 Consequently, this would prevent a break-away region from even applying for membership of the EU in the first place. As against the EU’s respect for democracy, in observance of the principle of sincere/loyal cooperation, the EU’s Member

States would be legally obliged not to recognise a seceding entity that had achieved its independence unilaterally, without the consent of its parent state.

723 Joseph Lacey & Rainer Bauböck, ‘Enlargement, association, accession – a normative account of membership in a union of states’ (2017) 39(5) Journal of European integration 515, 524; Carlos Closa, ‘Secession from a Member State and EU Membership: the View from the Union’ (2016) 12 European Constitutional Law Review 240, 250 - 251; Daniel Kenealy and Stuart MacLennan, ‘Sincere Cooperation, Respect for Democracy and EU Citizenship: Sufficient to Guarantee Scotland’s Future in the European Union?’ (2014) 20(5) European Law Journal 591, 599, and; Sionaidh Douglas-Scott, ‘How Easily could an independent Scotland join the EU’ (2014) University of Oxford Legal Research Paper Series 1, 14 – 16; Sionaidh Douglas-Scott, ‘Scotland, Secession and the European Union’ (2019) Queen Mary University Legal Studies Research Paper No. 301/2019 1, 5 – 6. 724 Jean-Claude, ‘Political and Legal Aspects of Recent Regional Secessionist Trends in some EU Member States (II)’, 89 - 91, and Cristina Fasone, ‘Secession & Ambiguous Place of Regions under EU law’, at 61 - 64, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017).

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There is a legal obligation upon Member States to comply with EU values, as well as ‘promote’ them (Article 3(1) TEU) and, when read together with Article

4(3) TEU, this could require Member States to refrain from taking any positive or negative action that would jeopardise the attainment of such an objective.725

In any event, the duty of sincere or loyal cooperation is not confined to areas falling within the field of EU law.

6.5 Norm conflict in the case-law and legal reasoning of the

ECJ

Of course, the interpretation and application of the Treaties is a task entrusted to the CJEU.726 It is said Article 2 TEU must be interpreted according to:

“…a theoretical contribution that obviously derives from the

scientific traditions of constitutional law and international law using

an interdisciplinary method together with the comparative method

… verifying which method best suits the European order from the

systematic viewpoint”.727

The traditions of scientific legal reasoning are premised on the belief that legal indeterminacy can be overcome by decisions based on rational justification,

725 Christophe Hillion, Editorial Comments, ‘Safeguarding EU values in the Member States – Is something finally happening?’ (2015) 52 Common Market Law Review 619, 621. 726 Article 19 TEU. 727 Stelio Mangiameli, ‘Article 2 [The Homogeneity Clause]’, at 118, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013).

226 legal rules, objectivity and clear and precise interpretative criteria.728 However, the choice of methods of treaty interpretation is not articulated in the EU

Treaties.729 The issue of norm conflict in the context of treaty interpretation is also under-articulated by the ECJ. For example, in France v High Authority of the European Coal and Steel Community:

“It is not for the Court to express a view as to the desirability of the

methods laid down by the Treaty, or to suggest a revision of the

Treaty, but it is bound in accordance with Article 31, to ensure that

[in] the interpretation and application of the Treaty as it stands the

law is observed.”730

Thus, the CJEU must adopt the method of interpretation that best serves the

EU legal order in a specific case.731 In cases where the Treaties may be indeterminate or silent, in order to justify a broad, maximalist or teleological interpretation of the Treaties, the ECJ has routinely turned to the ‘object, purpose and scheme’ of the Treaties or individual provisions of EU law in order

728 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 139 (Kindle Edition). 729 Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 24 and 26. Unlike international treaties (the EU, of course, represents a sui generis and separate legal order as made clear in the oft-cited case, Van Gen den Loos), which must be interpreted in line with the rules of interpretation outlined in Articles 31 - 33 in the Vienna Convention on the Law of Treaties (1969). 730 Case 1/54 France v High Authority of the European Coal and Steel Community [1954] ECR I, at 14. 731 Koen Lenaerts and José Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’ (2013) European University Institute - EUI Working Papers 1, 4. Available at: http://cadmus.eui.eu/bitstream/handle/1814/28339/AEL_2013_09_DL.pdf?sequence=1 (last accessed: 01 February 2018).

227 to fill-in gaps in the law.732 In France v High Authority of the European Coal and Steel Community, it was stated that one treaty provision should be read in light of the treaty overall.733 Moreover, according to CILFIT: “…each provision of Community law is to be seen in its context and interpreted in light of the set of provisions of this law, of is purposes and of its stage of development at the time in which the provision is applied”.734

Thus, EU law must be interpreted in light of its textual, purposive and temporal context. In that respect, regard must be had to both the internal context and external context of a treaty provision. The internal context of a treaty provision refers to the functional relationship between a provision and the overall system to which it belongs. The external context of a treaty provision refers to the pre- legislative and drafting processes that led to their i.e. the travaux préparatoires.735 Looking to the internal context of a treaty provision, the EU is said to be a ‘rational actor’; it is assumed to have created a legal system which is consistent, coherent, self-contained and complete.736 The EU tends to adopt a systematic interpretation of the Treaties.737 Its provisions are

732 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 210 (Kindle Edition); Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 3 and 22. 733 Case 1/54 France v High Authority of the European Coal and Steel Community [1954 – 1955] ECR I, at 26. As noted in Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 24. 734 Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 03415, 3430 (para. 20). 735 Koen Lenaerts and José Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’ (2013) European University Institute - EUI Working Papers 1, 13. Available at: http://cadmus.eui.eu/bitstream/handle/1814/28339/AEL_2013_09_DL.pdf?sequence=1 (last accessed: 01 February 2018). 736 Ibid, 13. See, further, on the assumption that a legislator, generally, would not want to contradict himself or herself – Lon Fuller, The Morality of Law (Yale University Press 1969), 65 – 70 and Lon Fuller, Legal Fictions (Stanford University Press 1967), 128 – 130. 737 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 234 (footnote 126) (Kindle Edition), Anna Bredimas, Methods of

228 designed to work together, in harmony, as part of a system.738 Systematic interpretation or argumentation can be defined in both a narrow and a wide sense.739 Defined in a narrow sense, it refers to a comparison or assessment between two provisions in the Treaties, in order to better understand one or both of them. In a wide sense, it refers to a comparison or assessment of a provision with the broader concepts, principles or values of EU law, such as judge-made general principles, the general scheme or context of EU law. A treaty provision must be interpreted so as to avoid a conflict between it, other provisions and the general scheme of the Treaties; a systematic interpretation would enable a provision of EU law to be interpreted in harmony with the existing system and body of legal rules to which it belongs, including the rules, principles, objectives, aims, goals and values of a legal text.740 In other words, its ‘legal context’.741 It has been said this would accord with the EU’s objective under Article 7 TFEU to: “…ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers.”742

Interpretation and Community Law (North-Holland 1978), 179; Joxerramon Bengoetxea, The Legal Reasoning of the European Court of Justice: Towards a European Jurisprudence (Clarendon Press 1993); Mitchel de S.-O.-l'E. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford Univ. Press 2004), 288. 738 See chapter 7 titled ‘The Legal Reasoning of the Court of Justice I - the Available Topoi’ in Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 187 – 233 (Kindle Edition). 739 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 288 - 289 (Kindle Edition). 740 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 119 - 121 (Kindle Edition), and; Koen Lenaerts and José A. Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’ (2013) European University Institute - EUI Working Papers 1, 16. Available at: http://cadmus.eui.eu/bitstream/handle/1814/28339/AEL_2013_09_DL.pdf?sequence=1 (last accessed: 01 February 2018). 741 András Jakab, European Constitutional Language (Cambridge University Press 2016), 32. 742 Koen Lenaerts and José A. Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’ (2013) European University Institute - EUI Working Papers 1, 13. Available at: http://cadmus.eui.eu/bitstream/handle/1814/28339/AEL_2013_09_DL.pdf?sequence=1 (last accessed: 01 February 2018).

229

It is said the principles of EU primary law serve to ‘concretise’ and derive constitutional content from the founding values of the EU.743 For example, this was recently demonstrated in what has been deemed as a significant and ground-breaking CJEU ruling744, owing to the level of judicial activism displayed. In Associação Sindical dos Juízes Portugueses v Tribunal de

Contas, on a combined reading of key provisions in the Treaties, the CJEU considered the interaction between Article 2 TEU, on the rule of law, Article

4(3) TEU on sincere/loyal cooperation and Article 19(1) TEU, on effective judicial protection. The background to the case concerned a domestic dispute over the compatibility of national measures passed by the Portuguese legislature, temporarily reducing the remuneration paid to the public administration in Portugal including the judiciary, with the principle guaranteeing the independence of the judiciary (at a national level and at an

EU-level, as set out in Article 19(1) TEU and Article 47 of the Charter of

Fundamental Human Rights).745 By way of a preliminary reference, the CJEU was asked by the Portuguese Supreme Administrative Court to rule on whether such an internal/domestic situation came within the jurisdiction ratione materia or scope of EU law, beyond the limits envisaged in Article 4(2) TEU.

Specifically, the CJEU was requested to rule on the correct interpretation of the second part of Article 19(1) TEU, which requires that “Member States shall provide remedies sufficient to ensure effective legal protection in the fields

743 Armin von Bogdandy and Jürgen Bast, Principles of European Constitutional Law (2nd ed., Hart Publishing 2008), 22. 744 Laurent Pech and Sébastien Platon, ‘Rule of Law backsliding in the EU: The Court of Justice to the rescue? Some thoughts on the ECJ ruling in Associação Sindical dos Juízes Portugueses’ Blog - EU Law Analysis (13 March 2018). Available at: http://eulawanalysis.blogspot.co.uk/2018/03/rule-of-law-backsliding-in-eu-court-of.html (last accessed: 19 June 2018). 745 Case C-64/16, Associação Sindical dos Juízes Portugueses v Tribunal de Contas [2018], 2 - 3 (paras 5 - 10).

230 covered by Union law” and Article 47 of the Charter of Fundamental Human

Rights, on the right to an effective remedy and fair trial. It was held by the

CJEU that the salary reduction measures under Portuguese law did not actually contravene the fundamental requirement for judicial independence.746

However, the CJEU did rule that the measures fell within the scope of EU law because, crucially, they were based on requirements arising out of financial assistance by the EU aimed at eliminating Portugal’s budget deficit.747 The discussion of the interaction of key EU constitutional principles in this case is important. In this case, the CJEU read Article 19(1) TEU in light of and with reference to Articles 2 and 4(3) TEU, regarding them as mutually supporting principles.748 This case provides a good example of a systematic interpretation of the Treaties. By doing so, the CJEU operationalised the values in Article 2

TEU in its construction of other provisions of EU law.749

The CJEU can also look to the external context of a treaty provision, such as the travaux préparatoires, as an interpretative guide to the intention of the contracting parties on the content, meaning and scope of the provisions of EU law. However, access to the travaux préparatoires relating to the adoption of the original Treaty establishing the European Economic Community (The

Treaty of Rome) is limited750, as they were never published and were not made

746 Ibid, 9 (paras 48 -52 and, in particular, 51). 747 Ibid, 9 (para 46). 748 Ibid, 7 - 8 (paras, 31, 32, 34 and 36). 749 Michal Ovádek, ‘Has the CJEU just reconfigured the EU Constitutional Order’ (28 February 2018) Verfassungsblog – On Matters Constitutional. Available at: https://verfassungsblog.de/has-the-cjeu-just-reconfigured-the-eu-constitutional-order/ (last accessed: 20 June 2018). 750 Koen Lenaerts and José A. Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’ (2013) European University Institute - EUI Working Papers 1, 19. Available at:

231 publicly available.751 Some recourse was made to such material in the early years of the European Community, however recourse to the travaux préparatoires by the ECJ is considered to have been rare752; the ECJ has been reluctant to refer to the travaux préparatoires of the Treaties.753 Instead, the

CJEU relies on a systematic, contextual and teleological method of interpretation, referring to the ‘spirit’, purpose and general scheme of the

Treaties. However, the travaux préparatoires in recent years have become more freely available754 and the travaux préparatoires have been given an increasing importance by the ECJ.755 The travaux préparatoires that preceded

http://cadmus.eui.eu/bitstream/handle/1814/28339/AEL_2013_09_DL.pdf?sequence=1 (last accessed: 01 February 2018). . 751 Paul Craig and Gráinne de Búrca, EU Law: text, cases and materials (Oxford University Press 2011), 64. The core body of the travaux préparatoires have been in a published form since 1960. 752 For a comprehensive list of references in support of this argument, see: Karin Frick and Soren Schonberg, ‘Finishing, Refining, Polishing: On the Use of travaux preparatoires as an Aid the Interpretation of Community Legislation (2003) 28 European Law Review 149, at 149 (footnote 6), and; Samuli Miettinen and Merita Kettunen, ‘Travaux to the Treaties: Treasures or trivia?’, 4 (footnote 17) Draft paper to be presented at the European Union Studies Association conference, Boston, March 5, 2015. Available at: http://aei.pitt.edu/79440/1/Miettinen.Kettunen.pdf (last accessed: 04 July 2018). 753 Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 255; Linda Senden, Soft Law in European Community Law (Kluwer 2004), 374 - 380. See also Case 149/79 Commission v Belgium [1980] ECR 3881, at 3890: “…originalist interpretation plays hardly any part in Community law it would be futile to refer to the intentions of the authors of the Treaty”. In relation to the status of the travaux préparatoires, it was noted in that case that: “…the States, signatories to the Treaty of Rome, have themselves excluded all recourse to the preparatory work and it is very doubtful whether the reservations and declarations, inconsistent as they are, which have been relied upon can be regarded as constituting true preparatory work”: See also: Case 2-74 Jean Reyners v Belgian State [1974] ECR 631, Opinion of Advocate-General Mayras at 666. 754 Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 255; Giuliano Amato, Hervé Bribosia & Bruno de Witte (eds.), Genesis and Destiny of the European Constitution: Commentary on the Treaty establishing a Constitution for Europe in the Light of the Travaux Préparatoires and Future Prospects (Bruylant 2007). 755 For a full discussion, see: Karin Frick and Soren Schonberg, ‘Finishing, Refining, Polishing: On the Use of travaux preparatoires as an Aid the Interpretation of Community Legislation’ (2003) 28 European Law Review 149, 155 - 156 and 168 - 170, and; Samuli Miettinen and Merita Kettunen, ‘Travaux to the Treaties: Treasures or trivia?’, 6 - 9 Draft paper to be presented at the European Union Studies Association conference, Boston, March 5, 2015. Available at: aei.pitt.edu/79440/1/Miettinen.Kettunen.pdf (last accessed: 04 July 2018).

232 the drafting of a Treaty establishing a Constitution for Europe (which ultimately was never adopted) are detailed and publicly available.756 However, they are of limited use for better understanding and interpreting provisions, in what is now the Treaty of Lisbon, in relation to provisions that have simply been re- stated word for word or have been re-produced with only minor modifications.757 This is the case with the proposed amendments relating to what is now Article 2 TEU, as they do not shed any light on issues pertaining to how to resolve a conflict between the relative hierarchical status of and relationship between the values in Article 2 TEU. Instead, the 92 proposed amendments relate to the significance of existing words or phrases (including values) in the text of the provision itself and changing, adding to, or removing the same. For example, the inclusion of solidarity as a fundamental value of the EU was proposed as an amendment but it was proposed that it should be included alongside other values with no consideration given to its status in relation to the other fundamental values of the EU “…Solidarity should be included as a fundamental value of the European Union on the same level as freedom, justice, pluralistic democracy and human rights.”758

756 See: ‘the European Convention’. Available at: http://european- convention.europa.eu/EN/travaux/travaux2352.html?lang=EN (last accessed: 01 February 2018). 757 Koen Lenaerts and José A. Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’ (2013) European University Institute - EUI Working Papers 1, 19. Available at: http://cadmus.eui.eu/bitstream/handle/1814/28339/AEL_2013_09_DL.pdf?sequence=1 (last accessed: 01 February 2018). 758 Emphasis not that of the author. See: Suggestion for amendment of art. 2 By Mr. FRENDO (Member). See: ‘Proposed amendments to the text of the articles of the treaty establishing a constitution for Europe’. Available at: european- convention.europa.eu/docs/Treaty/pdf/2/Art%202%20Frendo.pdf (last accessed: 04 July 2018).

233

With regard to constructing a systematic interpretation of EU law, it has been noted that:

“…there is no existing legal system whose rules and principles form

a coherent whole; instead, legal norms…may conflict, partially

overlap and/or are ambiguous... Arguments of coherence and

consistency in legal interpretation are often inconclusive because

the legal system to which they refer…itself lacks internal coherence

and systemic unity”759

When there is a conflict between the values in Article 2 TEU, owing to the lack of an established hierarchy, it is left to the CJEU to strike a balance between them using appropriate judicial discretion.760 In the case of a conflict between the other provisions of the EU Treaties and the values in Article 2 TEU, it is noted that preference must be given to the values in Article 2 TEU.761

However, Prima facie, the prevalence of one value over another cannot be decided on the basis of a strict, literal or textual interpretation of the Treaties, but it is said this must, instead, be achieved via a ‘practical agreement in each case’762 and choosing between them will: “…inevitably be made by reference to value judgements which have nothing to do with specifically legal justificatory criteria.”763 Practical legal justification, therefore, appears to be

759 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 123 (Kindle Edition). 760 Ibid, 185 and 232. 761 Stelio Mangiameli, ‘Article 2 [The Homogeneity Clause]’, at 117, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013). 762 Ibid, 117 - 118. 763 Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 123 (Kindle Edition).

234 the accepted method or criteria for balancing and prioritising conflicting EU values.

6.6 Interim summary and concluding remarks

In this chapter I have shown that a number of legal concepts, principles, values, objectives, interests, policies and legal norms, associated with the legality of secession and its consequences at an EU-level, come into conflict.

In particular, I examined the relationship between the rule of law and democracy in Article 2 TEU in the context of secession. On their face, they appear to be at odds with each other. Respect for democracy supports a right to self-determination, whereas the rule law requires that secession be carried out in accordance with national constitutional requirements. However, in practice, it can be seen these values were intended to be complementary, interrelated and mutually-reinforcing. With regard to the consequences of secession, in particular, I examined a seceding entity’s prospect of membership or future relationship with the EU, in the case of unilateral secession. This is not addressed in the EU Treaties and is a question that has received very little academic coverage. This is important in light of Catalonia’s recent declaration of independence and desire to remain in the EU. State recognition is a pre-requisite under Article 49 TEU before a seceding entity may apply to join the EU as a ‘European state’. The response at an EU-level to cases outside of its borders, such as Crimea and Kosovo, show the EU is committed to paving the way for membership of the EU despite the non- recognition of cases of unilateral secession. However, I have shown these

235 cases justified a differentiated approach. In terms of whether unilateral secession would pose a bar to EU membership, the EU did not have the opportunity to clarify the law in this area.

Having highlighted and discussed the need for a coherent, rational and systematic position on secession, in the next chapter, I discuss the different methods or models for addressing the lack of clarity in EU law, including a, preferred, treaty amendment to clarify and address a number of key issues or legal points identified and examined in the preceding chapters: the expected route it is expected a seceding entity would have to take to join the EU

(chapters three and four); the need to regulate the potential future EU membership of a region that has seceded from an EU Member State in a manner which respects the fundamental values of the EU, in particular the rule of law and democracy (chapters two, three and six), and; a statement in the

Treaties on whether, and a duty on the Union to negotiate/facilitate lawful secession and simultaneous accession to the EU (chapter five). In addition to discussing the different methods or models for addressing the lack of clarity in

EU law, I also discuss each of the models against a set of evaluative criteria in order to identify the most suitable and effective method.

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CHAPTER SEVEN

THE DIFFERENT METHODS FOR ADDRESSING CONSENSUAL

SECESSION

7.0 Chapter overview

In this chapter, I critically discuss the different methods or models for addressing consensual secession in order to identify the most suitable and effective method. I explore whether each method is legally possible or doctrinally suitable, effective and politically viable. The following methods are examined: (i) the introduction of a new or amended/revised provision in the EU

Treaties; (ii) a CJEU ruling which could provide constitutional guidance; (iii) clarification on the hierarchy of the EU’s values and their functional relationship to one another, either in an CJEU judgment or in the Treaties; (iv) soft law policy guidance, and; (v) a role for the EU as a mediator in intra-state secessionist conflicts. This will allow for a comparative analysis of the strengths and weaknesses of each method on the different issues and provide for a reasoned and justified conclusion on how to address the secession of (a) part(s) of a territory of a Member State in EU law. In practical terms, I address the form that such change/reform could take. I suggest draft wording that could be adopted in the Treaties, in order to clarify the EU’s position on secession from both a substantive and procedural perspective.

As noted in previous chapters, given that the consequences of unilateral or non-consensual secession would lie outside of the EU legal order, involving

238 questions of state recognition in public international law, the different methods for addressing secession will be based on secession that is deemed to have been consensual, democratic and carried out with the consent of the metropolitan state, in accordance with the national constitutional requirements of an EU Member State.

7.1 The evaluative criteria

In order to justify whether and why each method/model is a good and tenable idea or not, I evaluate each of them against the extent to which they meet/satisfy the rule of law criteria and, in particular, the sub-principles

(procedural requirements) of the rule of law: legal certainty and democratic legitimacy. These principles must be important for guiding how the EU must address secession in EU law and guide how it formulates its provisions.

Indeed, the recent attempt at unilateral secession by Catalonia was deemed by the Union to be in breach of the rule of law.

Of course, any method for addressing secession must be legally possible. For example, a seceding entity would not be able to propose an amendment to/revision of the EU Treaties, as this is reserved for governments of Member

States.764 Furthermore, a provision in the Treaties regulating the legality of secession itself would not be constitutionally acceptable to Member States.

764 Article 48(2) TEU.

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This is because it would be seen to be interfering in national constitutional affairs. Crucially, a method must also be politically feasible. For example, an amendment to/revision of the Treaties and/or the introduction of a new treaty provision would be subject to the unanimous agreement of all EU Member

States. Owing to the right of a Member State to exercise a veto for reasons unrelated to the general EU interest, this could prove to be problematic.

Whether a method is politically feasible will also include other practical considerations such as the time frame for reform/change, as well as any other barriers to implementation and the application of EU law. For example, soft law is regarded as being a much quicker method to adopt than treaty change.

Furthermore, national authorities can depart from soft law in order to accommodate national specificities or particular circumstances on a case-by- case basis, which is difficult to reconcile with ensuring the consistent application of EU law or fostering legitimate expectations and certainty.765

Legal certainty is not a principle that is found in the EU Treaties, but the ECJ has stated it is an aspect of the rule of law766 and a general principle.767 It is an open-ended concept768 but, according to the case-law, the principle

765 Oana Stefan, ‘Soft Law and the Enforcement of EU law’, at 216, in András Jakab and Dimitry Kochenov, The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (1st ed., Oxford University Press 2017). 766 For example, according to Lord Diplock in Black Clawson Ltd. v Papierwerke [1975] AC 951, at 638: “the acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it”. 767 Takis Tridimas, The general principles of EU law (2nd ed.) (Oxford University Press 2006), at 242; Paul Craig, ‘Substantive Legitimate Expectations in Domestic and Community Law’ (1996) 55 Cambridge Law Journal 289, 304. 768 Ibid, 243.

240 requires that the law must be clear and precise769 and that its application, legal implications or consequences be foreseeable and predictable.770 The clarity of the law is thus a key dimension of the legal certainty principle. It enables the subjects of EU law to understand their respective rights and obligations.771

A provision which lacks clarity and precision or is irreconcilable with other provisions, which would make it impossible for EU citizens to know the rules and for the courts to apply them772, would be contrary to the principle of legal certainty. Thus, any method for addressing secession must provide for legal certainty. The law must be clear and its legal implications or consequences must be foreseeable and predictable.

In the face of different and contrasting interpretations of EU law on secession, a legally binding method is desirable, although not essential to provide legal certainty. Thus, it is important to discuss whether each method does/does not bind Member States. The effectiveness of a particular method will depend on the extent to which it can provide an authoritative and conclusive position on the law, which is legally binding and that can, therefore, create a legal duty or obligation on Member States ensuring it is applied in a consistent and uniform

769 Opinion of Advocate General Cosmas in Case C-63/93 Duff and others v Minister for Agriculture and Food [1996] ECR I-569, at paras. 20 and 25; Case C-110/03 Belgium v Commission [2005] ECR I-2801, at para. 30; Case C-386/06; R (International Association of Independent Tanker Owners (Intertanko) v Secretary of State for Transport [2008] ECR I-4057, at para. 69. 770 Takis Tridimas, The general principles of EU law (2nd ed.) (Oxford University Press 2006), 244. See Joined Cases 212-217/80 Salumi [1981] ECR 2735, at para. 10; Case C-158/06 ROM-projecten [2007] ECR I-5103, at para. 25. 771 Case C-331/88 R v MAFF, ex parte Fedesa (1990) ECR-I4023. 772 Takis Tridimas, The general principles of EU law (2nd ed.) (Oxford University Press 2006), 245 – 246; see, for example: Case T-115/94 Opel Austria GmbH v Council of the European Union [1997] ECR II-39, at para. 125.

241 manner. Only instruments which have legally binding force can lawfully create obligations. However, something does not have to be binding to provide legal certainty, but legal certainty has been used to reinforce the binding character of European law, including the obligations which flow from it.773 A non-binding measure can still produce legal effects. Thus, there is a need to distinguish between legally binding force and legal or practical (extra-legal) effects. Legal effects refer to the capacity of EU legal instruments to change the rights and obligations of actors.774 The practical effects of soft law, for example, can include effecting changes in Member State’s behaviour, practises and policy changes. Soft law places an emphasis on guidance and persuasion rather than enforcement by a coercive authority775, departing from the traditional model whereby collectively binding decisions are taken by elected representatives within parliaments and implemented by public administrations.776

Given the constitutional importance/significance of secession and owing to a perceived democratic deficit in the EU according to the mainstream view, decision-making processes and the law must guarantee democratic legitimacy. In the context of law-making, democratic legitimacy requires that both the procedures and outcomes follow democratic principles. Put another way: “the recognisability and identifiability of a political system as inherently

773 Takis Tridimas, The general principles of EU law (2nd ed.) (Oxford University Press 2006), 246. 774 Trevor Hartley, The Foundations of European Community Law (Oxford University Press 2010), 354. 775 Oliver Treib, Holger Bähr and Gerda Falkner, ‘Modes of Governance: Towards a Conceptual Clarification (2007)14(1) Journal of European Public Policy 1, 14. 776 Ibid, 3.

242 and naturally bound up with its citizens”.777 On this view, to be legitimate, decisions must involve public participation. Thus, EU citizens must be represented at an institutional level in the EU. The political participation of EU citizens must go beyond the right to vote in European elections, providing for popular consultation and referendums on European issues in Member States

(such as the accession of new Member States to the EU or EMU and ratification of amending treaties). Furthermore, the law that governs EU citizens must be consented to/approved by EU citizens.778 The European

Parliament is the only body with legislative power that is directly elected by EU citizens within the EU. Following the Lisbon Treaty, good governance principles provide a standard against which to assess the democratic legitimacy of the EU. These include, for example, the principles of representative, participatory and direct democracy (Article 11 TEU and Article

24 TFEU).

7.2 The EU Treaties

It would be valuable for Member States to agree to amend the Treaties in order to clarify: (i) on what grounds Member States shall recognise a declaration of independence by a seceding region; (ii) whether a unilateral declaration of independence would prevent a seceding entity from membership of the EU sine die; (iii) whether, and to what extent, there exists a legal duty on the part

777 Deirdre Curtin and Ramses Wessel, Good Governance and the European Union. Reflections on Concepts, Institutions and Substance (2005), 157. 778 Armin von Bogdandy and Jürgen Bast, Principles of European Constitutional Law (2nd ed., Hart Publishing 2008), 50 – 51.

243 of the Union to negotiate/facilitate cases of consensual secession and simultaneous accession to the EU; (iv) the procedural route it is expected a seceding entity would have to take to join the EU (via Article 48 or 49 TEU);

(v) whether a seceded entity could benefit from an expedited route to EU membership, on the basis of already having an integrated EU law acquis, and;

(vi) the hierarchy of the EU’s values and their functional relationship to one another.

The wording of a proposed treaty provision is suggested below:

The fragmentation of the European Union

Secession of (a) part(s) of the territory of a Member State

1. When a part or parts of the territory of a Member State

cease to be a part of that state, the Treaties shall no longer apply to

that territory. A newly-independent region shall become a third

country with respect to the Union and the Treaties shall, from the

date of independence, no longer apply to that territory.

2. In such a case, a newly-independent region shall be subject

to the procedure as set out in Article 49.

3. In accordance with Article 2, it will be recalled the Union is

based on the rule of law. In order to safeguard the rule of law, the

manner in which a seceding entity achieves its independence must

be carried out in accordance with national constitutional law. The

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Union supports democratic and peaceful solutions in accordance

with European values. Member States shall not recognise any

declaration of independence, as legitimate, which is not expressed

and executed democratically, in a lawful way.

4. Recognising that the Union supports democratic and

peaceful solutions in accordance with European values, and

pursuant to the principle of sincere cooperation, in cases where a

region or territory has seceded from a parent state through a

consensual and democratic process, the Union and Member States

shall, in full mutual respect, have a duty to facilitate and negotiate a

seceding entity’s accession to and membership of the EU.

7.2.1 The rationale for each paragraph in the treaty

amendment proposed

In what follows, I discuss the rationale for each paragraph in the amendment, including the heading for the provision and where such a provision could be inserted in the Treaties. The rationale for the heading, ‘fragmentation of the

European Union’, is because if a seceding entity broke-away from its metropolitan state, it would represent a de facto or internal ‘enlargement’ of the EU. It would not result in a real or actual enlargement. The territorial scope of application of the Treaties would remain the same, but there would be a greater number of constituent Member States in Article 52 TEU.779 To a large

779 Merijn Chamon and Guillaume Van der Loo, ‘The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and Fragmentation versus Widening and Deepening?’ (2014) 20(5) European Law Journal 613, 614.

245 extent, the provision above codifies the existing position in EU law.

Paragraphs one and two of the amendment set out the route it is expected a seceding entity would have to take to join the EU according to the ‘Barroso view’. I explain in chapter 3, sections 3.2 and 3.3, why I have chosen to adopt

‘the Barroso view’, which would require a seceding entity to apply to join the

EU, via the normal accession procedure under Article 49 TEU, and why this view outweighs the alternative approach of allowing accession by default. The rationale for the inclusion of the third paragraph in the provision above would be to regulate the potential future EU membership of a region that has seceded from an EU Member State in a manner which respects the fundamental values of the EU, in particular the rule of law and democracy (as explained in previous chapters, this thesis has mainly focussed on consensual secession). Whilst this amendment, in some respects, codifies the existing position in EU law, the draft provision put forward provides added value by making it clear that the concept of democracy and the rule of law in EU law must be applied together.

They are co-dependent as well as mutually reinforcing. Thus, a democratic decision to secede must comply with the rule of law (a Member State’s own constitutional requirements) in order to be considered legitimate. As it stands,

Article 2 TEU and the ECJ/CJEU have not clarified the hierarchical or functional relationship between these two fundamental values in the Treaties.

This provision therefore provides much needed clarity. The rationale for the inclusion of the fourth and final paragraph in the draft provision would be to make it clear that secession from an EU Member State would not necessarily automatically lead to exclusion from the EU and a loss in continuity in EU membership. A statement in the Treaties imposing a duty on the Union and

246 its Member States to negotiate/facilitate cases of consensual secession and simultaneous accession to the EU would be valuable. For a discussion of the legal basis for the existence of such a duty, please refer to chapter 5, section

5.2, of this thesis. Such a duty would allow time for a smooth and orderly transition to independence at a national level, continuity in EU membership and would avoid a temporal paradox/gap in the application of EU law, given the disruptive effects that an automatic loss of EU membership would have.

The entire provision that is proposed above could be included under Title V on

‘final provisions’, when addressing the potential accession of a new Member state or the fragmentation of the EU caused by a change in the EU’s internal territorial borders. A provision of this nature could also be included under Title

V, Chapter 1, of the Lisbon Treaty on ‘general provisions on the Union’s external action’ in its dealings with third countries/non-EU Member States. A seceding entity would, of course, be regarded as a third county at the point at which it gained its independence.

7.2.2 Suggested amendments to Article 49 TEU or the

‘Copenhagen criteria’ for accession

Short of introducing a standalone provision into the Treaties, it would, in theory, be possible for Member States to amend Article 49 TEU or the ‘Copenhagen criteria’ for accession.780 This way, Member States could incorporate

780 Merijn Chamon and Guillaume Van der Loo, ‘The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and Fragmentation versus Widening and Deepening?’ (2014) 20(5) European Law Journal 613, 622, and; Marc Maresceau, ‘The EU Pre-Accession

247 new/additional rules on membership for seceding entities or an expedited process for accession to the EU. Indeed, in Mattheus v Doego, the ECJ held, with reference to the former Article 237 of the EEC Treaty (now Article 49

TEU), that the accession criteria are not exhaustive, leaving them open to revision/amendment:

“Thus the legal conditions for such accession remain to be defined

in the context of that procedure without its being possible to

determine the content judicially in advance”.781

The conclusions of the European Council in Helsinki782, which make reference to the Copenhagen criteria on accession, set out a requirement for states to share the values and objectives of the EU and to have attempted to resolve international disputes before allowing a state to accede to the EU. Member

States could agree to introduce such a provision into Article 49 TEU or the

Copenhagen criteria for accession. Thus, where a seceding entity has not secured the consent of its metropolitan state to secede, it would not satisfy the accession criteria. For example, with regard to relations between Serbia and

Kosovo, the European Commission had declared that the obstacle for Serbia in demonstrating compliance with meeting the accession criteria was its dispute with Kosovo:

Strategies: A Political and Legal Analysis’, in Marc Maresceau and Erwan Lannon (eds.), The EU’s Enlargement and Mediterranean Strategies: A Comparative Analysis (Palgrave 2001), 10. 781 Case 93/78 Lothar Mattheus v Doego Fruchtimport und Tiefkühlkost eG [1978] ECR I-2203, 2211 (para. 7). The Copenhagen criteria have subsequently been amended by legislation and decisions of the European Council, the European Commission and the European Parliament, as well as in the case-law of the ECJ and the European Court of Human Rights. 782 See section 4 of the European Council Presidency Conclusions (10 - 11 December 1999). Available at: http://www.europarl.europa.eu/summits/hel1_en.htm (last accessed: 11 December 2018).

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“A visible and sustainable improvement in relations between Serbia

and Kosovo is needed so that both can continue on their respective

paths towards the EU…”783

It has also been suggested Member States could agree, by way of an amendment/revision of the Treaties, to accelerate or expedite an application for EU membership.784 Indeed, Scotland argued in 2014 that any re- negotiation of its membership of the EU should be accelerated, owing to the fact that it had already been applying EU law on its territory through the UK’s membership of the EU.785 In such a case, it has been suggested Member

States could agree a timescale for processing an application for EU membership. Article 49 TEU could also be amended by Member States to provide for transitional arragements with respect to secession and subsequent accession to the EU. This would be consistent with the pre-accession practice of the EU in negotiating Accession Treaties with candidate countries.786 This would help facilitate and ensure continuity of EU membership.

783 European Commission, ‘Communication from the Commission to the European Parliament and the Council - Enlargement Strategy and Main Challenges 2012-2013’ COM(2012) 600 final, at para. 20 (page 26). Available at: https://ec.europa.eu/neighbourhood- enlargement/sites/near/files/pdf/key_documents/2012/package/strategy_paper_2012_en.pdf. 784 Neil Walker, ‘Internal Enlargement in the EU’, at 44, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017); Advisory Council for the National Transition: The routes of integration of Catalonia into the EU, 25 - 28. 785 The Scottish Government, Scotland in the European Union (2013), at 85. Available at: https://www2.gov.scot/Publications/2013/11/5894/1 (last accessed: 21 February 2019). 786 Kirstyn Inglis, ‘Towards a Continuity and Transition for Scotland’s EU membership’ (2016) Working Paper for the Jean Monnet Supplement to the Análise Caeni Newsletter (University of Sáo Paulo) 1, 4. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2881471 (last accessed: 10 January 2017), and; Kirstyn Inglis, ‘Accession Treaties: differentiation versus conditionality’ in Andrea Ott and Ellen Vos (eds.), Fifty Years of European Integration: Foundations and Perspectives (T.M.C. Asser Press 2009), 113 - 138.

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7.2.3 Suggested amendment to Article 2 TEU

Clarification in the EU Treaties on the legal position of Article 2 TEU with respect to other constitutional provisions in the Treaties would help to resolve any potential conflicts that might arise. It is said that where there is a conflict, preference must be given to the interpretation which favours and is closest to the EU’s values. Thus, Article 2 TEU is said to sit at the top of the internal norm hierarchy within the Treaties.787 A statement to this effect in the Treaties would help to provide legal certainty. As for clarification of the hierarchy of the

EU’s values themselves and their functional relationship to one another, the values in Article 2 TEU are not amenable to a hierarchy. It cannot be said that one value or principle ranks above another, nor are their contents and legal obligations regarded as being amenable to further specification, owing to their acceptance as ‘essentially contested concepts’ (see chapter 6, sections 6.3.2 and 6.3.3, above where this concept is introduced and discussed further).

However, Article 2 TEU could be amended to reflect the understanding that the fundamental values in Article 2 TEU are complementary, mutually reinforcing and interconnected. Indeed, it will be recalled, from chapter six, section 6.5, that the EU is said to be a ‘rational actor’. Thus, the Member

States/the Treaties are assumed to have created a legal system which is consistent, coherent, self-contained and complete.788 The provisions of the

787 Takis Tridimas, The General Principles of EU law (Oxford University Press 2006), 16. 788 Koen Lenaerts and José A. Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’ (2013) European University Institute - EUI Working Papers 1, 13. Available at: http://cadmus.eui.eu/bitstream/handle/1814/28339/AEL_2013_09_DL.pdf?sequence=1 (last accessed: 01 February 2018). See, further, on the assumption that a legislator, generally, would

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Treaties are designed to work together, in harmony, as part of a system.789

This could be taken into account and included as a revision/amendment to

Article 2 TEU.

The suggested wording for amendment is proposed below:

Article 2

1. The Union is founded on the values of respect for human

dignity, freedom, democracy, equality, the rule of law and respect

for human rights, including the rights of persons belonging to

minorities. These values are common to the Member States in a

society in which pluralism, non-discrimination, tolerance, justice,

solidarity and equality between women and men prevail.

2. The values contained in this section shall, in so far as it is

possible to do so, be interpreted and read together, in harmony,

within the framework of the Treaties.

If a provision addressing or taking secession into account was written into the

Treaties, that would provide seceding entities with greater legal certainty. In terms of clarifying when Member States shall or shall not recognise a declaration of independence by a seceding entity, it has been argued a treaty

not want to contradict himself – Lon Fuller, The Morality of Law (Yale University Press 1969), 65 – 70 and Lon Fuller, Legal Fictions (Stanford University Press 1967), 128 – 130. 789 See chapter 7 titled ‘The Legal Reasoning of the Court of Justice I - the Available Topoi’ in Gunnar Beck, The Legal Reasoning of the Court of Justice of the EU (Bloomsbury Publishing 2012), 187 – 233 (Kindle Edition).

251 provision would be better able to differentiate between different cases of secession.790 An assessment of each case on its own merits, on an ad hoc basis, could give rise to an inconsistent approach. Moreover, unlike a CJEU judgment, a treaty provision would be proactive rather than reactive. This would ensure legal certainty, predictability and foreseeability in the law and allow Member States to address secession in advance of a future situation.

Crucially, the introduction of a new or amended treaty provision would re-affirm the Union’s respect for democracy and the rule of law in Article 2 TEU; territorial cohesion and solidarity in Article 3 TEU, sovereignty; respect for national constitutional identities, and; respect for essential state functions, including ensuring the territorial integrity of its Member States, in Article 4(2)

TEU. It would also re-affirm the ‘Barroso view’791, providing for a consistent approach at an EU-level, making it clear that a seceding entity would have to apply to join the EU via the normal accession procedure. In chapter 3, sections

3.2 and 3.3 above, I explain why I have chosen to adopt ‘the Barroso view’ and why this view outweighs the alternative approach of allowing accession by default. The ‘Barroso view’ is reflected in paragraph one of the draft provision suggested in section 7.3, above.

790 Neil Walker, ‘Internal Enlargement in the EU’, at 43, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017). 791 C 84 E/422, Official Journal of the European Union (3/4/2004) ‘Answer given by Mr Prodi on behalf of the Commission’ (01 March 2004). Available at: http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2004:084E:0422:0423:EN:PDF (last accessed: 08 August 2016).

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Following a case of secession, and with respect to accession to the EU, whilst the focus of this thesis has mainly been on consensual secession, such a provision would mean that Member States and potential seceding territories would be clear and bound that no unilateral or unconstitutional secession could ever be considered or succeed at an EU-level. The aim of such a provision would be to encourage compliance with the rule of law. It would also make it clear the democratic principle must be applied in conjunction with the rule of law criteria, clarifying the functional relationship between both values in Article

2 TEU. In other words, a democratic decision of a majority to secede would not, on its own, be enough to guarantee legitimacy. A unilateral secession not carried out in accordance with a Member State’s constitutional requirements would not be capable of being recognised as legitimate by the Union. Thus, secessionist and pro-independence movements would be clear on this in advance, and prior to declaring independence, which would provide legal certainty and a sense of legitimate expectation.

One author has also suggested that a seceding entity’s compliance with the rule of law could be managed and supervised at an EU-level, which would be desirable in order to protect the fundamental values of the EU.792 This could be carried out via a procedure or an ad hoc supervisory instrument. This would apply to cases of secession where the consent of the parent state is not present. Such a procedure would require both the parent state and seceding entity to submit documentation and provide periodic updates, as well as

792 Cristina Fasone, ‘Secession and the Ambiguous Place of Regions Under EU Law’, 65, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017).

253 publish reports on the progress of negotiations, to the European Commission.

This would allow the European Commission to monitor whether and to what extent its fundamental values are respected throughout the process of secession.

With regard to the draft wording in the Treaties on the values in Article 2 TEU, suggested above, the values listed in Article 2 TEU must be read together and in harmony with each other, including other provisions of the Treaties. Where there is a conflict, preference must be given to the interpretation which favours and is closest to the EU’s values.793 An explicit provision addressing and taking this into account seeks to provide a hierarchical ordering of norms to resolve any potential conflict. Thus, this reflects the fundamental nature of the values in Article 2 TEU and as general principles of EU law. It is also in accordance with Article 3 TEU which states that: ‘the Union's aim is to promote peace, its values and the well-being of its peoples.’ Such a provision would provide greater clarity and legal certainty.

7.2.4 An assessment of this method or model against the

evaluative criteria

Owing to the binding nature of the Treaties as primary legislation, which are directly applicable to all Member States, such a provision would be capable of being relied upon as an authoritative and definitive statement of the law. This

793 Stelio Mangiameli, ‘Article 2 [The Homogeneity Clause]’, at 117, in Hermann-Josef Blanke and Stelio Mangiameli (eds.) The Treaty on European Union: A Commentary (Springer 2013).

254 would ensure legal certainty and, importantly, consistency/uniformity in the interpretation and application of EU law amongst EU Member States. It would, importantly, give rise to a legal duty or obligation on the EU and Member States and could give rise to a legitimate expectation. For example, if a seceding entity complied with the procedural requirements of a new treaty provision in the manner of its secession, and the values of the EU in Article 2 TEU, that may create a legitimate expectation that a declaration of independence would be recognised as being legitimate by the Union.

The Treaties seek to guarantee democratic legitimacy through the requirement that any treaty amendment/revision be carried out in accordance with the respective national constitutional requirements of each Member State.794 This requirement is set out in Article 48(4) TEU and these rules themselves have been agreed by the Member States, which further strengthens their democratic legitimacy.795 Thus, a new or amended treaty provision would need to be formally ratified by Member States by way of a parliamentary vote or a referendum, as well as fall within the limits set down by national constitutional courts.796 Referendums on specific constitutional issues, such as membership of the EU or ratification of a new/amending EU treaty are a better alternative

794 Stephen Weatherill, Law and Values in the European Union (Oxford University Press 2016), 15. 795 Ibid, 15. However, as one author is astute to point out, “the origin of a system does not say much of its current functioning” and the argument could be made that just because the EU has democratic origins does not necessarily mean that its functioning must also be democratic. See: András Jakab, European Constitutional Language (Cambridge University Press 2016), 196 – 197. 796 Note the “red lines” or conditions set by the BVerfG (German Federal Constitutional Court): protection for fundamental rights (Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR I-1125); conferral of powers/ultra vires (Brunner v European Union Treaty CMLR [1994] 57); respect for national constitutional identity (Lisbon 2 BvE 2/08 (Judgment of the Second Senate of 30 June 2009).

255 to European Parliamentary or General elections. However, in terms of allowing voters to express their views and preferences about the EU, referendums only allow voters to express their views about isolated constitutional issues and not on actual policy content, nor do they permit a role in the articulation of EU policy-making.797

Significant constitutional amendments/revisions to the Treaties are prepared by way of a convention that would be comprised of representatives of national

Parliaments, the Heads of State or Government of the Member States, the

European Parliament and the European Commission.798 Thus, there would be representation on an important constitutional issue from a wide range of contributors. Such a reform to the Treaties could be achieved in consultation with and taking into account the input of key constitutional actors/bodies/stakeholders, representative associations, advisory groups, experts, civil society, citizens and the general public.799 In order to facilitate the wider involvement of such groups and individuals, the EU Treaties require

EU institutions to promote openness, transparency and the dissemination and public exchange of information800, involvement in its decision-making801, dialogue and political debate in civil society.802 For example, the European

797 Simon Hix and Andreas Follesdall, ‘Why There is a Democratic Deﬁcit in the EU: A Response to Majone and Moravcsik’ 44(3) (2006) Journal of Common Market Studies 533, 552. 798 Article 48(3) TEU. 799 Neil Walker, ‘Internal Enlargement in the EU’, at 44, in Carlos Closa (ed.) Secession from a Member States and withdrawal from the European Union: troubled membership (Cambridge University Press 2017). 800 Article 10(3) TEU. 801 Article 11 TEU and Article 2 of the Protocol on Subsidiarity and Proportionality. 802 Articles 15 and 16 TFEU. See: Juan Mayoral, ‘Democratic improvements in the European Union under the Lisbon Treaty Institutional changes regarding democratic government in the EU’ European University Institute - Robert Schuman Centre for Advanced Studies (2011). Available at: https://www.eui.eu/Projects/EUDO-Institutions/Documents/EUDOreport922011.pdf (last accessed: 21 July 2019).

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Commission is required to consult with concerned parties in order to ensure the Union's actions are coherent and transparent. The European Parliament and the Council are also required, for example, to meet in public when considering and voting on a draft legislative provision.803 The final decision on an amendment/revision to the Treaties would be made by an

Intergovernmental Conference of the governments of Member States. Thus, this method of addressing secession would, in theory, seek to guarantee and provide for democratically legitimacy.

It would be impermissible for the Union to introduce a constitutional provision into the Treaties regulating the legality of secession. This is because only

Member States can set limits to the omnipotence of Member States as

‘Masters of the Treaties’.804 It would also be impermissible for the Union to prescribe and list the criteria that would be required in order for a seceded entity to meet the values in Article 2 TEU, such as the rule of law criteria or the democratic principle. For example, the Union would be prevented from prescribing the requirements for a binding referendum on independence, what would comprise a majority democratic decision, the franchise or question(s) in an independence referendum, whether a statute or act of parliament granting authorisation would be required before a referendum could be held and/or whether there would need to be an agreement from the central government.

To do so would interfere with the principle of respect for national constitutional

803 Note Articles 15(2) and 16(8) TFEU, in particular. 804 The BVerfG (German Federal Constitutional Court) played a crucial role in interpreting the issues relating to concept of national constitutional identity in Article 4(2) TEU. According to the Federal Constitutional Court in the Lisbon Case (BVerfG/Federal Constitutional Court) 2 BvE 2/08 (Judgment of the Second Senate of 30 June 2009), the provisions of the Lisbon Treaty do not confer on the EU the right to decide on its own competence.

257 identities in Article 4(2) TEU. However, it would, in theory, be permissible for the Treaties to regulate the procedural aspects of secession associated with a seceded territory’s future relationship with and/or membership of the EU.

In order to proceed under Article 49 TEU, a seceding entity would first have to be recognised as a state. As discussed, above, in chapter 6, section 6.3.4.1, recognition is a prerogative of States and this is not a competence which has been conferred upon the EU. As suggested above, Member States could agree to amend the Treaties so as to include a provision addressing/taking this into account. In response to Catalonia’s recent declaration of independence,

EU Member States condemned such action as unlawful. Moreover, no EU

Member State permits an absolute or unconditional right to secession and where secession is permitted, it may not be unilateral and must be carried out in accordance with the constitutional requirements of that state. Such a provision would also strengthen the EU’s fundamental values and principles, such as respect for the rule of law and democratic principle. Thus, such a provision would appear to be politically acceptable and therefore a feasible suggestion.

However, an amendment/revision of the Treaties would, of course, require unanimity; although if the Barroso view is incorrect, vetoes are not an issue.

Some Member States may not wish to formally agree on and insert into the

Treaties a provision that would preclude unilateral secession and simultaneous

EU accession. It might promote a political backlash on their own territory by pro-independence or active secessionist movements. The introduction of a

258 formal, substantive or procedural provision regulating secession in the Treaties could have a formalising or symbolising effect.805 Thus, it could encourage or spur on further secessionism. Moreover, even with respect to countries that do not face secessionist demands, they may not wish to recognise break-away regions, so as not to jeopardise international relations with other Member

States that might be anti-secessionist.806 Such a declaration could, however, act as a deterrent against unlawful secession and might be considered desirable.

Deference in the Treaties to what is accepted by or shared amongst Member

States regarding their constitutional traditions may be more suitable, flexible and doctrinally feasible. The more general and less prescriptive or exhaustive such a provision, the more likely it is to be agreed and accepted by Member

States. Indeed, the Treaties already have in place such a provision in relation to a Member State’s withdrawal from the EU. According to Article 50(1) TEU:

“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. It is of note this phrase was absent in a proposed amendment to Article 50(1) (proposed Article 27(1)), during discussions over the draft Constitutional Treaty for the EU:

"Any Member State may withdraw from the EU. It shall address to the

Council its notice of intention to withdraw."807

805 Armin von Bogdandy and Jürgen Bast, Principles of European Constitutional Law (2nd ed., Hart Publishing 2008), 173. 806 Dawn Brancati, ‘The Other Great Illusion: The Advancement of Separatism through Economic Integration’ (2014) 2(1) Political Science and Research Methods 69, 75. 807 The General Secretariat of the Council of the EU, ‘Contribution by Mr P. Hain, member of the Convention - Constitutional treaty of the EU’ (2002) Conv 345/1/02 Rev 1, 48. Available

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The phrase, “in accordance with its [a Member State’s] own constitutional requirements”, represents a standard provision in the TEU808 and to some extent already in earlier Treaties e.g. the Maastricht Treaty. However, inclusion in the final version of Article 50 underlines its importance, especially for matters of constitutional significance. According to the preparatory documents that accompanied the proposed amendment in Article 27(1), it was originally felt that the “political blessing” of heads of state or a government would suffice and that no further action would be required to give effect to a

Member State’s withdrawal from the EU.809 The rationale for including this provision in the final version of Article 50(1) was to ensure a decision to withdraw was considered democratic, legitimate and would be binding on a state, in order to guarantee procedural regularity, uphold the rule of law and ensure that decisions taken by a government do not go beyond the power or authority granted to it by its own constitution.

However, unless Member States agreed to amend the rules on unanimity voting in the Treaties, this would conflict with the absolute right of a Member

State to veto the accession of a new Member State, for any reason. Even if

Member States agreed to amend unanimity voting in the Treaties, crucially, a

Member State could still veto an actual proposal for an amendment/revision of the Treaties. Thus, a Member State’s right of a veto appears to create an

at: http://register.consilium.europa.eu/doc/srv?l=EN&f=CV%20345%202002%20REV%201 (last accessed: 09 January 2018). 808 See, for example: Articles 25, 42, 48(4), 48(6), 49, 54, 218, 223, 262, 311 and 357 of the TEU. 809 The General Secretariat of the Council of the EU, ‘Contribution by Mr P. Hain, member of the Convention - Constitutional treaty of the EU’ (2002) Conv 345/1/02 Rev 1, 49. Available at: http://register.consilium.europa.eu/doc/srv?l=EN&f=CV%20345%202002%20REV%201 (last accessed: 09 January 2018).

260 interminable ‘deadlock’. As one author has noted: “A unanimity rule for treaty revisions has a petriﬁcation effect and may lead to a blockade”.810 Effectively, the EU’s own rules with respect to vetoes and the requirement for unanimity in

Article 48 TEU, could actually prevent the addition of new rules with respect to regulating the consequences of secession in the Treaties. As it has been put by one author: “Unanimity is required in order to abolish the unanimity rule.”811

Furthermore, it is not thought it would be legally possible to circumvent the present rules on treaty amendment/revision through the creation of a new treaty, in order to supersede the former treaty.812

As a potential solution, an exception to unanimity voting via secondary EU legislation or a ‘deadlock provision’ in the Treaties regulating vetoes might be useful. The attractiveness of rules regulating the use of a veto, whilst still retaining and recognising a Member State’s sovereign right to a veto, might strike the appropriate balance. This could be introduced as an amendment/revision to Article 48 TEU. A ‘deadlock provision’ could be subject to members safeguards, qualification and restraint. For example, a veto could be subject to the requirement that it be exercised according to a Member

State’s own constitutional requirements or only if it could be justified or issued under certain circumstances, such as only in respect of unilateral secession where the consent of the parent state is not present. Moreover, action taken could be subject to the proportionality principle in Article 5 TEU or sincere cooperation in Article 4(3) TEU. For example, a refusal to recognise a

810 Christian Kirchner, ‘The unanimity rule revisited: the case of revisions of hybrid constitutions’ (2012) Public Choice 445, 448. 811 Ibid, 447. 812 Ibid, 448.

261 legitimate consensual secession, resulting in an automatic loss of EU membership for a seceding entity, could affect the operation of the single market and EU citizen’s rights. The refusal to recognise a new Member State may, in some circumstances, go beyond what is necessary for the attainment of national interest objectives. Thus, it would have to be shown that the benefits to the national interest outweigh the disadvantages to a loss of EU membership. A Member State exercising a veto could also be required to show that there are other less restrictive, but equally effective, ways to achieve the national interest, such as the imposition by the European Commission of conditions in relation to that state’s membership, such as complying with the

EU’s values, standards and rules.

It is expected certain parts of the draft treaty provision proposed in this chapter

(see section 7.3, above) would be more or less politically acceptable than others. It would, ultimately, depend on the perspective of Member States and on whether a Member State was pro- or anti-secession. On the one hand, owing to the collective non-recognition of Catalonia’s recent declaration of independence, an explicit provision in the Treaties requiring that procedural aspects of secession respect democracy and the rule of law would appear to have strong support. The draft provision proposed in this chapter also stipulates the consequences of unilateral secession (non-recognition), which further strengthens this point. However, on the other hand, a provision which, effectively, sanctions consensual secession by providing a procedural basis for re-entry into the EU, may not be politically acceptable. It might encourage further secessionism within the EU.

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7.3 A ruling of the CJEU

Owing to its role under Article 19 TEU, to ‘ensure that in the interpretation and application of the Treaties the law is observed’, it would be valuable for the

CJEU to provide guidance on the interpretation of EU law and to clarify the position of the Treaties with respect to unilateral secession and EU membership. This is reinforced given the duty on the Union’s institutions to promote the values of the EU under Articles 3(1) and 13(1) TEU. However, the options open to the CJEU to do so are limited and any intervention would be piecemeal, retroactive and on a case-by-case basis. I explore two potential options by which the CJEU could clarify the position of EU law below, which include the preliminary reference procedure and the involvement of the CJEU in the infringement procedure.813 The CJEU cannot simply act on its own initiative. The CJEU has limited jurisdiction with respect to the interpretation of national constitutional law or is bound to defer to national constitutions or constitutional courts. I introduced and examined the concept of respect for national constitutional identities in chapter 2, section 2.2.2, above.

813 I do not consider the sanctions procedure/mechanism in Article 7 TEU. This provides for sanctions in the case of a breach of the EU’s values. However, the CJEU is not involved in this process as it was conceived of as a purely political procedure. This is, in part, confirmed in Article 269 TFEU, which limits the jurisdiction of the CJEU to review sanctions against Member States. Article 7 TEU would, however, provide the Council with the opportunity to clarify the law in this area in the event a seceding entity achieved its independence unlawfully, in breach of the rule of law in Article 2 TEU. For example, in relation to the Spanish government’s alleged use of unlawful force in response to the independence referendum held in Catalonia on 01 October 2017, it was argued this could have constituted a breach of fundamental EU values, notably democracy and respect for human rights, triggering Article 7 TEU. See: Human Rights Watch, ‘Spain: Police Used Excessive Force in Catalonia’ (12 October 2017). Available at: https://www.hrw.org/news/2017/10/12/spain-police-used- excessive-force-catalonia (last accessed: 08 November 2018); Richard Caplan and Zachary Vermeer, ‘The European Union and Unilateral Secession: The Case of Catalonia’ (2018) Uncorrected page proofs (cited with permission), 763.

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The CJEU can provide guidance on an interpretation of the Treaties, including general principles of EU law.814 This would, therefore, also include the values of the EU, such as the rule of law and democracy. Specifically, it would be valuable for the CJEU to rule on and clarify the functional relationship and hierarchy between the rule of law and democracy in Article 2 TEU, how the values in Article 2 TEU are to be understood and applied (if there is to be harmony between constitutional principles), including their material scope, and the relationship between the different provisions of the Treaties that might come into conflict in a case of secession, including Article 3(1), 4(1), 48 and

49 TEU. For example, the CJEU could rule on the appropriate and correct legal basis for a region/territory to re-join the EU following a case of secession, as a matter of procedural law, including the factors to be taken into account or what would constitute incorrect legal considerations when determining the correct legal basis. The court may do this according to its understanding of the primary law in the Treaties and its settled case law.

7.3.1 Preliminary Reference Procedure

It is envisaged the CJEU may have an opportunity to clarify the law in this area if a national court requested a preliminary ruling, under Article 267 TFEU, on the interpretation of EU law arising out of or involving a case of secession.

However, the intervention and involvement of the CJEU would be conditional on such a scenario being raised before the national court of a Member State.

The CJEU may, for example, be asked by an individual EU citizen for

814 Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law (Cambridge University Press 2015), 180.

264 clarification on the continuing operation of EU citizenship in a seceding entity.815 Indeed, in a parallel context, with respect to the UK’s expected withdrawal from the EU, The District Court of Amsterdam requested a preliminary ruling from the CJEU on whether and on what basis UK citizens would retain or automatically lose their right to EU citizenship and the rights and freedoms deriving from EU citizenship, under Article 20(1) TFEU, in the event of the UK’s withdrawal from the EU.816 However, the decision of the

Amsterdam District Court to make a reference to the CJEU was challenged by the Netherlands government, by way of appeal817 and following the

Amsterdam Court of Appeal decision, it was held it would not refer the matter to the CJEU.818 Clarification from the CJEU could also be sought in a situation where, for example, a company in an EU Member State supplied goods to

Scotland but was charged VAT on the basis of supplying goods to a company in a non-EU Member State.819 In addressing the question over the applicable

815 The Scottish Parliament, ‘Annex A - Written Evidence from Sir David Edward to European and External Relations Committee (Scotland’s position in the European Union)’ 2nd Meeting 2014 Session 4 (23 January 2014) 1, 12 - 14. Available at: http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Meeting%20Papers/ Public_papers_23_Jan_2014.pdf (last accessed: 18 May 2017), and; Henri de Waele, ‘Secession and Succession in the EU Fuzzy Logic, Granular Outcomes?’ In Catherine Brölmann and Thomas Vandamme (eds.) Secession within the Union: intersection points of international and European law: collected think pieces (Amsterdam Center for International Law 2014) 1, 38. 816 Debra Williams, Victoria Hampton, Stephen Huyton, Nicholas Nugent, Michael Waters, Brexpats - Hear Our Voice and the Commercial Anglo Dutch Society v State of Netherlands and the Municipality of Amsterdam (Interim decision of the District Court of Amsterdam dated 07 February 2018), 12 (para. 5.27). Available at: https://www.eucitizenship.org.uk/assets/pdf/ruling_district_court_20180207.pdf (last accessed: 22 June 2018). 817 See Decision of 20 February 2018. See also: Netherlands State reasons for appealing. Available at: https://www.dropbox.com/s/mwsyt0qyurb3haj/Dutch%20Government%20Grounds%20of%20A ppeal.pdf?dl=0 818 See Decision of 19 June 2018 (judgment is in Dutch - https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHAMS:2018:2009&showbutton =true). 819 Richard Hoyle, ‘Scottish Independence and EU Membership: Part II’ (16 September 2014). EJIL: Talk! Blog of the European Journal of International Law. Available at: http://www.ejiltalk.org/12126/ (last accessed: 14 July 2016).

265 rules on VAT, the CJEU would, first, have to answer the question on whether

Scotland would be classed as being inside or outside the EU. This would require the Court to address the appropriate and correct legal basis for a region/territory to re-join the EU following a case of secession (Article 48 or 49

TEU).

A national court is bound to apply the CJEU’s interpretation of EU law to the facts of the case.820 Preliminary rulings from the ECJ/CJEU tend to be either very detailed, leaving the national court little room for discretion or sufficiently vague so as to leave considerable discretion in how they decide/resolve the dispute at hand.821 Such a ruling would bind not only the national court that requested it, but also the national courts of other EU Member States.822 Thus, such a ruling would be capable of ensuring the consistent interpretation and application of EU law amongst Member States, which would help to provide legal certainty.

It has been noted the European Court of Human Rights would provide a useful reference point due to its experience in balancing rights.823 The CJEU's main

820 Case 52/76 Benedetti v Munari [1977] ECR I-163, at para. 26; Davies Chalmers and Monti page 192 821 Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law (Cambridge University Press 2015), 193. 822 On the binding force of a judgment declaring an EU measure invalid on all Member States (not just the referring court) see: Case C-66/80 International Chemical Corp v Amministrazione Finanze [1981] ECR I-1191, at para. 13; Case C314/85 Firma FotoFrost v HZ Lubeck-Ost [1987] ECR I-4199. Equally, with respect to the binding nature of judgments interpreting EU law, see: Case C-453/00 Kuhne and Heitz v Productschap voor Pluimvee en Eieren [2004] ECR I-837 and Case C-212/04 Adeneler [2006] ECR I-6057. See, for contrasting views: Advocate General Darmon in Case 338/85 Pardini v Ministerio del Commercio con L’Estro [1988] ECR I-2041; Advocate General Van Gerven in Case C145/88 Torfaen BC v B & O [1989] ECR I-765; Advocate General Lenz in Case 103/88 Fratelli Constanzo v Milano [1989] ECR I-1839 823 Bilyana Petkova, ‘Towards an internal hierarchy of values in the EU legal order: balancing the Freedom of Speech and Data Privacy’ (2016) 23(3) Maastricht Journal of European and Comparative Law 421, 422. Indeed, the ECtHR has recognised a hierarchy of rights,

266 task in this regard is: “…not to prioritise one right over the other. Instead, on the basis of a gradually emerging internal hierarchy of values in the EU legal order, the CJEU can justify when one aspect of a right might under the circumstances of a particular case be deemed more important than the aspect of another right”.824 Thus, the court’s analysis of the relationship between the values in Article 2 TEU is expected to provide a more nuanced picture than simply choosing one value or principle over the other, but instead clarifying when the legality criteria of the rule of law could be more important than the rights of the majority to determine their future, according to the democratic principle in Article 2 TEU. This should be the case in the context of unilateral secession not carried out in accordance with the constitutional requirements of a Member State. Thus, the CJEU would need to consider the extent to which the rule of law criteria had been satisfied. The court might consider if the constitution of a Member State provided for secession and whether there was a lawfully held referendum, with a clear legal basis which provided for a legally binding outcome (as opposed to being mere advisory or consultative).

Thus, the CJEU would need to determine if the outcome of a referendum possessed democratic legitimacy. The ECJ has been825 and may be invited in the future to clarify the content of Article 2 TEU.826 In Levent Redzhebv

recognising the right to life as the “the supreme value in the hierarchy of human rights”. For example, see Streletz, Kessler and Krenz v Germany (2001) EHRR 31, at paras. 72, 87 and 94 and Tysiac v Poland (2007) 45 EHRR 42, at para. 102. 824 Bilyana Petkova, ‘Towards an internal hierarchy of values in the EU legal order: balancing the Freedom of Speech and Data Privacy’ (2016) 23(3) Maastricht Journal of European and Comparative Law 421, 422. 825 Carlos Closa and Dimitry Kochenov, Reinforcing Rule of Law Oversight in the European Union (1st ed., Cambridge University Press 2018), 69 (footnote 41); Christophe Hillion, ‘Overseeing the rule of law in the European Union: Legal mandate and means’ (2016) 1 European Policy Analysis 1, 6. 826 Christophe Hillion, Editorial comments: ‘Safeguarding EU values in the Member States – Is something finally happening?’ (2015) 52 Common Market Law Review 619, 626.

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Yumer v Direktor na Teritoriyalna direktsia na Natsionalna agentsia za prihodite - Varna827, the CJEU was in principle able to interpret Article 2 TEU, but the ECJ lacked jurisdiction to answer the questions referred by the national court.828

7.3.2 Infringement Procedure

There is also a potential role for the CJEU to provide clarification on EU law in the context of secession through the infringement procedure. The European

Commission, as the ‘guardian of the Treaties’, could take infringement action against a Member State, for a failure to fulfil its obligations under the Treaties.

Unlike Article 7 TEU, Article 258 TFEU only governs situations that fall exclusively within the scope of EU law. Thus, whilst the legality of secession is a matter of national law, the procedural aspects of secession associated with a seceding territory’s future relationship with and/or membership of the EU fall within the field of EU law. It is important to note a combined reading of Article

2 TEU with other treaty provisions could allow the Commission to take infringement action against a Member State, for a failure to fulfil its obligations

827 Request for a preliminary ruling from the Administrativen sad Varna (Bulgaria) lodged on 23 September 2013, regarding Case C-505/13 Levent Redzheb Yumer v Direktor na Teritorialna direktsia na NAP – Varna. Available at: http://curia.europa.eu/juris/document/document.jsf?docid=144318&doclang=EN (last accessed: 19 June 2018). See also: Case C-146/13 Spain v European Parliament and Council of the European Union, Opinion of Advocate General Yves Bot of 18 November 2014, at paras. 35 - 38. 828 Order of the Court (Ninth Chamber) of 17 July 2014 (request for a preliminary ruling from the Administrativen sad — Varna (Bulgaria)) — Levent Redzheb Yumer v Direktor na Teritoriyalna direktsia na Natsionalna agentsia za prihodite — Varna. Available at: https://eur- lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:62013CB0505&from=IT (last accessed: 19 June 2018). See also: Advocate General’s Opinion in Case C-146/13 Spain v Parliament and Council and C-147/13 Spain v Council, at paras. 35 – 38. As noted in Christophe Hillion, ‘Overseeing the rule of law in the European Union – Legal Mandate and Means (2016) 1 European Policy Analysis 7, at footnote 42.

268 under the Treaties.829 In the case of secession, infringement action could arise out of a Member State’s failure to fulfil its obligations on the basis of a combined reading of Articles 2, 4(3) and 49 TEU. For example, unilateral secession would breach the rule of law in Article 2 TEU and Member States must respect and commit to the values in Article 2 TEU in order to accede to the EU. The Commission could take the opportunity to clarify the contents and application of the values in Article 2 TEU, as well as other relevant provisions in the Treaties. If a Member State did not comply with a reasoned opinion of the Commission (and, in any event, once the time period set out in the reasoned opinion has elapsed), under Article 258 TFEU, the Commission has discretion830 to bring the matter before the CJEU for a declaration of non- compliance with the Treaties.831 However, it is noted that very few actions have reached the ECJ.832 Prior to the introduction of the use of sanctions in

Article 260 TFEU aimed at enforcement833, compliance with these judgments was uncertain.834

829 Carlos Closa, Dimitry Kochenov and Joseph Weiler, ‘Reinforcing Rule of Law Oversight in the European Union’ EUI Working Paper RSCAS 2014/25 1, 9 - 10. Available at: http://cadmus.eui.eu/bitstream/handle/1814/30117/RSCAS_2014_25_FINAL.pdf?sequence=3 (last accessed: 11 June 2018); Laurent Pech and Sébastien Platon, ‘Rule of Law backsliding in the EU: The Court of Justice to the rescue? Some thoughts on the ECJ ruling in Associação Sindical dos Juízes Portugueses’ Blog - EU Law Analysis (13 March 2018). Available at: http://eulawanalysis.blogspot.co.uk/2018/03/rule-of-law-backsliding-in-eu-court-of.html (last accessed: 04 April 2018). András Jakab and Dimitry Kochenov, The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (1st ed., Oxford University Press 2017), 19 - 20. 830 Case 247/87 Star Fruit Company v Commission [1989] ECR I-291. 831 Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law (Cambridge University Press 2015), 363. 832 Ibid, 363. 833 Ibid, 373; Brian Jack, ‘Article 260(2) TFEU: An effective judicial procedure for the enforcement of judgments? (2013) 19 European Law Journal 404, 412 – 413. 834 Ibid, 371.

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If a seceded entity gained its independence unilaterally, the European

Commission may, however, be unable to start infringement proceedings, for a failure to fulfil a treaty obligation, against a region/territory of an EU Member

State. A region is “part and parcel of a Member State” and, therefore, bound by the EU Treaties.835 However, Member States bear direct or sole liability before the EU institutions, for actions or breaches of EU law attributable to regional or devolved governments.836 This is also reflected in Article 288(3)

TFEU, which states that ‘national authorities’ are responsible for deciding upon how the result in a directive shall be achieved.837 Indeed, according to the ECJ in Commission v Austria:

“Though each Member State may freely allocate areas of internal

legal competence as it sees fit, the fact remains that it alone is

responsible to the Community under Article 226 EC for compliance

with obligations arising under Community law”.838

835 Koen Lenaerts, ‘EU Federalism in 3-D’, at 16 (Kindle Edition), in Elke Cloots, Geert de Baere and Stefan Sottiaux (eds.) Federalism in the European Union (Hart Publishing 2012). 836 Case C-424/97 Salomone Haim v Kassenzahnärztliche Vereinigung Nordrhein (Reference for a preliminary ruling from the Landgericht Düsseldorf) ECR I-5148, 5159 (para. 28); Cristina Bertolino, ‘State accountability for violations of EU law by Regions: infringement proceedings and the right of recourse’ (2013) 5(2) Perspectives on Federalism 156, 160 and 167. Available at: http://www.on-federalism.eu/attachments/165_download.pdf (last accessed: 09 August 2018); Michèle Finck, Subnational Authorities in EU Law (Oxford Studies in European Law) (Oxford University Press 2017), 75 and 81 (Kindle Edition), and; Koen Lenaerts, ‘EU Federalism in 3-D’, at 16 (Kindle Edition), in Elke Cloots Geert de Baere and Stefan Sottiaux (eds.) Federalism in the European Union (Hart Publishing 2012). 837 Michèle Finck, Subnational Authorities in EU Law (Oxford Studies in European Law) (Oxford University Press 2017), 76 (Kindle Edition). 838 Case 358/03 Commission of the European Communities v Republic of Austria [2004] ECR I-12055, at para. 13.

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The same was reiterated, in almost identical terms, in Commission v Italy.839

From an EU perspective, Member States are considered to be monolithic or single entities, which precludes sub-state bodies from having any formal legal status.840 Regions are thus considered to be a “purely internal phenomenon”.841 This even includes ‘constitutional regions’ with pronounced legislative or constitutional competences, such as Scotland, Flanders and

Catalonia.842 However, in terms of national law, Member States have developed internal means or constitutional provisions for holding and deciding which national authorities are to be held to account and liable to provide compensation.843 For example, it is noted Italy formally introduced a right of recourse against non-compliant regions and local institutions in order to encourage adherence to EU obligations.844 The right of recourse includes the right of the state to request indemnity/compensation by way of monetary sanctions imposed by the CJEU following infringement proceedings.845

839 Case 87/02 Commission of the European Communities v Italian Republic [2004] ECR I-5975, at para. 38. 840 Michèle Finck, Subnational Authorities in EU Law (Oxford Studies in European Law) (Oxford University Press 2017), 6 - 9 (Kindle Edition). 841 Joxerramon Bengoetxea, ‘Autonomous Constitutional Regions in a Federal Europe’, at 230 (Kindle Edition), in Elke Cloots, Geert de Baere and Stefan Sottiaux (eds.) Federalism in the European Union (Hart Publishing 2012). 842 Michèle Finck, Subnational Authorities in EU Law (Oxford Studies in European Law) (Oxford University Press 2017), 7 (Kindle Edition). 843 Ibid, 81. 844 Cristina Bertolino, ‘State accountability for violations of EU law by Regions: infringement proceedings and the right of recourse’ (2013) 5(2) Perspectives on Federalism 156, 163. Available at: http://www.on-federalism.eu/attachments/165_download.pdf (last accessed: 09 August 2018). 845 Article 1 (paras. 1213 – 1223) of Law No. 296/2006. This provision was also included in Italy’s State Community Law (legge comunitaria statale), with the addition of Article 16 bis to Law 11/2005 - Law No. 34 of 25 February 2008, Article 6, para. I., lit. e), and par. II. Lastly, the right of recourse has been regulated in detail under Article 43 of the recent Law 234/2012 that repealed in full Law 11/2005. As noted in: Cristina Bertolino, ‘State accountability for violations of EU law by Regions: infringement proceedings and the right of recourse’ (2013) 5(2) Perspectives on Federalism 156, 167 - 168 (and footnotes XIV and XV). Available at: http://www.on-federalism.eu/attachments/165_download.pdf (last accessed: 09 August 2018).

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7.3.3 An assessment of this method or model against the

evaluative criteria

In order to provide legal certainty, it is important any EU method/model is legally binding so that it can ensure a consistent and uniform interpretation and application of EU law amongst Member States. The doctrine of stare decisis and judicial precedent do not apply to decisions of the CJEU.846 Decisions of the CJEU are only binding on those to whom they are addressed; they do not form a source of law outside the context of the case in which the particular decision was reached.847 However, in practice, there is an effective system of de facto precedent and decisions which produce legal effects.848 Indeed, it is generally accepted most of the ‘constitutional law’ of the EU has been developed, not in the Treaties, but through the case law of the ECJ.849 The

ECJ has: “worked assiduously to develop what is now a robust and taken for- granted set of practices associated with precedent”.850 Whilst the CJEU is not bound to follow previous decisions, in practice it does not depart from them.851

Some authors have pointed to the extensive citation by the ECJ of its own

846 Damian Chalmers, Gareth Davies and Giorgio Monti, European Union Law (Cambridge University Press 2015), 192; Case 61/79 Amministrazione delle finanze dello Stato v Denkavit italiana Srl ECR 1205; Joined Cases C-89/10 ad C-96/10 Q-Beef v Belgische Staat, Basschaert v Belgische Staa Judgment of 8 September 2011; Thijmen Koopmans, ‘Stare Decisis in European Law’ in David O’Keeffe and Henry Schermers (eds.) Essays in European Law and Integration (Kluwer 1982). See, further: Anthony Arnull, ‘Owning Up to Fallibility: Precedent and the Court of Justice’ (1993) 30 Common Market Law Review 247, 248. 847 See, further: Anthony Arnull, ‘Owning Up to Fallibility: Precedent and the Court of Justice’ (1993) 30 Common Market Law Review 247, 265. See further: Lionel Brown, The Court of Justice of the European Communities (3rd ed., Sweet and Maxwell 1989), 311 - 312. 848 Karen McAuliffe, ‘Precedent at the ECJ: The Linguistic Aspect’ (2013) 15 Current Legal Issues 483, 484. 849 Ibid, 485. 850 Alec Stone Sweet, The Judicial Construction of Europe (Oxford University Press 2004), 97 – 98. 851 Anthony Arnull, ‘Owning Up to Fallibility: Precedent and the Court of Justice’ (1993) 30 Common Market Law Review 247, 248.

272 cases.852 On occasion, the ECJ has regarded its previous decisions as establishing law that should be applied in later cases.853 It is noted, however, that this is nuanced by the fact that the ECJ tends to deliver rulings to a high level of generality.854

The Treaties established the constitutional basis of the ECJ/CJEU, which is considered to be central to the effective functioning of a democratic system.

As a constitutional court855, the CJEU must possess democratic legitimacy.

However, according to the traditional conception of democratic legitimacy, decisions of the CJEU arguably lack democratic legitimacy as its members are not directly elected by EU citizens. However, the CJEU differs from an ordinary constitutional court in that it is a court of a transnational polity. An ordinary constitutional court adjudicates disputes amongst parties that originate from within a national community, whereas the CJEU has to resolve conﬂicts arising between institutions of the EU, EU institutions and individual Member States and Member States themselves.856 Thus, this means the traditional

852 Alec Sweet and Margaret McCowan, ‘Decision and Precedent in European Law’, at 109 – 115 in Ola Wiklund (ed.), Judicial Discretion in European Perspective (Kluwer Law International 2003); Lisa Conant, Justice Contained: Law and Politics in the European Union (Cornell University Press 2002), 63 – 68; Anthony Arnull, ‘Owning Up to Fallibility: Precedent and the Court of Justice’ (1993) 30 Common Market Law Review 247, 252. 853 Karen McAuliffe, ‘Precedent at the ECJ: The Linguistic Aspect’ (2013) 15 Current Legal Issues 483, 484. See, further: Jan Komarek, ‘Federal Elements in the Community Judicial System: Building Coherence in the Community Legal Order’ (2005) 42(1) Common Market Law Review 9, 16. 854 Gerard Conway, The Limits of Legal Reasoning and the European Court of Justice (Cambridge University Press 2013), 245. 855 Case 294/83, Parti Écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339, at para 23: ‘…the European Economic Community is a Community based on the rule of law, in as much as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty’. By classifying the EEC Treaty as a ‘constitutional charter’, the ECJ has, in fact, attributed to itself the competences of a constitutional court. 856 Quoc Loc Hong, ‘Constitutional Review in the Mega-Leviathan: A Democratic Foundation for the European Court of Justice’ (2010) 16(6) European Law Journal 695, 696 – 698.

273 conception of democratic legitimacy cannot be applied to a transnational court in the same way as it would be with a constitutional court in a national democracy.857 It also depends on what normative model of democratic legitimacy one adopts. For example, a citizen-based model holds that a legislator receives its democratic legitimacy through the will of the people and by way of direct election/universal suffrage.

However, the concept of democratic legitimacy is not only about ensuring that only elected representatives are involved in the law-making process. It is also concerned with ensuring and protecting the rights of individuals. The ECJ has been instrumental in this regard, which has enhanced the democratic legitimacy of the Union. Indeed, the ECJ was the first to comment on democracy in its case-law.858 The case of Van Gend en Loos, for example, established the concept of direct effect and held that Community law has the ability to create rights for individuals as well as Member States.859 The Treaties provide for the ability of individuals to seek judicial review of the compatibility of national legislation with Community law before the CJEU. The case-law of the ECJ has also strengthened the protection of fundamental human rights and freedoms. In the case of Nold, the ECJ held that: “fundamental rights form an integral part of the general principles of law”.860 Decisions of the CJEU, and

857 Ibid, 696 – 697. 858 Case 18/79 Roquette Freres v Council [1980] ECR 333, at para. 33: “the fundamental democratic principle that the peoples should take part in the exercise of power through the intermediary of a representative assembly”. 859 Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 1, 2 (para. 3). 860 Case 4/73 Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities. [1974] ECR 491, at para. 13.

274 the CJEU itself, could thus be considered to be democratically legitimate on a more expansionist view of the concept of democracy.

7.4 Soft ‘law’

Policy change could be brought about through interpretative acts or communications on EU law by the European Commission. These are adopted on the Commission’s own initiative861, as the 'guardian of the Treaties’. The

Commission could indicate or summarise the way that EU law in a specific area, such as secession and EU membership, should be interpreted and applied. It could help to clarify the interpretation of a treaty provision that has an open and indeterminate character or provide clarity on texts in binding EU instruments which may be ambiguous. The European Commission uses soft law instruments to enhance the internal consistency of EU law. Such communications are systematic, as opposed to piecemeal and are proactive rather than reactive.862 They are generally issued with the purpose of clarifying and bringing together existing norms in one comprehensive document863, providing for the consistent application of EU law.864 In order to ensure the effectiveness of EU law, soft law can be used to serve as a basis for the interpretation of hard law provisions or higher norms, express general

861 Linda Senden, Soft law in European Community law (Hart Legal Publishers 2004), 487. 862 Francis Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’ (1993) 56(1) The Modern Law Review 19, 33. 863 Oana Stefan, ‘European Union Soft Law: New Developments Concerning the Divide between Legally Binding Force and Legal Effects’ (2012) 75 The Modern Law Review 879, 891. 864 Karel Wellens and Gustaaf Borchardt, ‘Soft Law in European Community Law’ (1989) 14(5) European Law Review 267, 318.

275 principles of EU law, or an array of EU values.865 Soft law in this area could therefore clarify the meaning and operation of, as well as the interaction between, a number of existing provisions of the Treaties, including different parts of the same provision, which address secession implicitly, such as

Articles 2, 3, and 4(2) and (3) TEU. Thus, such codification could constitute a source of doctrine to guide public authorities in their activities and also provide a reference point for individuals as to their rights and duties.866 The objective may be to provide guidance, transparency and legal certainty to other EU institutions, bodies and agencies, stakeholders and EU citizens.

It has been suggested the European Council is best placed to facilitate political agreement and bring about EU policy change, owing to its responsibility, under

Article 15(1) TEU, to provide the impetus for the Union’s development and define its general political direction and priorities.867 This could be achieved through the introduction of EU secondary legislation and, specifically, the adoption of conclusions and a strategic agenda during European Council

865 Francis Snyder, ‘Interinstitutional Agreements: Forms and Constitutional Limitations’ in Gerd Winter, Sources and Categories of European Union Law: A Comparative and Reform Perspective (Nomos Verl-Ges, 1996); Oana Stefan, ‘Soft Law and the Enforcement of EU law’, at 202, in András Jakab and Dimitry Kochenov, The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (1st ed., Oxford University Press 2017); Karel Wellens and Gustaaf Borchardt, ‘Soft Law in European Community Law’ (1989) 14(5) European Law Review 267, 311 - 318. 866 Nina Tornberg, ‘The Commission’s Communications on the General Good-Magna Carta or Law-Making? (1999) 10(1) European Business Law Review 24, 27. 867 Alfonso González Bondia, ‘Legal scenarios for the European Union’s relations with new states emerging from a secession process from a Member State’ (23 July 2015). Available at: http://perspectives-estat.espais.iec.cat/files/2015/07/IEC-Xerrada_IEC_AGB_17022014_corr- web-1_EN-2.pdf (last accessed: 06 June 2018), and; Joan Ridao Martin and Alfonso González Bondia, ‘La Unión Europea ante la eventual creación de nuevos Estados surgidos de la secession de Estados miembros’ (2014) Revista de Derecho de la Union Europea 363, 382. See, generally, on the role of the European Council as a ‘treaty negotiator and constitutional motor’: Armin von Bogdandy and Jürgen Bast, Principles of European Constitutional Law (2nd ed., Hart Publishing 2008), 173.

276 meetings. In cases where a seceding entity achieved its independence unlawfully, a breach of the EU’s values could, ultimately, provide the Council with a formal basis from which to intervene and clarify the law in this area. A breach of one or a number of the EU’s values in Article 2 TEU may be enforced through the issue of sanctions in Article 7 TEU. Article 7 TEU allows for a preventative and monitoring mechanism to determine if there is a clear risk of a serious breach of any of the EU’s values. As a part of that process, and before issuing sanctions, the Council may address recommendations to a

Member State on how to resolve the issue. Article 7 TEU allows the EU to take action in situations that fall within the exclusive competence of a Member

State.868 In the event a seceded entity breached the rule of law in Article 2

TEU, in the manner of its secession, this procedure could provide the Council with an opportunity to clarify the contents and application of the values in

Article 2 TEU, as well as any other relevant provisions in the Treaties, to a case of unilateral secession. It is important to note, however, that this procedure is reserved for exceptional cases.

7.4.1 An assessment of this method or model against the

evaluative criteria

According to Article 288 TFEU, soft law measures have no binding legal force.

These acts do not, therefore, ensure the uniform application of EU law in

868 Commission of the European Communities, Communication from the Commission to the Council and the European Parliament on Article 7 of the Treaty on European Union - respect for and promotion of the values on which the Union is based COM(2003) 606 final, 5 (para. 1.1). Available at: http://ec.europa.eu/transparency/regdoc/rep/1/2003/EN/1-2003-606-EN-F1-1.Pdf (last accessed: 11 June 2018).

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Member States.869 However, in Grimaldi, as well as in other cases870 the ECJ held that despite soft law having no legal force and being excluded from judicial review, soft law “cannot be regarded as having no legal effect” and “must be taken into consideration” when deciding on national cases.871 Soft law can produce legal effects on the basis of the principles of legitimate expectation and equal treatment and by functioning as standards of administrative and judicial interpretation and review.872 Such measures serve to act as ‘rules of conduct which have no legally binding force but may have legal or practical effects’.873

A distinction is therefore drawn between legal force and legal effect. Thus, soft law may serve as a persuasive authority or pave the way to binding acts or decisions.874 Soft law also tends to include wording which suggests it is to be followed. The legal effects of soft law can include, for example, providing a normative framework for future negotiations, potential arguments or

869 Linda Senden and Martin van den Brink, European Parliament - Checks and balances of soft EU rule-making’ Policy department - Citizens rights and constitutional affairs (2012), 17. 870 See, for example: Case C-207/01 Altair Chimica v Commission [2003] ECR I-8875, at para. 41, Case C-415/07 Lodato [2009] ECR I-2599, at para. 32, Joined Cases 253/78 and 1 to 3/79 Procureur de la Republique and other v Bruno Giry and Guerlain SA and others [1980] ECR 2327, at para. 13, Case 99/79 Lancome v Etos [1980] ECR 2511, at para. 11. 871 Case-C322/88 Salvatore Grimaldi v Fonds des maladies professionnelles [1989] ECR I- 4407, at 4421 (para. 18) and Case C-207/01 Altair Chimica [2003] ECR I-8875, at para. 41. 872 Linda Senden and Martin van den Brink, European Parliament - Checks and balances of soft EU rule-making’ Policy department - Citizens rights and constitutional affairs (2012), 16. 873 See Commission v Council [2004] ECR I-4829 and Case C-16/16P Belgium v Commission [2018] ECR 79, at para. 44; Linda Senden, Soft law in European Community law (Hart Legal Publishers 2004), 112; Francis Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’ (1993) 56(1) The Modern Law Review 19, 32 and 64. 874 Paul Craig and Gráinne de Búrca, EU Law: text, cases and materials (Oxford University Press 2011), 107 - 108, and; Oana Stefan, ‘European Union Soft Law: New Developments Concerning the Divide between Legally Binding Force and Legal Effects’ (2012) 75 The Modern Law Review 879, 880 and 883.

278 conflicts.875 Soft law is increasingly being relied upon in EU law876 and it can have important consequences for institutions, Member States and EU citizens.

It can gradually become ‘politically, socially, and morally binding for the actors involved’.877 The ECJ has admitted certain binding legal effects of soft law instruments, although only in limited circumstances.878 They can create legal obligations for the enacting institution and the CJEU can require the institution to comply with such instruments.879 There is also the argument that Member

States should comply with soft law on the basis of a combined reading of the principle of sincere or loyal cooperation, under Article 4(3) TEU and Article

17(1) TEU which, when read together, require cooperation between Member

States and EU institutions.880

National procedural autonomy and the discretion of national authorities appears difficult, however, to reconcile with criteria such as ensuring consistent application of EU law or legitimate expectations and certainty.881

875 Francis Snyder, ‘Interinstitutional Agreements: Forms and Constitutional Limitations’, at 463, in Gerd Winter, Sources and Categories of European Union Law: A Comparative and Reform Perspective (Nomos Verl-Ges 1996); Karel Wellens and Gustaaf Borchardt, ‘Soft Law in European Community Law’ (1989) 14(5) European Law Review 267, 311 – 318. 876 Oana Stefan, ‘European Union Soft Law: New Developments Concerning the Divide between Legally Binding Force and Legal Effects’ (2012) 75 The Modern Law Review 879, 880. 877 Kerstin Jacobsson, ‘Soft regulation and the Subtle Transformation of States: the case of EU employment policy’ (2004) 14(4) Journal of European Social Policy 355, 359. 878 Oana Stefan, ‘European Union Soft Law: New Developments Concerning the Divide between Legally Binding Force and Legal Effects’ (2012) 75 The Modern Law Review 879, 889. 879 Case C-51/92 Hercules Chemicals NV v Commission of the European Communities [1999] ECR I-03571. 880 John Lang, The duties on cooperation on national authorities and courts under Article 10 EC: two more reflections’ (2001) 26 European Law Review 84, 85; Oana Stefan, ‘Soft Law and the Enforcement of EU law’, at page 205, in András Jakab and Dimitry Kochenov, The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (1st ed., Oxford University Press 2017). 881 Oana Stefan, ‘Soft Law and the Enforcement of EU law’, at 216, in András Jakab and Dimitry Kochenov, The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (1st ed., Oxford University Press 2017).

279

National authorities can depart from soft law in order to accommodate national specificities or particular circumstances that need to be assessed on a case- by-case basis, but if they decide not to rely on EU soft law, they would need to give reasons or issue their own general soft law by laying down guidelines on national practice.882 Soft law instruments, further, require national courts to justify alternative interpretations and/or to make a reference for a preliminary ruling by the CJEU.

Unlike an amendment to the EU Treaties, soft law can be adopted expediently and changed, allowing the European Commission to provide national authorities and individuals with supplementary or additional information on the application of EU law. However, this circumvents more democratically legitimate methods of decision-making883, such as the right of legislative initiative by the European Commission and consultation with the European

Parliament in the ordinary legislative procedure.884 Moreover, apart from recommendations adopted by the Council under Art 292 TFEU, the Treaties do not contain procedural rules on the adoption of soft law measures which does not make the decision making process transparent or allow for accountability.885 Soft law must not impose any new legal obligations on

882 Case C-226/11 Expedia Inc v Autorité de la concurrence and Other [2012] ECR, per Advocate General Kokott, at paras 40 – 41 and at footnote 40. 883 Oana Stefan, ‘Soft Law and the Enforcement of EU law’, at 215, in András Jakab and Dimitry Kochenov, The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (1st ed., Oxford University Press 2017). 884 Herwig Hoffmann, ‘Negotiated and Non-negotiated Administrative Rule Making the example of EC Competition Policy’ (2006) 43(1) Common Market Law Review 153, 172; Linda Senden and Martin van den Brink, European Parliament - Checks and balances of soft EU rule-making’ Policy department - Citizens rights and constitutional affairs (2012), 16. 885 Linda Senden and Martin van den Brink, ‘European Parliament - Checks and balances of soft EU rule-making’ Policy department - Citizens rights and constitutional affairs (2012), 17.

280

Member States.886 Legitimacy issues could arise if the European Commission interpreted EU law too flexibly, creating confusion and even adding to existing legal obligations.887 This has an impact on legal certainty, transparency, democratic decision-making and institutional balance.888 It is important to note there is no treaty based obligation or duty to conduct open and public consultations in relation to soft administrative rule making. However, consultation and impact assessments on interpretative acts do occur in practice.889 Whilst the European Commission does undertake public consultation and stakeholder and expert participation before publishing soft law provisions, these consultative procedures are not always systematic, consistent, structured, are less rigorous and there is little information on how they occur.890

7.5 A role for the EU as a mediator in intra-state secessionist

conflicts

As it has been noted above, in chapter six, section 6.1, there have been calls for EU intervention in the resolution of secession conflicts at an intra-state

886 Francis Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’ (1993) 56(1) The Modern Law Review 19, 33; Oana Stefan, ‘European Union Soft Law: New Developments Concerning the Divide between Legally Binding Force and Legal Effects’ (2012) 75 The Modern Law Review 879, 890. 887 Silvère Levefre, ‘Interpretative communications and the implementation of community law at national level’ (2004) European Law Review 29, 809. 888 Linda Senden and Martin van den Brink, ‘European Parliament – Checks and balances of soft EU rule-making’ Policy department - Citizens rights and constitutional affairs (2012), 16. 889 Ibid, 31. 890 Joanne Scott, ‘In Legal Limbo: Post-Legislative Guidance as a Challenge for European Administrative Law’ (2011) 48(2) Common Market Law Review 329, 336; Robert Baldwin, Rules and Government (Clarendon Press 1995), 284; Linda Senden and Martin van den Brink, ‘European Parliament - Checks and balances of soft EU rule-making’ Policy department - Citizens rights and constitutional affairs (2012), 37.

281 level. States may involve the active participation of third parties in the mediation of disputes, subject to the agreement of all parties.891 This can include a global or regional international organisation, such as the EU.892 The

EU promotes a commitment to alternative dispute resolution, such as mediation, in Member States.893 Indeed: “It is difficult to find a region of the world where the EU is not active to some extent in mediation and dialogue.”894

The Concept for Strengthening EU Mediation and Dialogue Capacities (2009) clarifies the policy basis for the EU’s involvement in mediation.895

Mediation aims to reduce the differences or find a mutually acceptable and voluntary compromise between the parties, leading to conflict transformation and resolution.896 It seeks to provide the parties with a better understanding of each other's case through a process of investigation into and evaluation of the differnt aspects of the dispute, including the opportunity to define the terms of a solution capable of being agreed between the parties.897 However, the political sensitivity of the mediation process might mean the parties are

891 Office of Legal Affairs, Handbook on the Peaceful Settlement of Disputes between States (United Nations, 1992), 33 (paras. 101 - 102). 892 Ibid, 43 (para. 133). 893 Council of the European Union, ‘Concept on Strengthening EU Mediation and Dialogue Capacities’ (10 November 2009). Available at: http://eeas.europa.eu/archives/docs/cfsp/conflict_prevention/docs/concept_strengthening_eu_ med_en.pdf (last accessed: 03 December 2019), 6. 894 Andrew Sherriff and Volker Hauck, ‘Study on EU lessons learnt in mediation and dialogue’, v. Available at: https://ecdpm.org/wp-content/uploads/2013-Glass-Half-Full-Study-EU-Lessons- Learnt-Mediation-Dialogue.pdf (last accessed: 01 December 2019). 895 Catriona Gourlay, The European Union as Peacemaker – Enhancing EU Mediation Capacity Background Paper European Policy Centre. Available at: http://eu2013.ie/media/eupresidency/content/meetingagendasanddocs/dfat/The-EU-as- Peacemaker---Background-Paper.pdf (last accessed: 03 December 2019). 896 Council of the European Union, ‘Concept on Strengthening EU Mediation and Dialogue Capacities’ (10 November 2009). Available at: http://eeas.europa.eu/archives/docs/cfsp/conflict_prevention/docs/concept_strengthening_eu_ med_en.pdf (last accessed: 03 December 2019), 2 – 3; Office of Legal Affairs, Handbook on the Peaceful Settlement of Disputes between States (United Nations, 1992), 40 (para. 123). 897 Office of Legal Affairs, Handbook on the Peaceful Settlement of Disputes between States (United Nations, 1992), 40 – 41 and 45.

282 reluctant to formally record, except in general terms, all of the required or necessary issues/details.898 Parties may also be unwilling to compromise or withdraw from the mediation process. Accordingly, the process is dependent on political will and Member States may either limit or open up space for EU mediation and dialogue.899 This might ultimately affect the outcome or solution to a dispute and reduce its effectiveness. Furthermore, it has been noted there are instances in which the EU may have no effect in conflict zones, leading to conflict retrenchment. Thus, this may actually create further secessionist tendencies. A notable example would be the problems around the imposition of a ‘hard border’ in Norther Ireland.900

Mediation at an EU-level can involve, either, the EU as the lead mediator (this could be the High Representative, the EU Presidency, EU Special

Representatives, Heads of EU delegations or European External Action

Service officials representing the Union) including the direct parties to the conflict, or the indirect involvement of the EU in cooperation and coordination with other actors.901 Thus, the EU is involved in mediation processes at various levels, including with governments of Member States, but also with

898 Office of Legal Affairs, Handbook on the Peaceful Settlement of Disputes between States (United Nations, 1992), 42 (para. 143). 899 Andrew Sherriff and Volker Hauck, ‘Study on EU lessons learnt in mediation and dialogue’, viii. Available at: https://ecdpm.org/wp-content/uploads/2013-Glass-Half-Full-Study-EU- Lessons-Learnt-Mediation-Dialogue.pdf (last accessed: 01 December 2019). 900 Nathalie Tocci, ‘Conflict Resolution in the European Neighbourhood: The role of the EU as a Framework and as an Actor’ (Robert Schuman Centre for Advanced Studies, European University Institute) EUI Working Paper Series RSCAS No. 2004/29 1, 15 – 20. 901 Council of the European Union, ‘Concept on Strengthening EU Mediation and Dialogue Capacities’ (10 November 2009). Available at: http://eeas.europa.eu/archives/docs/cfsp/conflict_prevention/docs/concept_strengthening_eu_ med_en.pdf (last accessed: 03 December 2019), 4. 901 Office of Legal Affairs, Handbook on the Peaceful Settlement of Disputes between States (United Nations, 1992), 40 – 41 and 45.

283 international and regional organisations, and local political and civil society actors. This ensures both a ‘top-down and a bottom-up approach’.902 A holistic multilevel and party approach903 to conflict resolution therefore promotes democracy and civil participation at a ‘grassroots level’, increasing the legitimacy and representativeness of mediation negotiations.904

It is suggested the Organization for Security and Cooperation in Europe or the

Council of Europe, which aims to promote the rule of law and human rights in

Europe, may be the most suitable forum for multilateral dialogue and conflict resolution. For example, it could be well placed to mediate any conflicts between the government of Spain and Catalonia with regard to Catalonia’s right to determine its political future.905 In accordance with the Common

Foreign and Security Policy, in order to safeguard the Unions “values, fundamental interests, security, independence and integrity…preserve peace, prevent conflicts and strengthen international security”906, the Council could adopt a decision that would allow the EU to engage in mediation or act as a

902 Council of the European Union, ‘Concept on Strengthening EU Mediation and Dialogue Capacities’ (10 November 2009). Available at: http://eeas.europa.eu/archives/docs/cfsp/conflict_prevention/docs/concept_strengthening_eu_ med_en.pdf (last accessed: 03 December 2019), 7; Andrew Sherriff and Volker Hauck, ‘Study on EU lessons learnt in mediation and dialogue’, 1. Available at: https://ecdpm.org/wp- content/uploads/2013-Glass-Half-Full-Study-EU-Lessons-Learnt-Mediation-Dialogue.pdf (last accessed: 01 December 2019). 903 Andrew Sherriff and Volker Hauck, ‘Study on EU lessons learnt in mediation and dialogue’, ix. Available at: https://ecdpm.org/wp-content/uploads/2013-Glass-Half-Full-Study-EU- Lessons-Learnt-Mediation-Dialogue.pdf (last accessed: 01 December 2019). 904 European Peacebuilding Liaison Office, ‘EU Support to peace mediation: developments and challenges’ (2017). Available at: http://eplo.org/wp- content/uploads/2017/05/EPLO_Policy_Paper_EU_Support_to_Peace_Mediation.pdf (last accessed: 03 December 2019). 905 Nicolas Levrat, Sandrina Antunes, Guillaume Tusseau and Paul Williams, ‘The legitimacy of Catalonia’s exercise of its right to decide: a report by a commission of international experts’, 131. Available at: http://exteriors.gencat.cat/web/.content/00_ACTUALITAT/notes_context/FULL- REPORT-Catalonias-legitimate-right-to-decide.pdf (last accessed: 08 November 2018). 906 Article 21(2) TEU.

284 principal actor in negotiations over the resolution/settlement of any intra-state conflict, by defining the relevant actions to be undertaken by the Union.907

However, the adoption of a Common Foreign and Security Policy decision is unlikely, as such a decision can only be used in relation to the external action of the EU and cannot be used in relation to an area that is within the territory of the EU.908

7.5.1 An assessment of this method or model against the

evaluative criteria

If one accepts the applicability of international law to EU law, under Article 33 of the UN Charter, states are under a general obligation to settle disputes peacefully and in good faith909 and are free to choose the method for dispute resolution910, such as mediation. On its face, this provision does not prevent the EU from having a role in the settlement of disputes between states.

According to the mainstream view, it applies to disputes between states, rather than intra-state disputes. It also needs to be read together with Article 2(7) of the UN Charter: “Nothing contained in the present Charter shall authorize the

United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state…”. However, in practice, the Security

Council can declare that matters within a state may threaten international peace or security which allow it to intervene/adopt resolutions in relation to the matter. Under Article 39 of the UN Charter, the Security Council has taken

907 Article 25(b)(i) TEU. 908 Article 21 TEU. 909 Article 33 of the United Nations Charter (1945). 910 Office of Legal Affairs, Handbook on the Peaceful Settlement of Disputes between States (United Nations, 1992), 7 (para. 19).

285 action, for example, where internal disturbances within a state pose a risk of mass cross-border migration, or where genocide is threatened or taking place within a state. Therefore whilst Article 33 of the UN Charter refers to inter-state disputes, there are circumstances where it might also apply to an intra-state disputes. In relation to Catalonia, the denial of self-determination might be such an issue.

At an EU-level, apart from references in the Treaties to the Union’s general aim ‘to promote peace’ in its relations with the wider world911 and “to preserve peace, prevent conflicts and strengthen international security”912, there is no explicit reference in the Treaties to the role of the EU in intra-state conflicts within its own territory. The terms of Articles 4(1), 4(2) and 5(1) TEU preclude the EU from becoming involved in or from undertaking an active role in relation to an issue that touches upon a Member State’s national sovereignty.

Moreover, conflict resolution does not appear in Title I of the Treaty on the

Functioning of the EU, which addresses the categories and areas of EU competence. As it was made clear, in chapter 2, section 2.2.2, above, according to Article 4(2) TEU, the EU must respect the national constitutional identities of its Member States. According to Articles 4(1) and 5(2) TEU, and the principle of conferral, competences not conferred upon the Union remain with the Member States.

911 Article 3(1) and (5), 8(1), 21(2)(c) TEU. According to Principle Four agreed in the Helsinki Final Act 1975 (following the Conference on Security and Co-operation in Europe), there is also an obligation on participating states to settle disputes amongst them by peaceful means and in good faith, which can include mediation. However, again, this only applies to participating states. 912 Article 21(2) TEU.

286

One might argue the EU possesses a residual competence or power under

Article 352(1) TFEU, to attain one of the objectives set out in the Treaties, if the Treaties have not provided the necessary powers. The role of mediation in an intra-state conflict could be deemed as necessary for the achievement of one of the objectives in the Treaties, notably peace and security in Article 3(5)

TEU. However, Article 352(4) TFEU makes it clear that this provision cannot serve as a legal basis for attaining objectives pertaining to the Common

Foreign and Security Policy.913 This has also been made clear in the case-law of the ECJ, which has held that a reliance on Article 352 TFEU requires that it must relate to the operation of the common market and be intended to attain one of the objectives of the Union.914 With regards to an objective of the Union, in order to rely on Article 352 TFEU, such an objective cannot include an objective of the Common Foreign and Security Policy.915 Thus, Member

States remain the ‘Masters of the Treaties’.

Provided internal political reasons do not prevent the EU from acting, the Union could become a mediator in any conflict that takes place beyond its borders.

However, the EU has no legal basis upon which to act in the resolution of intra- state conflicts within its borders.916 For example, Article 4 of Protocol No. 10 on Cyprus, of the Act of Accession 2003 (concerning the accession of Cyprus, amongst other states, to the EU) states that: “In the event of a settlement, the

913 Nikos Skoutaris, 'The Paradox of the Europeanisation of Intra-State Conflicts' (2016) 59 German Yearbook of International Law 223. 914 Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat v Council of the European Union [2008] ECR I-6351, at para. 200. 915 Ibid, at para. 201. 916 Nikos Skoutaris, 'The Paradox of the Europeanisation of Intra-State Conflicts' (2016) 59 German Yearbook of International Law 223.

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Council, acting unanimously on the basis of a proposal from the Commission, shall decide on the adaptations to the terms concerning the accession of

Cyprus to the European Union….”. However, when the Member States signed this Treaty, which allows the Council to alter the terms of Cyprus’ original accession to the EU, in order to accommodate any potential future reunification of Cyprus, they did not accord the EU with any active conflict resolution role, apart from stating that the EU shall accommodate the terms of a solution, distinct from a role in resolving the conflict itself.917

Following Catalonia’s unilateral declaration of independence, whilst the

Union’s political institutions declared the referendum to be unlawful and in breach of the rule of law, they regarded it as a matter for resolution at a national level. They tried to encourage dialogue at a national level, as well as peaceful resolution. However, they did not respond to requests to act as a mediator between Catalonia and Spain. In response to Spain’s call for new regional elections in Catalonia, in December 2017, the European Council declared that:

“For the EU nothing changes. Spain remains our only interlocutor...”918 For the Union’s institutions to be a mediator they would need a mandate

(agreement or consent) from the conflict parties to the dispute. Indeed, according to the president of the European Commission: “To be a mediator you need an agreement, and this agreement is not there, so I don't

917 Ibid. 918 President of the European Council (Donald Tusk (27 October 2017). Available at: https://twitter.com/eucopresident/status/923914819631271936 (last accessed: 01 November 2017).

288 want to interfere in the debate without being invited to do so”.919 This statement is in line with Articles 4(1), 4(2) and 5(2) of the TEU, which refers to the Union’s obligation of non-interference in a Member State’s internal sovereign/constitutional affairs and the competence of the EU to act in any given case. Thus, the conflict parties must accept a mediating role for the EU, and if mediation is used mainly for the purpose of implementing EU norms and rules centred around peaceful conflict resolution, or the EU’s mandate, credibility and legitimacy could be called into question.920 Furthermore, even if there is such a mandate, proposals made by a mediator are not legally binding on the parties.921 However, it is conceivable the process could provide that any peace agreement resulting from mediation could be rendered enforceable if both parties agreed to this.

Notwithstanding the limited role of the EU to become directly involved in the resolution of an intra-state conflict, the Union may have an indirect effect on conflict settlement, especially with regard to countries with a pro-European agenda.922 The prospect of EU membership, association or integration act as

‘catalysts’ in bringing about conflict resolution.923 For example, despite the

919 Catalan News, ‘Juncker Insists Dialogue is Needed in Catalonia to Solve Crisis’ (09 May 2018). Available at: http://www.catalannews.com/politics/item/juncker-insists-dialogue-is- needed-in-catalonia-to-solve-crisis (last accessed: 08 November 2011). 920 Anne Isabel Kraus and Lars Kirchhoff, ‘What will the face and soul of EU peace mediation be?’, at 87, in Tanja Tamminen, Strengthening the EU’s peace mediation capacities: Leveraging for peace through new ideas and thinking (Finnish Institute of International Affairs Report 2012). 921 Office of Legal Affairs, Handbook on the Peaceful Settlement of Disputes between States (United Nations, 1992), 44 (para. 138). 922 Gergana Noutcheva, Nathalie Tocci, Bruno Coppieters, Tamara Kovziridze, Michael Emerson and Michel Huysseune, Europeanization and Secessionist Conflicts: Concepts and Theories (2004) Journal on ethnopolitics and minority issues in Europe 1, 8. 923 Gergana Noutcheva, Nathalie Tocci, Bruno Coppieters, Tamara Kovziridze, Michael Emerson and Michel Huysseune, Europeanization and Secessionist Conflicts: Concepts and Theories (2004) Journal on ethnopolitics and minority issues in Europe 1, 11 – 12; James Ker- Lindsay, ‘The European Union as a Catalyst for Conflict Resolution: Lessons from Cyprus on

289

Council granting the Former Yugoslav Republic of Macedonia candidate status in 2005, Greece formally opposed FYR Macedonia’s accession to the EU, for a number of political reasons, including its name. Greece and FYR Macedonia have now agreed, amongst other matters, that FYR Macedonia shall be named the “Republic of North Macedonia”.924 The (former) Republic of Macedonia officially changed its constitutional name to the Republic of North Macedonia in February 2019, following the ratification of the ‘Prespa agreement’925 by the

Greek Parliament on 25 January 2019. This agreement paved the way for the

Republic of North Macedonia’s membership of the EU. Indeed, according to one author:

"One might wonder, however, why a state that has been recognised

as Republic of Macedonia by more than 130 countries agrees to

amend its constitutional name. The main “carrot” for fYRoM can be

found in the second article of the Agreement. According to this,

the Limits of Conditionality’ (April 2007) Working Paper Series No. 1 (Helen Bamber Centre for the Study of Rights and Conflict, Kingston University, April 2007) 1, 5 - 9. Available at: http://eprints.kingston.ac.uk/5596/1/Ker-Lindsay-J-5596.pdf (last accessed: 13 December 2018); Nathalie Tocci, EU Accession Dynamics and Conflict Resolution. Catalysing Peace or Consolidating Partition in Cyprus? (Ashgate Publishing Limited 2004), 10; Nathalie Tocci, ‘Conflict Resolution in the European Neighbourhood: The role of the EU as a Framework and as an Actor’ (Robert Schuman Centre for Advanced Studies, European University Institute) EUI Working Paper Series RSCAS No. 2004/29 1, 12 – 14; Frank Schimmelfennig, Stefan Engert and Heiko Knobel, ‘Costs, Commitment, and Compliance: The Impact of EU Democratic Conditionality on Latvia, Slovakia and Turkey (2003) Journal of Common Market Studies 495, 496 – 498. 924 See Article 1, section 3(a) of the ‘final agreement for the settlement of the differences as described in The United Nations Security Council Resolutions 817 (1993) and 845 (1993), the termination of the Interim Accord of 1995, and the establishment of a strategic partnership between the parties’ (12 June 2018) 1, 2 - 3. Available at: http://www.ekathimerini.com/resources/article-files/aggliko-1.pdf (last accessed: 27 August 2018). 925 Final Agreement for the settlement of the differences as described in the United Nations Security Council Resolutions 817 (1993) and 845 (1993), the termination of the Interim Accord of 1995, and the establishment of a Strategic Partnership between the Parties. Available at: https://www.ekathimerini.com/resources/article-files/aggliko-1.pdf (last accessed: 08 May 2020).

290

Greece will not oppose the accession of the Republic of North

Macedonia to international organisations such as the EU and NATO

if the application is made under the new name.”926

Thus, it has been observed and commented that:

“Europeanisation in the field of secessionist conflict settlement and

resolution should be understood as a process which is activated and

encouraged by [the European Union] … by linking the final outcome

of the conflict to a certain degree of integration of the parties

involved in it into European structures”.927

7.6 A comparison of the different methods for addressing

secession

A treaty provision would be directly applicable and possess general applicability, unlike a CJEU judgment which is only binding on those to whom it is addressed. A soft law provision is also non-binding. Indeed, it is argued soft law instruments do not in fact ensure the uniform application of EU law in

Member States.928 Whilst a CJEU judgment and soft law measures are both

926 Nikos Skoutaris, ‘Blog - Macedonia name issue: Agreement and disagreement‘ (22 January 2019) On Secessions, Constitutions and EU law. Available at: http://www.skoutaris.eu/blog/2019/1/22/macedonia-name-issue-agreement-and-disagreement (last accessed: 08 May 2020). 927 Bruno Coppieters et al. (eds.), Europeanization and Conflict Resolution: Case Studies from the European Periphery (2004), 2. 928 Linda Senden and Martin van den Brink, European Parliament - Checks and balances of soft EU rule-making’ Policy department - Citizens rights and constitutional affairs (2012), 17.

291 capable of producing legal certainty and legal effects (even though they are not, in theory, legally binding), there is a need for EU law to provide a definitive, conclusive and authoritative position that would resolve an ongoing debate of considerable constitutional importance and help provide legal clarity in this area.

A treaty provision would also allow for a greater scope of issues to be addressed, and therefore a greater opportunity for clarity. It would also be proactive and allow for issues to be addressed before they arise or in contemplation of them arising. A CJEU judgment, on the other hand, would be limited to the facts and issues of a particular case. A ruling would be reactive in the sense that a relevant situation would have to come before the

CJEU involving a question of EU law in the context of secession, either by way of a preliminary reference or through the infringement procedure. Owing to the general and abstract nature of a treaty/constitutional text, however, a judgment of the CJEU would, in contrast, allow for greater depth of discussion on the various issues of EU law. However, a similar level of discussion and debate of the legal issues would be expected to take place prior the introduction of a treaty provision.

The process for treaty change/reform would seek to guarantee democratic legitimacy. The Treaties seek to guarantee democratic legitimacy through the requirement, in Article 48 TEU, that any treaty amendment/revision be carried out in accordance with the respective national constitutional requirements of each Member State. Treaty changes must also be approved, unanimously, by

292 all EU Member States. The ratification path in Member States could vary, but this could be through either public referendums or a parliamentary vote.

Unlike the process for treaty change, it could be argued the other methods for addressing secession identified in this thesis lack democratic legitimacy. It is contended decisions of the CJEU lack democratic legitimacy as its judiciary are not directly elected by EU citizens, unlike the European Parliament which is composed of representatives of the EU’s citizens929 and because the law has not been enacted by a democratically elected parliament. Furthermore, soft law provisions bypass the right of legislative initiative by the European

Commission and consultation with the European Parliament, which is a key feature of the ordinary legislative procedure which aims to enhance democratic legitimacy in the EU.930 Unlike the process outlined above for treaty reform, the European Commission, when adopting soft law, does not have a legal duty or obligation to undertake lengthy public consultation and stakeholder and expert participation before publishing its provisions. Moreover, the EU

Treaties do not contain procedural rules as to the adoption of soft law measures which does not make the decision-making process transparent or allow for accountability. However, with respect to treaty reform, adherence to the procedures and constitutional safeguards identified do mean that such a process would take significantly longer and there exists opportunity for

Member States to veto a decision on the basis of national political interests.

This could cause considerable delay. It is somewhat counterintuitive, therefore, that the procedures designed to ensure certainty, legitimacy and

929 Note Articles 10(2) TEU and 14(2) TEU. 930 Notes Articles 14(1) and 16(1) TEU and Articles 289 and 294 TFEU. See: Herwig Hoffmann, ‘Negotiated and Non-negotiated Administrative Rule Making the example of EC Competition Policy’ (2006) 43(1) Common Market Law Review 153, 172.

293 unanimous agreement amongst Member States have the effect of creating uncertainty and the potential for interminable contestation and deadlock.

However, whilst soft law instruments can be adopted relatively quickly, speed of decision-making should not outweigh the need for legal clarity and democratic legitimacy.

Any method which is not legally possible and infringes upon sensitive constitutional principles must be also ruled out. Thus, there is no legal basis in the Treaties for the EU to become involved in or mediate in a secessionist conflict between a region and a parent state. The terms of Articles 4(1), 4(2) and 5(1) TEU, preclude the EU from becoming involved in or from undertaking an active role in relation to an issue that touches upon a Member State’s national sovereignty. Furthermore, it would not be legally possible for the EU to regulate the legality of secession in the Treaties as this would infringe upon the Union’s respect for national constitutional identities in Article 4(2) TEU.

7.7 Interim summary and concluding remarks

In this chapter I critically discussed the different methods for addressing secession in EU law. It is proposed the ideal method or model for addressing secession would be through the introduction of a new and/or amended/revised treaty provision(s). In order to justify whether and why each method/model is a good and tenable idea or not, I evaluated each method against the extent to which it met/satisfied the rule of law criteria and, in particular, the sub-principles

(procedural requirements) of the rule of law: legal certainty and democratic

294 legitimacy. The introduction of a treaty amendment has been identified as best satisfying these criteria. Having suggested a treaty amendment which could solidify the law in this area, it is important to highlight the potential benefit, utility and impact of this research, which I discuss in the final chapter, chapter eight, below.

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CHAPTER EIGHT

8.0 Concluding remarks: a normative vision

Whilst the Union must respect national constitutional identities, and cannot therefore regulate the legality of secession in its Member States, the secession of a region/territory from its metropolitan state would involve an externalisation of its effects onto the EU. The most obvious consequence or legal implication of secession is a loss of EU membership, although there are a number of other issues that could affect the internal functioning of the EU. For example, one such issue could involve representation and voting arrangements for existing states in the EU’s political institutions. The secession of (a) part(s) of an EU

Member State and simultaneous accession to the EU is unprecedented.

However, it is a real and present concern for the Union. This was demonstrated most recently by the situation in Catalonia.

This thesis has analysed and critically discussed the legal position of the EU on secession. The main focus of this thesis has been on consensual secession, although it has in key parts addressed questions of unilateral secession and EU membership This thesis has highlighted a number of areas where clarity is needed. It is proposed the ideal method or model for addressing secession and providing clarity in this area, which would be through the introduction of a new and/or amended/revised treaty provision(s).

In order to justify and defend the method/model proposed, this thesis evaluated a number of different methods against a set of key evaluative criteria

297 or parameters, in order to conclude that one or the other is more doctrinally suitable and effective.

It needs to be accepted that whilst this thesis has proposed the ideal method to address the secession of (a) part(s) of a territory of a Member State, it is possible a number of the different methods or models proposed might be adopted, implemented or agreed by the EU or Member States to clarify the law in this area. This is something that is likely to happen or evolve over time. For example, ‘soft law’ guidance could be provided through interpretative acts or communications on EU law by the European Commission. The Commission could indicate or summarise the way that EU law in a specific area should be interpreted and applied. At a later stage, the adoption of soft law could help to clarify the interpretation of a new and/or amended/revised treaty provision(s).

The CJEU could also be requested to clarify the law in this area regarding the interpretation of a new and/or amended/revised treaty provision(s) arising out of or involving a case of secession.

Moreover, even though it has been argued in this thesis that a treaty amendment would be the ideal method to address secession, such a proposal is not without obvious difficulties and barriers. Notably, a treaty amendment would require unanimity and for all EU Member States to be in agreement which would be very difficult, if not impossible, to achieve and a treaty amendment would take a significant amount of time to negotiate and agree amongst Member States. Practical reality and the difficulty in achieving unanimity amongst Member States might dictate that soft law is the most

298 realistic (although not necessarily the most ideal) method to address secession and EU membership owing to the relative speed and east at which it can be adopted.

The discussion in this thesis and the suggestions for clarifying the law would be useful or beneficial to lobby groups, researchers working for national government institutions and/or policy makers. It will enable key constitutional actors/bodies and stakeholders to consider the best legal or policy option, including its suitability, effectiveness and impact. This thesis has made an original contribution to the academic debate in this area by building on existing literature and going beyond merely concluding or suggesting that further clarity and/or a reform of EU law in this area is desirable. This thesis actually proposes the ideal method/model for addressing the lack of clarity in this area, setting out draft wording, and the reasoning/rationale behind such wording.

Concrete suggestions regarding the wording of the text are a welcome and crucial step forward in the process of establishing a legally binding instrument addressing secession. It would be desirable for the Union to create criteria to form the basis of a rational and progressive foundation for the secession of regions/territories in EU Member States. Whilst a revised draft treaty provision would no doubt generate controversy, the draft wording proposed, including the discussion surrounding it, is sufficiently clear and comprehensive to form the basis of further negotiation and discussion. It presents important changes and much needed improvement in relation to the EU’s position on secession.

Owing to the emergence and heightened profile of a number of active secessionist movements in the EU, seeking either greater autonomy or

299 independence, it is high time the Union addressed secession in the context of

EU law.

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