{"id":35098,"date":"2021-02-15T15:23:44","date_gmt":"2021-02-15T15:23:44","guid":{"rendered":"https:\/\/revistaidees.cat\/?p=35098"},"modified":"2021-02-26T14:24:11","modified_gmt":"2021-02-26T14:24:11","slug":"problematising-the-role-of-the-eu-in-territorial-sovereignty-conflicts","status":"publish","type":"post","link":"https:\/\/revistaidees.cat\/en\/problematising-the-role-of-the-eu-in-territorial-sovereignty-conflicts\/","title":{"rendered":"Problematising the Role of the EU in Territorial Sovereignty Conflicts"},"content":{"rendered":"\n

The EU\u2019s historical success as a peacemaker between France and Germany has inspired many to wonder whether the EU may also bring peace to other conflicts. It is true that historically speaking at least, the EU area itself has proved remarkably free of conflict. Having said that, the Union has not managed to play a significant role as an actor in the settlement of territorial sovereignty disputes that have taken place inside its borders, such as the ones in Northern Ireland, the Basque country or even Cyprus [1]<\/a>1 \u2014 Hill, C., \u201cThe EU\u2019s Capacity for Conflict Prevention\u201d (2001) 6 European Foreign Affairs Review, p. 315, 326.\n<\/span><\/span>. Taking the cue from this somewhat paradoxical situation, the paper problematises the role of the European Union in territorial sovereignty conflicts. It argues that it is the limited legal toolbox that does not allow the EU to undertake a more active role in conflict resolution within its borders and has made her appear as a rather reluctant peacemaker. The paper develops its argument in three steps. In the following section, the paper provides for three reasons why the EU should consider assuming a more active role in territorial sovereignty conflicts. Section III points to the inherent characteristics of the Union constitutional structure that constrain the EU from assuming such role within its borders. The paper concludes with some thoughts about how the EU could assume a more constructive role and how the Code of Good Practice could contribute to that.<\/p>\n\n\n\n

Why should the EU intervene?<\/h5>\n\n\n\n

The minimum (if any) involvement of the EU in disputes such as the ones in the Basque Country and Northern Ireland together with its failure to \u2018catalyse\u2019 a solution in the Cyprus issue, demonstrate that the toolbox of the Union is rather limited when dealing with conflicts within its borders and that the EU membership itself is far from a panacea<\/em> as we will see in the next section. Having said that, there are at least three reasons why the EU should at least consider assuming a more active role in the resolution of territorial sovereignty disputes.<\/p>\n\n\n\n

Firstly, from a normative point of view, such role would very much be in conformity with its raison d’\u00eatre<\/em> as a peace plan. Rather than actively fighting to eradicate nationalism, the EU \u2013since its inception\u2013 has provided for a pragmatic legal, political and economic framework where competing nationalisms co-exist and even cooperate. It has designed political and legal institutions in which the competing nationalisms can continue to be negotiated [2]<\/a>2 \u2014 See Bell, C., On the Law of Peace, Peace Agreements and the Lex Pacificatoria, (Oxford, Oxford University Press, 2008), p. 200.\n<\/span><\/span>. It is precisely the historical success of this pragmatic framework that transformed foes of the past such as France and Germany to reliable partners of today. Such success has inspired many to wonder whether the EU may also catalyse the settlement of other conflicts both within its territory and in its immediate neighbourhood [3]<\/a>3 \u2014 See generally Ak\u00e7ali, E., \u201cThe European Union\u2019s Competency in Conflict Resolution: The Cases of Bosnia, Macedonia and Cyprus\u201d in Diez, T. i Tocci, N. (eds.), Cyprus: A Conflict in the Crossroads (Manchester, Manchester University Press, 2009), p. 180; F\u00e9ron, E. & G\u00fcven Lisaliner, F. \u201cThe Cyprus Conflict in a Comparative Perspective: Assessing the Impact of European Integration\u201d in Diez, T. & Tocci, N. (eds.), Cyprus: A Conflict in the Crossroads (Manchester, Manchester University Press, 2009), p. 198.\n<\/span><\/span>. A more active engagement in territorial sovereignty disputes that pose a threat to the peaceful and democratic politics in the European continent would be very much in tune with EU\u2019s existential scope to promote peace between its members.<\/p>\n\n\n\n

Secondly, within the European constitutional landscape, one has to take into account the multilevel aspect of the right of self-determination. This right and in particular its external and most controversial dimension ie. secession consists simultaneously of the \u2018ultimate challenge to state sovereignty [and] the reinforcement of [its] virtues’ [4]<\/a>4 \u2014 Mancini, S., \u201cSecession and Self-Determination\u201d, in Rosenfeld, M. & Saj\u00f3, A. (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford University Press, 2012), p. 481.\n<\/span><\/span> by envisaging \u2018the voluntary withdrawal of a political territory from a larger one in which it was previously incorporated’ [5]<\/a>5 \u2014 Baub\u00f6ck, R., \u201cA Multilevel Theory of Democratic Secession\u201d, (2019) 35 Ethnopolitics 227, p. 227.\n<\/span><\/span>. Within the EU, however, secession can be also seen \u2018as a move to change the status or affiliation of a territory within a wider constellation of polities\u2019 [6]<\/a>6 \u2014 Ib\u00eddem, p. 229.\n<\/span><\/span>. The Catalan independentists, for instance, have claimed that they want to create a \u2018nou Estat d\u2019 Europa\u2019. Meanwhile, the Scottish National Party has long campaigned on the slogan \u2018independence in Europe\u2019. In fact, their post-Brexit strategy has been intrinsically linked with a second independence referendum that would subsequently lead to their re-accession to the EU. In both cases, the independendists do not favour a Robinsonian existence of the respective new States. Instead, they prioritise their \u2018upgrade\u2019 from mere subnational authorities [7]<\/a>7 \u2014 See Finck, M., Subnational Authorities in EU Law (Oxford, Oxford University Press, 2017).\n<\/span><\/span> to fully functional Member States within the EU legal order. Such ambition by itself raises a number of questions for the Union: Is there a pathway to membership for independent States coming out of such a process? What kind of conditions for accession are imposed on them? What are the responsibilities of the rump State? A more active role in such conflicts would allow the Union to effectively address those questions and become a stabilising factor within the unstable environment of those constitutional crises.<\/p>\n\n\n\n

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A more active role of the EU in territorial sovereignty disputes that take place within the territory of Member States would bring greater consistency and would reduce the discrepancy between EU’s external and internal actions<\/p><\/blockquote>\n<\/div>\n\n\n\n

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Finally, the EU has declared conflict resolution as one of its key foreign priorities in its southern and eastern neighbourhoods, presenting it as an \u201cessential aspect of the EU\u2019s external action\u201d [8]<\/a>8 \u2014 See for instance European Commission, European Neighbourhood Policy Strategy Paper, COM (2004) 373 final, 12 May 2004, 3.\n<\/span><\/span>. In \u2018Global Strategy for the European Union\u2019s Foreign and Security Policy\u2019 it is underlined that \u201c[t]he EU will engage in a practical and principled way in peacebuilding, concentrating our efforts in surrounding regions to the east and south, while considering engagement further afield on a case by case basis\u201d [9]<\/a>9 \u2014 High Representative of the Union for Foreign Affairs and Security Policy, Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the European Union\u2019s Foreign and Security Policy, June 2016, 28. Available online.\n<\/span><\/span>. We do not find similar aims with regard to disputes that take place within its borders. This creates a discrepancy between its external and its internal actions. A more active role of the EU in territorial sovereignty disputes that take place within the territory of Member States would bring greater consistency between the EU actions both within and outwith its own borders.<\/p>\n<\/div>\n<\/div>\n\n\n\n

Problematising the role of the EU<\/h5>\n\n\n\n

The previous section referred to three reasons why the EU should engage in a more active fashion in territorial sovereignty disputes. From a normative point of view, an apathetic role sits uncomfortably with the ethos of the EU as a peace plan. At the same time, from the standpoint of the EU as a constitutional order of States, it is important to effectively address the ambitions of those political entities that aim at becoming fully functional Member States. Finally, greater consistency is needed between the EU policies towards conflicts that take place within its boundaries and in the rest of the world. <\/p>\n\n\n\n

Having said that, we should problematise the role of the EU. The fact that a more active role in the resolution of territorial sovereignty disputes is in conformity with the aforementioned principles, does not mean that its current legal toolbox provides for the necessary space for the EU to assume such role. There are intrinsic characteristics of the Union constitutional structure that constrain the EU from becoming more active in intrastate conflicts within its borders. The Member States as \u2018Masters of the Treaties\u2019 refrain from allowing the EU to become active in an area that touches on the very core of their sovereignty. This becomes particularly evident if one examines closely whether the EU has a legal basis to act as an honest broker in such conflicts. Finally, the asymmetrical nature of the relationship that the EU enjoys with its Member States and their regions, poses a question as to whether it is even politically prudent for the EU to assume such role.<\/p>\n\n\n\n

Member States as \u2018Masters of the Treaties\u2019<\/h5>\n\n\n\n

Dashwood once famously proclaimed that the EU is a \u201cconstitutional order of States.\u201d11 This means inter alia<\/em> that the Member States as Herren der Vertr\u00e4ge<\/em> have to unanimously agree on the text of the EU Treaties in order to design the constitutional framework of the Union. They are the authors of the constitutional charter of the Union [11]<\/a>11 \u2014 Case C-294\/83, The Greens (Les Verts) v. The Parliament ECLI:EU:C:1986:166.\n<\/span><\/span>. Taking that into account, it is hardly surprising that the Member States do not want to impute any particular role to the EU with regard to issues that touch upon their national sovereignty, such as intrastate conflicts. Those conflicts often question the sovereignty of a metropolitan State over a given territory and thus the very essence of statehood.<\/p>\n\n\n\n

A mere look to the text of the EU Treaties verifies our conclusion. Apart from generic references to \u2018the Union\u2019s aim [\u2026] to promote peace [12]<\/a>12 \u2014 Art. 3 (1) TUE.\n<\/span><\/span> that are often referring to its relations with the wider world [13]<\/a>13 \u2014 Arts. 3 (5), 8 (1), 21 (2) (c) TUE.\n<\/span><\/span>, there is no explicit reference to the role of the EU in intrastate conflicts that take place within its territory. This is hardly unexpected given the painful compromises that Treaty amendments have always entailed and how difficult it has been to reach those compromises in each and every intergovernmental conference. So, reaching a consensus on how the EU could deal with intrastate territorial disputes, would have always been a sisyphean task for the 27 Member States that have not even adopted a common position with regard to the recognition of Kosovo.<\/p>\n\n\n\n

This is not to suggest that the EU should not or would not admit independent States that have been created out of consensual and democratic secession as members, as some authors have suggested [14]<\/a>14 \u2014 JHH Weiler, \u201cSlouching towards the Cool War; Catalonian Independence and the European Union; Roll of Honour; In this Issue; A Personal Statement\u201d, (2012) 23 European Journal of International Law, p. 909.\n<\/span><\/span>. The Union has already accommodated within its legal order the results of secessions that have taken place through consensual processes. This is evident from the fact that a number of Member States such as the Czech Republic and Slovakia have become independent through such processes and this was not considered to be a hurdle to their accession<\/p>\n\n\n\n

Even on the heated debate of the continuing membership of a region that has consensually seceded from a Member State as it was rehearsed mainly before the 2014 Scottish referendum the main question had to do not with whether Scotland could become an EU Member State but rather what was the appropriate process. Still, it is important to highlight the constructive ambiguity about the right of continuous EU membership of a seceding region of a Member State. Such ambiguity points to the fact that the Member States and the institutions do not share \u2013at a minimum– a common view on the issue making it difficult for the EU to become more active in such situation.<\/p>\n\n\n\n

In the 2014 debate about Scotland\u2019s right to remain in the EU, the interested parties interpreted the Treaties in opposing ways. On the one hand, the official position of the Commission at the moment was that:<\/p>\n\n\n\n