How should the European Union (EU) respond to a secession process from a member state when the new state expresses its wish to obtain member status in the EU?<\/p>\n\n\n\n
The answer depends on the possibility of the EU changing the attitude it has adopted regarding secession from a member state, which was simultaneously revealed by its \u201cnon-immediate entry\u201d attitude toward Scotland and not-so-veiled opposition toward Catalonia, and which conditions should be fulfilled for a secessionist state to be considered a new member state of the EU. <\/p>\n\n\n\n
Regarding the recent European secessionist movement, Scotland and Catalonia presented themselves as pro<\/em>-European, and they requested independence and immediate entry into the EU as new member states. Nonetheless, both movements have been perceived by EU institutions as a danger to the European Project. The issues at stake are twofold:<\/p>\n\n\n\n A seceding region is not in the same position as a third country; therefore, it should not be necessary to meet the conditions of acess to the EU. EU law is already applied in those ‘seceding states’<\/p><\/blockquote>\n<\/div>\n\n\n\n The possibility of the entry of new member states born inside the EU from secessionist processes without the duty for these new states to comply with the conditions set out by Article 49 of the Treaty on European Union should be taken seriously by EU institutions because a seceding region is not in the same position as that of a third country. For example, EU law is already applied in those \u201cseceding states\u201d; EU citizenship is automatically acquired through member states\u2019 nationality and there is a pro-European desire to remain inside a supranational political organization [4]<\/a>4 \u2014 Margiotta, C. (2017). \u201cPerch\u00e8 la secessione fa paura? Un aggiornamento su \u2018l\u2019ultimo diritto\u2019\u201d, 3 Governare la paura 37.\n<\/span><\/span>. It would be important for EU institutions to consider the previously stated issues to suggest what conditions should be met to accept a new state born from a process of secession as a new member of the EU.<\/p>\n<\/div>\n<\/div>\n\n\n\n To accept an easier internal enlargement than enlargement to third states, the following should be acknowledged:<\/p>\n\n\n\n EU law already applies in the regions that are seceding, which implies that it is not necessary for a new state to fulfill the accession criteria. The EU\u2019s \u201cacquis\u201d\u2014the body of common rights and obligations that are binding on all EU countries\u2014is already accepted in the seceding region. Internal enlargement would ensure that, the day after independence, EU law continues to apply to the same territory that it applied to the day before [5]<\/a>5 \u2014 Fasone, C. (2017). \u201cSecession and the Ambiguous Place of Regions under EU Law\u201d. Closa, C. (ed.), Secession from a member state and withdrawal from the European Union: troubled membership. Cambridge: Cambridge University Press.\n<\/span><\/span>.<\/p>\n\n\n\n Moreover, respect and commitment to the values set out in Article 2 of the Treaty on European Union (TEU) would be demonstrated by the democratic process being followed to become an independent state. The respect for human dignity, freedom, democracy, equality, and the rule of law during the process toward independence should be one of the sine qua non<\/em> conditions for the recognition of independence. Respect for human rights, including the rights of persons belonging to minorities [6]<\/a>6 \u2014 El respecte a les minories t\u00e9 dues cares, segons el tipus de minoria: pel que fa a les minories pol\u00edtiques, el problema \u00e9s la relaci\u00f3 entre la secessi\u00f3 i el principi de la majoria i com garantir la voluntat de les minories pol\u00edtiques (dos refer\u00e8ndums en un moment determinat?); si es tracta de minories territorials concentrades, la soluci\u00f3 passa a ser garantir, en el sistema constitucional del nou Estat, el mateix dret de secessi\u00f3 que exercia l\u2019antiga minoria (cf. Margiotta (2005). L\u2019ultimo diritto. Teoria e storia della secessione. Bolonya: Il Mulino). Des d\u2019un punt de vista purament democr\u00e0tic, si s\u2019accepta la secessi\u00f3 d\u2019un grup territorial d\u2019un estat, tamb\u00e9 s\u2019ha d\u2019acceptar la secessi\u00f3 d\u2019un altre grup territorial dins l\u2019estat en secessi\u00f3, etc., acceptant la naturalesa recursiva de la secessi\u00f3.\n<\/span><\/span>, and respect for a pluralistic society and non-discrimination, tolerance, justice, solidarity, and equality between women and men should be included as fundamental principles in the new constitution of the state. <\/p>\n\n\n\n Moreover, it should be acknowledged that EU citizenship should be taken seriously, especially for those citizens of the seceding state who are residing in other EU countries. The denial of internal enlargement for EU citizens residing abroad would mean the immediate loss of rights connected to it that ensure non-discrimination in terms of access to rights (social but also political and civil) on the basis of nationality and the inability of sedentary ex-EU citizens to keep their European status. EU continuity should be guaranteed because the consequence for EU citizens living in the EU and not in the seceding state would be the immediate and irrevocable loss of rights connected to that status.<\/p>\n\n\n\n Internal enlargement would protect the region\u2019s citizens in terms of continuity of EU citizenship [7]<\/a>7 \u2014 Fasone C. (2017). \u201cSecession and the Ambiguous Place of Regions under EU Law\u201d. Closa C. (ed.), Secession from a member state and withdrawal from the European Union: troubled membership. Cambridge: Cambridge University Press.\n<\/span><\/span>. The existence of EU citizenship puts the seceding region in a different position from that of a third country, where no EU citizenship is acknowledged. For this reason, internal enlargement should be recognized to promote a \u201cEurope of Citizens\u201d narrative instead of a \u201cEurope of States\u201d narrative.<\/p>\n\n\n\n Finally, European institutions must consider the pro-European desire to remain inside a supranational political organization because the process of federalization could be reinforced by the entrance of new states whose European afflatus is much more significant than that of many existing EU member states. The greatest criticism of the EU from many quarters is that it has interrupted the process of federalization in many of the areas where it began; therefore, the emergence of new pro-European states could resume the interrupted process. Secessions from member states could be a means to propose new federalization of the EU. The question is whether the secession of a pro-European group would strengthen the Union.<\/p>\n\n\n\n Given that a secession from the Union (such as Brexit) has signified an interruption in the European integration process, it would be interesting to know if a secession \u201cin\u201d the Union (such as the Catalan one from Spain or the Scottish one from the UK) would generate a new wave of federalization of Europe. These secessionist processes could be good candidates for \u201cconstituting\u201d Europe as a federation. In my opinion, \u201csecessions in\u201d could be the proxy for a new process of federalization. Europe could be subject to a new federalizing dynamic thanks to a proliferation of states due to internal enlargement.<\/p>\n\n\n\n Secessionist processes could be good candidates for constituting Europe as a federation. The EU could be subject to a new federalizing dynamic thanks to internal enlargement<\/p><\/blockquote>\n<\/div>\n\n\n\n The secessionist phenomenon in processes of supranational integration can represent an important factor for the softening of territorial conflicts [8]<\/a>8 \u2014 Cf. Ferraiuolo, G (2020). \u201cLe vicende della Catalogna al cospetto dei paradigmi analitici della secessione\u201d. Fabio Marcelli, Il problema catalano tra diritto a decidere ed autodeterminazione. N\u00e0pols: Scientifica, p. 111 i seg.\n<\/span><\/span>. Notably, we are seeing scenarios that already have paths of decomposition and rearticulation of state sovereignty, which register a deep attenuation of absoluteness [9]<\/a>9 \u2014 \u00cdb., p. 117.\n<\/span><\/span>. In particular, regarding the EU, one could even go so far as to reconfigure a demand for secession from external (to the member state) to internal (to the EU), relativizing its disruptive scope10. By contrast, the refusal to initiate a political debate on secessionist issues in European institutional bodies\u2014an attitude that has prevailed until now\u2014could only result in the reaffirmation of the state-centric vision far from the perspective of a deeper political integration of the EU.<\/p>\n<\/div>\n<\/div>\n\n\n\n The democratic framework seems to be the most attractive for the recent European secessionist movements; therefore, it would be important to indicate the minimum requirements that an aspiring seceding territory should have to apply for EU accession afterward.<\/p>\n\n\n\n Importantly, the lawfulness of the secession can permit a smooth transition from secession to a new member state [11]<\/a>11 \u2014 Fasone, C. Op. cit., p. 65.\n<\/span><\/span>. Not all secessions are lawful, as highlighted by the Canadian Supreme Court\u2019s landmark decision on the secession of Qu\u00e9bec. However, if a set of common principles can be identified for a secession to be lawful, then a seceding territory could be accepted as an EU member state.<\/p>\n\n\n\n The EU\u2019s response to internal enlargement should depend on how the secession is achieved and how to define that achievement legally. The legal and political consequences of a declaration of independence depend on the way in which the new state was born. Certainly, recent practice seems to show that respect for the democratic principle is necessary yet not sufficient to absorb the secessionist process.<\/p>\n\n\n\n At present, the TEU recognizes the right of member states to secede from the Union, but there are no specific rules on secession. Separation is still subject to the existing rules of international law and the constitutional arrangements of member states. Thus, it is still necessary to consider these legal orders to develop talk of secession in terms of legality. Even if there are differences among EU member states, there should be principles shared among most EU countries that permit the definition of what a lawful secession process would look like in the EU according to the common constitutional traditions of its member states and international law. The procedure cannot be unilateral on the part of the seceding territory without the involvement of the central government, and the procedure itself (whether it leads to a formal constitutional amendment or not) must be agreed upon among the parties, regardless of its outcomes. Additionally, it must follow democratic principles through the involvement of the people via a national or regional referendum (or both) with the rule of law.<\/p>\n\n\n\n Exploring the question of the legality or illegality of secession is necessary to avoid simply admitting that law cannot address secessionist crises [12]<\/a>12 \u2014 En aquest sentit, hem d\u2019admetre que la llei, acceptant els fets socials, els segueix per\u00f2 no els avan\u00e7a.\n<\/span><\/span> and that it is instead determined by power politics [13]<\/a>13 \u2014 Qvortrup, M. \u201cReferendums on Independence, 1860\u20132011\u201d, 1 The Political Quarterly 57; Qvortrup, M. (2013). \u201cThe \u2018Neverendum\u2019?: A History of Referendums and Independence\u201d, 2 Political Insight 4, i Qvortrup, M. \u201cIndependence referendums. History, legal status and voting behaviour\u201d. Closa, C.; Margiotta, C., i Martinico G. (eds.) (2019). Between Democracy and Law: The Amorality of Secession, Londres: Routledge. Una de les raons per les quals el reenviament del Canad\u00e0 sobre el Quebec s\u2019ha de considerar un missatge d\u2019esperan\u00e7a important \u00e9s perqu\u00e8 reconeix el paper fonamental de la llei en casos de secessi\u00f3: Giuseppe Martinico a Closa, C.; Margiotta, C., i Martinico G. (eds.) (2019). Between Democracy and Law: The Amorality of Secession, Londres: Routledge.\n<\/span><\/span>.<\/p>\n\n\n\n Therefore, it is necessary to ask whether the issue of legality when referring to secession can be discussed in terms of liminal legality<\/em>, residing on the border between internal and international legal order, and if this legality, while waiting for EU law to govern internal secession, is sufficient to legitimize EU internal enlargement.<\/p>\n\n\n\n At present, the problematic dimension of legality in the secessionist process is still found between constitutional and international law. According to the Canadian Supreme Court, \u201cA failure of the duty to undertake negotiations and pursue them according to constitutional principles may undermine that government\u2019s claim to legitimacy, which is generally a precondition for recognition by the international community\u201d [14]<\/a>14 \u2014 Tribunal Suprem del Canad\u00e0, Reenviament relatiu a la secessi\u00f3 del Quebec [1998] 2 SCR 217, par. 103.\n<\/span><\/span>. In the opinion of the Court, after a referendum of independence is successful, the secessionist movement cannot declare unilateral secession; however, a state cannot \u201cremain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada,\u201d and \u201cthe rights of other provinces and the federal government cannot deny the right of the government of Qu\u00e9bec to pursue secession, should a clear majority of the people of Qu\u00e9bec choose that goal, so long as in doing so, Qu\u00e9bec respects the rights of others\u201d [15]<\/a>15 \u2014 Tribunal Suprem del Canad\u00e0, Reenviament relatiu a la secessi\u00f3 del Quebec [1998] 2 SCR 217, par. 87.\n<\/span><\/span>.<\/p>\n\n\n\n Following this well-known opinion reference of the Supreme Court of Canada [16]<\/a>16 \u2014 Vegeu Delledonne, G. i Martinico, G. (eds.) (2019). The Canadian contribution to a Comparative Constitutional Law of Secession: Legacies of the Quebec Secession Reference. Basingstoke: Palgrave, p. 249-263.\n<\/span><\/span>, it is now necessary to admit that the expression of popular will through a referendum (free and open to all) in favor of secession cannot leave the central state indifferent. Rather, after a vote in favor of secession by part of the state, the central state is obliged to enter into negotiations with the group that intends to separate, and these negotiations do not necessarily have to result in secession. The Court, while not recognizing an obligation for the state to accept a unilateral declaration of independence, does not deny that a state should allow separation in cases where a clear majority in a given region supports that request. Based on the reference of the Canadian Court, we can deduce that, when there is an obligation for the central state to diligently search for a political solution to the crisis, the secessionist group must not declare independence before the end of negotiations.<\/p>\n\n\n\n The European Union could suggest a common proceduralization of secessionist processes in order to peacefully address the sovereignty conflicts inside EU, to make these processes legal and to avoid the escalation of conflicts. Any alternative to conflict is procedure<\/p><\/blockquote>\n<\/div>\n\n\n\n My view differs on the Canadian reference because I maintain that if and only if<\/em> the process through which the separatist movement arrived at a referendum was legitimate and agreed to by all parties [17]<\/a>17 \u2014 Bengoetxea, J., op. cit.: \u201cLes condicions que regulen el proc\u00e9s d\u2019autodeterminaci\u00f3 o el dret a decidir han de ser acordades pels actors implicats rellevants perqu\u00e8 el proc\u00e9s tingui conseq\u00fc\u00e8ncies rellevants\u201d.\n<\/span><\/span> then what I call liminal legality<\/em> [18]<\/a>18 \u2014 Margiotta, C. \u201cAn update on secession as the \u2018ultimate right\u2019. For a liminal legality\u201d. A: Closa, C.; Margiotta, C., i Martinico G. (eds.) (2019). Between Democracy and Law: The Amorality of Secession, Londres: Routledge.\n<\/span><\/span> would allow something different from what was recommended by the Canadian Court. It would allow for the inevitability of secession following a referendum in favor of independence, no matter how the negotiations are going or have gone, and the possibility for the secessionist group, after a vote with a clear majority in favor of secession, to declare independence immediately, even before the end of negotiations, and provide the possibility for the new state to enter the EU as a member state before being recognized by the parent state.<\/p>\n\n\n\n The test of liminal legality<\/em> between an internal legal system and the international order could occur when the process through which secession is or was pursued is legitimate and respects the democratic principle. The Scottish case is an excellent example of the secession process through the accomplishment of a consensual referendum [19]<\/a>19 \u2014 El dret a vot a les eleccions, per exemple, no inclo\u00efa els ciutadans escocesos a l\u2019estranger ni residents a la resta del Regne Unit. Per a molts, l\u2019exclusi\u00f3 d\u2019aquests votants no estava justificada i infringia els principis democr\u00e0tics. Ben al contrari, els joves de 16 i 17 anys van poder votar. Palermo, 2019, a 274 argumenta que: \u201cEl resultat dels refer\u00e8ndums sobre la independ\u00e8ncia d\u2019Esc\u00f2cia el 2014 i sobre el Brexit el 2016 es va determinar en gran mesura per la definici\u00f3 dels ciutadans que podien votar\u201d.\n<\/span><\/span>. In my opinion, the legality<\/em> of the Scottish secession would have certainly allowed Scotland\u2019s entry into the EU as a new member state in the case of successful Scottish independence.<\/p>\n<\/div>\n<\/div>\n\n\n\n The remaining problem is the question of which democratic rules are useful for the European system to prove the internal<\/em> lawfulness of secession [20]<\/a>20 \u2014 Sobre aquest tema, vegeu l’article de F. Palermo en aquest monogr\u00e0fic.\n<\/span><\/span>. It would be necessary to understand if and how it is possible to democratically determine the external borders of a new state and which instruments would be appropriate for that to oblige the central state to tolerate a possible secession. Herein lie the problems of the (difficult) relationship between secession and democracy [21]<\/a>21 \u2014 Margiotta, C. (2019), \u201cSecessione-democrazia. Un nesso in discussion\u201d. A: Secessioni. Politica, storia, diritto, a cura de Margiotta, C. i Zaccaria, G. P\u00e0dua: Padova University Press.\n<\/span><\/span> and the value of the majority rule and the referendum in the secessionist process [22]<\/a>22 \u2014 Beaulac, S. i B\u00e9rard, F. (2017). The Law of Independence: Quebec, Montenegro, Kosovo, Scotland, Catalonia. Nova York: Lexisnexis; Ziegler, R; Shaw, J. i Baub\u00f6ck, R. (eds.) (2014). Independence referendums: who should vote and who should be offered citizenship? Document de treball RSCAS 2014\/90, disponible en l\u00ednia.\n<\/span><\/span>. When referring to the definition of new external borders, can majority rule and a referendum be considered respectful of the accepted democratic principles? [23]<\/a>23 \u2014 La democr\u00e0cia \u00e9s m\u00e9s que simplement la regla de la majoria, tal com especifica el Tribunal Suprem del Canad\u00e0: Tribunal Suprem del Canad\u00e0: Reenviament relatiu a la secessi\u00f3 del Quebec [1998] 2 SCR 217.\n<\/span><\/span> The majority is known as an artificial rather than a neutral concept [24]<\/a>24 \u2014 Martinico, G. \u201cConstitutionalists\u2019 guide to the populist challenge. Lessons from Canada\u201d. Closa, C.; Margiotta, C., i Martinico G. (eds.) (2019). Between Democracy and Law: The Amorality of Secession, Londres: Routledge.\n<\/span><\/span>, that can be constructed through political and legal decisions by including or excluding people or groups from the right to vote.<\/p>\n\n\n\n Particularly in the EU, secession should be pursued in compliance with the fundamental values of the EU, such as democracy, the rule of law (Article 2 TEU), and compliance with Article 2 TEU. Additionally, the common constitutional traditions of a seceding territory cannot be assessed by only considering the democratic functioning of the institutions within it and their respect for the rule of law [25]<\/a>25 \u2014 Fasone, C. Op. cit., p. 62.\n<\/span><\/span>. To accede to the EU, the entire process leading to secession on the part of the seceding territory must be accomplished according to the principles enshrined in Article 2 TEU and derived from Article 6(3) TEU [26]<\/a>26 \u2014 \u00cdb. i Closa, C. \u201cSecession from a Member State and EU Membership: the View from the Union\u201d, European Constitutional Law Review, 12 (2016), p. 240\u2013264.\n<\/span><\/span>.<\/p>\n\n\n\n A good starting point would certainly be the EU becoming an actor of a process of proceduralization, promoting good procedural practices for secessionist crisis. In promoting the rule of law, the EU could suggest a common proceduralization of secessionist processes in order to peacefully address the sovereignty conflicts inside EU, to make these processes legal and to avoid the escalation of conflicts. Any alternative to conflict is procedure. Subjecting secession to a legal regulation could avoid a prevalence of the force of the normative power of the factual. The capacity to neutralise secessionist crisis and its potentially destabilising elements \u2013keeping alive the systemic structure of the legal order\u2013 should be demonstrated, since law somehow always needs to follow the facts, and that facts are the intra-European demands of secession.<\/p>\n","protected":false},"excerpt":{"rendered":" How should the European Union (EU) respond to a secession process from a member state when the new state expresses its wish to obtain member status in the EU? The answer depends on the possibility of the EU changing the attitude it has adopted regarding secession from a member state, which was simultaneously revealed by its \u201cnon-immediate entry\u201d attitude toward Scotland and not-so-veiled opposition toward Catalonia, and which conditions should be fulfilled for a secessionist state to be considered a new member state of the EU. Recent European secessionist movements Regarding the recent European secessionist movement, Scotland and Catalonia presented themselves\u2026<\/p>\n","protected":false},"author":3,"featured_media":34630,"parent":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"inline_featured_image":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[324],"tags":[],"segment":[],"subject":[],"class_list":["post-35221","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-conflictes-de-sobirania-el-debat-a-europa-en"],"acf":[],"yoast_head":"\n
<\/li>
Any European country may apply for EU membership if it respects the democratic values of the EU and is committed to promoting them. Given that the democratic framework seems to be attractive to recent European secessionist movements, particularly against the anti-liberal stigma that was often attributed to separatist movements [1]<\/a>1 \u2014 Actualment, les principals teories tendeixen a valorar la connexi\u00f3 entre la democr\u00e0cia i la secessi\u00f3 en lloc de la relaci\u00f3 entre la secessi\u00f3 i el nacionalisme, per\u00f2 les teories democr\u00e0tiques de la secessi\u00f3 s\u00f3n m\u00e9s adequades per entendre el moment actual del fenomen secessionista. L\u2019atractiu democr\u00e0tic d\u2019aquest \u201cnou tipus de secessionisme\u201d \u00e9s estrat\u00e8gic, perqu\u00e8 les conseq\u00fc\u00e8ncies de declarar la independ\u00e8ncia, incl\u00f2s el reconeixement per part de la comunitat internacional, depenen de la manera en qu\u00e8 va n\u00e9ixer el nou estat. El respecte a la regla de la majoria, en \u00faltima inst\u00e0ncia, no afecta el resultat final de l\u2019intent secessionista, per\u00f2 s\u00ed que garanteix que la situaci\u00f3 f\u00e0ctica, si aconsegueix reunir els requisits per obtenir la independ\u00e8ncia, no trobar\u00e0 obstacles en l\u2019\u00e0mbit internacional pel que fa a l\u2019aplicaci\u00f3 de totes les prerrogatives i deures del nou estat sobir\u00e0 als seus ciutadans.\n<\/span><\/span> and considering that the purpose of recent secessionism movements is to correct the form of the existing state through democratic means [2]<\/a>2 \u2014 Bengoetxea, J. (2019). \u201cSecession v forceful union. A provisional enquiry into the right to decide to secede and the obligation to belong\u201d. Closa C., Margiotta C. i Martinico G. (eds.). Between Democracy and Law: The Amorality of Secession. Londres: Routledge: \u201cQuan es tracta d\u2019un debat filos\u00f2fic normatiu i pr\u00e0ctic, la reivindicaci\u00f3 del dret a la sobirania i la voluntat democr\u00e0tica del poble \u00e9s l\u2019argument m\u00e9s recurrent per a la secessi\u00f3\u201d. La justificaci\u00f3 m\u00e9s important per a la secessi\u00f3 es basa en el principi democr\u00e0tic, especialment quan es basa en un consens general.\n<\/span><\/span>, it would be important for European institutions to consider internal enlargement [3]<\/a>3 \u2014 Walker, N. (2017). \u201cInternal Enlargement in the European Union: Beyond Legalism and Political Expediency\u201d. Closa, C. (ed.). Secession from a Member State and Withdrawal from the European Union: Troubled Membership. Cambridge: Cambridge University Press, p. 32-47.\n<\/span><\/span>.<\/p>\n\n\n\nInternal enlargement conditions<\/h5>\n\n\n\n
Democratic framework<\/h5>\n\n\n\n
Internal lawfulness of secession<\/h5>\n\n\n\n