2014 will be a decisive year for separatist movements in Europe. A referendum about the independence of Scotland is scheduled for September. Catalonia’s government intends the same for November, but has to face strong opposition from Madrid. Belgian federal elections will be held in May giving Flemish separatist sentiments opportunity to express themselves.
The blog series ‘Separatism in Europe’ will feature four posts analysing various ideational, political and economical aspects of separatist movement in Europe.
One of the key debates in the context of the separatist movements in Europe is the EU membership status of newly established entities. The Scottish government, as outlined in the 2013 White Paper on Scotland Independence, indicated that the decision on Scotland’s EU membership could be taken on the basis of the Treaty’s revision as outlined in article 48 TEU. This would allow Scotland to negotiate its EU membership from within the EU allowing Scotland to be a member state with ‘continuity of effect’.
The President of the European Council referred to Article 49 TEU and the official process of accession. This indicates that the solution favoured by Scotland might not be applicable at the European level. Furthermore, President of the European Commission Jose Manuel Barroso in his recent BBC interview stated that an independent Scotland would have to apply for membership and get the approval of all current member states. The latter approach, as expressed in a letter by president Barroso to the Chairman of the House of Lords Economic Affairs Committee is the subject of a legal examination by David Edwards in his analysis featured in the latest Fordham International Law Journal 2013. The author discusses Catalonia, Flanders and Scotland.
The forthcoming legal opinion of the European Parliament was expected to provide some clarification on this matter, however its publication was blocked by President of the European Parliament Martin Schultz in order not to ‘create interferences with the on-going Scottish referendum campaign’.
This issue – besides drawing comments from politicians across Europe – has attracted both academic and think tanks’ attention. Yves Gounin’s article, Politique étrangère 2013/14, presents an interesting analysis of the consequences of secession from the perspective of the EU law. This is further examined in the article The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and Fragmentation versus Widening and Deepening? by Merijn Chamon and Guillaume Van der Loo, European Law Journal 2013, exploring the possibility of EU membership for newly established states. The conclusion excludes automatic Eu membership for new states born from regional entitities within EU member states. Furthermore, the legal analysis of the EU Treaties and ECJ’s jurisprudence seems to preclude such a ‘continued membership’. Thus the key challenge would be to ensure a smooth transition, without the loss of prerogatives under EU law, from being an EU region to an EU Member State proper. The same reasoning is developed in a very recent article by Daniel Kenealy (Edinburgh University) in Journal of European Integration, where the author traces the history of EU official statements on ‘internal enlargement’, contrasts a ‘Europe of States’ with a ‘Europe of Citizens’ narrative and calls for a way to “ensure that EU law continues to apply, the day after independence, to the same territory that it applied to the day before”.
The issue has been further reflcted in the a study by The Institute of International and European Affairs Scotland’s Vote on Independence – The Implications for Ireland emphasizing the impact of independent Scotland on the political relationship between Ireland and the UK, as well as implications for the UK referendum on the EU membership.
Finally, a recent legal analysis by Manuel Medina Ortega argues that, in the absence of specific European legislation, the issue of secession within the EU is subject to existing norms of the international law and specific constitutional provisions of individual Member States. The author draws on the historical precedents of decolonization, the disintegration of the Soviet bloc and the division of Yugoslavia to determine if their legal contexts might provide clarifications for the current developments.