The EU and Scottish independence after Brexit

Núria González Campañá

LERU Brexit Seminar

LERU Brexit Seminar

 

 

Secession is a live issue in today’s Western Europe. In the last years, we have witnessed the failure of two pro-independence attempts in Scotland and Catalonia. In the near future, we might see their re-emergence or the rise of other pro-secession movements in other European regions.

 © Scottish Parliament

The 2016 Brexit referendum has created the conditions for having simultaneously a withdrawal procedure (i.e. the UK leaving the EU) and the parallel secession of a territory wishing to remain part of the EU (i.e. Scotland’s secession from the UK and subsequent accession to the EU). Some predict that support for independence could surge in the event of no-deal or hard Brexit. If this occurs and Scotland becomes an independent country, which should be the legal position of the EU? What does the European Commission mean when it says that the debate about membership after secession will have to be resolved in accordance with Public International Law? In my view, although this is somewhat speculative, the European Commission is not only pointing at the lack of EU rules in the area, but it is stressing the intergovernmental logic of the issue and the relevant position of EU Member States in addressing the situation. The European Commission was advancing the idea that in the event of secession and recognition of independence and subsequently expressed will of EU membership, negotiations and the national interest of the Member States will be key. Undoubtedly, the position of the EU may well be based mainly on political considerations. EU law can be very pragmatic and history has proven that law is not a hurdle when there is enough political will. However, the EU is a community based on the rule of law and it cannot avoid the legal discipline of certain procedures. It has to justify its position with some normative arguments of principle.

Traditionally, in neighbouring third countries, the EU’s main criteria for recognizing a secessionist entity has been the approval of the nation state from which an entity is seceding. Besides, in the last years (e.g. Montenegro, where the EU was deeply involved) the EU has required respect for the rule of law and for the democratic principle (e.g. imposing certain rules for the celebration of a referendum on independence). Altogether, this means that the EU Members will not recognize an independent sovereign State out of a unilateral and unlawful independence process. In that regard, such new State would be violating Article 2 TEU (e.g. respect for the rule of law) and, therefore, the Copenhagen criteria would not be fulfilled. In short, Scottish independence process, if aspiring to get recognition and acceptance within the EU, will have to comply with British constitutional rules, which, to start with, require a political agreement with Westminster in order to allow for a referendum.

In the event of successful secession from a Member State, the dominant interpretation is that the accession of a seceding territory once it becomes an independent State should occur under Article 49 TEU (lex specialis criterion). Such route requires unanimous agreement among all EU Member States, which means that there is no room for the so called “internal enlargement”. But what about an independent State whose own birth is due precisely to the willingness not to leave the EU, e.g. independent Scotland? Is there any legal reason to argue that the EU should offer a different path, namely revision rather than accession? Wouldn’t it be absurd to expel from the EU a territory whose citizens are signalling a constant desire to remain part of the EU and that, at least partially, start and independence process from the withdrawing EU Member State in order precisely to make sure that they have the chance to keep the former ties with the EU? Needless to say, we are in front of an ex novo situation, where negotiations and political interests will be key. But I do agree with those who believe that a new State cannot avoid being subject to the Article 49 TEU path. One cannot rule out completely ad hoc solutions: the new State application could be fast-tracked, in the sense that accession negotiations can be facilitated or accelerated or conducted in parallel when Scotland is negotiating its independence terms with the rest of the UK, but the candidate cannot avoid the veto power that all current EU Member States have. The EU gives rise to rights and obligations, it offers their members the possibility to share and decide a common destiny, at least in certain areas. It is therefore necessary to give States the possibility to negotiate and decide with whom they want to work and collaborate. That is why this decision, necessarily, requires a unanimous agreement, as stated in Article 49 TEU. And that is why the entrance of a new State, regardless of its origins, should respect the right conferred by the Treaties to the current Member States: the veto or possibility to deny the accession of any new State. Furthermore, the new aspirant State is expected to fulfil the so-called Copenhagen criteria. It cannot be denied that a new independent State out of an already EU Member State will be in an advantageous position in relation with EU law compliance. But presumption of compliance is not enough. The new State will have to pass an exam on its economic viabilility, compliance with the rule of law, protection of minorities or a capable administration, just to mention a few accession criteria.

Finally, one should not forget that other EU Member States could have reasons to slow down the accession process or to add difficulties. Article 49 TEU route also implies a national ratification process that in some countries would also trigger a nation-wide referendum. In some cases, the organization of a referendum is a constitutional requirement, while in some other countries it is a discretionary power of the Government. Given the increased euroscepticism in some EU countries, it cannot be discarded that the ratification process might encounter difficulties precisely among the public opinion, thus resulting in a No vote in the ratification referendum, even if the rejection of the enlargement is not so much directed against the candidate country, but against the EU project as a whole.


Núria González Campañá
Oxford University

Núria González Campañá is a DPhil candidate at Worcester College, University of Oxford. Her research interests focus on exploring how EU law should respond to pro-secession and territorial challenges.

 


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