The strive for independence of regions within the EU

See Dutch version below.

See also our video interview with Prof. Stephen Tierney.

Arne Cools & Tess Heirwegh (master students Advanced Study of Constitutional Law, UGent), Jurgen Goossens (doctoral researcher, UGent) & Pieter Cannoot (academic assistant, UGent)

YES NOThe year 2014 may already be called historical for separatist movements in Europe. On 18 September the Scottish people voted on a possible separation from the United Kingdom, though the outcome was negative. Today, the Catalans will express their view on the strive for Catalonian independence. Furthermore, the popularity of the nationalist movement in Flanders is still not decreasing. In June 2014, this resulted in a large election victory for the N-VA.

The call for autonomy and independence sounds louder than ever in the so-called European stateless nations. This tendency cannot only be attributed to a historical and cultural sense of unity at the regional level. The financial crisis in Europe made some federated entities aware of their own economic strength, which they cannot fully develop or of which they have to cede a part to other regions. Often, this creates a desire to fully possess their own resources and to use these entirely for internal needs. This blog post analyzes the right to self-determination of regions, with emphasis on the situation in Scotland and Catalonia.

The ‘neutrality’ of international law 

Although international law takes a neutral position regarding the existence of a right to self-determination, it is quite clear that the right to unilateral secession can count on little or no support. It can be argued that regions such as Scotland and Catalonia already practice their internal right to self-determination. After all, they have the opportunity to determine their political status freely and to develop themselves economically, socially and culturally.

The possession of a clearly defined territory is a requirement for recognition as a new state. Regions such as Scotland and Catalonia experience little or no problems in terms of this criterion. But if we consider a possible independence of Flanders, a significant problem arises: quid Brussels? Brussels is situated above the Belgian language border and is enclosed by the Dutch linguistic area. However, the Francophone presence in Brussels is much larger and the French Community has emphasised its ties with Brussels by the symbolic creation of the Federation Wallonia-Brussels.

The recognition of a new state usually does not occur without any problems. For example, to this very day Spain still opposes an official recognition of Kosovo out, fearing the effects for the strive for independence in Catalonia. Whether or not to recognize a state can be seen as a political statement. Probably, states that have to cope with separatist movements would not be inclined to recognize Scotland or Catalonia as an independent state. Nevertheless, a (political) price would have to be paid for recognition.  

EU Membership

For the first time, regions strive for independence while at the same time they want to remain a member of the European Union. Since there has been no precedent, uncertainty remains. Former European Commission President Barroso stated that the regular procedure of Article 49 TEU would have to be followed. However, this is a time consuming process in which all Member States have to approve unanimously. Another method could be based on Article 50 TEU, according to which the new state would have to negotiate its membership with the European institutions before the separation takes place. David Edwards, a former British judge in the Court of Justice of the EU, believed that this procedure should be possible. Moreover, it seems clear that almost no one favours a situation where Scots or Catalans would suddenly lose their EU citizenship and Erasmus students in Scotland or Catalonia would suddenly become illegal immigrants. However, it seems inevitable that an independent region would pay a (heavy) price for the required unanimous approval of its EU membership.

Should the People decide?

Regions such as Scotland and Catalonia search with varying success to channel their desire for independence through a referendum. Such a referendum is based on popular sovereignty, a principle which is based upon the idea that the Constitution is an expression of the voice of the people ( cf. the preamble of the US Constitution: "We the People [ …] do ordain and establish this Constitution " ) and that the people logically retain a (direct) right to participate in thorough revision of the constitutional framework.

Although, in a strictly legal point of view, the possibility of a binding referendum depends on an explicit constitutional provision, the Canadian Supreme Court stated in a case concerning an independence referendum for Québec that the Constitution is not an absolute strait-jacket. Negotiations with the parent state can be started when a 'clear majority' replies to a 'clear question' in favour of independence. This cryptic description caused a lot of confusion. When is a ‘clear majority’ reached and what constitutes a ‘clear question’? Until today, there is no consensus on these questions.

Scottish referendum: unique chance for nationalists

The Scottish Parliament and the Scottish Government were established by the 1997 referendum and the 1998 Scotland Act. The gradual process of decentralization gave the Scots some sort of devolution, without having an equal amount of power as the central government. In 2011, the Scottish National Party (SNP) was able to form a new government with based on a large parliamentary majority. This government immediately announced the organization of a referendum about Scottish independence in the autumn of 2014. It is remarkable that Scotland acknowledged that it didn’t have any legal power to organize a binding referendum about its independence. On the other hand, the absence of a written Constitution in the United Kingdom led to a more flexible interpretation of the legitimacy of the referendum.

The process that followed can definitely be considered as unique. The British and Scottish governments started negotiations to formalize the referendum. They marked the outlines for the referendum process in the so-called Edinburgh Agreement at the end of 2012. 

Although the Scots voted against Scottish independence on 18 September, the referendum surely remains a highly historical event. Its precedential value for other independence movements in Europe should not be underestimated. The British government acknowledged the principle that Scots have the right to decide in a referendum whether they still want to be part of the United Kingdom or not. Furthermore, both governments came to an agreement about the organization of the referendum. This is definitely unseen in world history.

Despite the result of the referendum, Prime Minister Cameron now will be forced to keep his promise about giving more devolution in case of a no-vote. Therefore, the major political parties have started negotiations, which have to result in an agreement by the end of January 2015. This will lead inevitably to a so-called ‘devolution-max’ for the Scots and will contribute to a growing institutional asymmetry within the United Kingdom. Moreover, a potential referendum about the exit of the United Kingdom from the European Union will undoubtedly cause a revival of Scottish independence claims. After all, the Scots seem to be a clear proponent of EU-membership. Are we heading to a new Scottish referendum in three years?

Catalonia, the next EU-member state?

cataCatalonia is a region with a distinct rich history, language and culture. However, the Franco Regime brought a serious repression with it. After these dark times, the new Spanish Constitution explicitly recognized the regions and granted them some sort of autonomy. The 1979 Estatut d'Autonomia de Catalunya made the creation of a Catalonian Government and Parliament possible.

Because of the strong Catalonian self-awareness, the call for increased autonomy rose. However being one of Spain’s most prosperous regions, Catalonia hardly had any fiscal powers and didn’t receive a fair part of its gained fiscal incomes. In 2010, the combination of these facts led to a reform of the 1979 Autonomy Statute. However, after the parliamentary revisions and proceedings with the Constitutional Court,  it turned out to be a futile effort. The Catalans were outraged and they took it to the streets to protest. After the 2012 elections, they proclaimed a Declaration of Sovereignty, in which the Catalan people received the right to decide about their own future. Nevertheless, shortly after this document was stated unconstitutional.

In the aftermath of these events, the Catalonian president Mas declared unilaterally to organize a referendum about a potential Catalonian independence on 9 November. However, the constituting law was suspended by the Spanish Constitutional Court in a procedure brought up by the Spanish Government. Indeed, the Spanish Constitution determines that there can only be a referendum when it is held by the central government and when it takes place on the entire Spanish territory. 

After this decision, a non-binding referendum was announced to take place on 9 November, today. Although such poll doesn't involve any juridical consequences, it could imply a serious boost for the strive for Catalonian independence. Even though the Constitutional Court suspended the symbolic referendum earlier this week, president Mas nevertheless decided that the non-binding referendum would take place today.

It is clear that the dynamics in the United Kingdom and Spain completely differ. While Scotland received the freedom by the British government to hold a referendum, the Spanish government continued to oppose the Catalonian demand. It is our opinion that repression often achieves an opposite result. The fact that the central government gave Scotland the freedom to organize a referendum, has probably convinced many Scots to vote 'no' and still remain a part of the United Kingdom…

 

Concise bibliography

1) C.K. Connolly, “Independence in Europe: secession, sovereignty, and the European Union", Duke Journal of Comparative & International Law 2013, vol. 24, 51-105.

2) G. Klabbers, “The Right to be Taken Seriously: Self-Determination in International Law”, Human Rights Quarterly 2006, 186-206.

3) F. Requejo & M. Sanjaume, “Recognition and political accommodation: from regionalism to secessionism. The Catalan case”, Departament de Ciències Polítiques i Socials Universitat Pompeu Fabra Barcelona – Political Theory Working Paper, 2013, 1-27, available at https://repositori.upf.edu/handle/10230/20628.

4) A. Rubin, “Secession and Self-Determination: A Legal, Moral, and Political Analysis”, Stanford Journal of International Law 2000, 253-270.

5) S. Tierney, “Legal Issues Surrounding the Referendum on Independence for Scotland”, European Constitutional Law Review December 2013, vol. 9, 359-390.

Source image Yes No

Source image Catalonia

 

 

 

 

 

 

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