An Examination
of The EU’s Negative Attitude Towards Secession

 Introduction

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Secession is subject to enormous scrutiny by those involved in
international relations and other related fields of study. The reason for such
scrutiny is this: secession is a contentious concept, there is a lack of
consensus as to what exactly a secession entails and what can be considered a secession.
Secession can be most aptly described as a withdrawal of territory from an
existing state, resulting in the existing state losing its sovereignty over the
seceding territory.

In this essay, I intend to examine the negative attitude of the European
Union (EU) in relation to secessionist movements within Europe and decipher
what factors inform and influence this attitude. The essay will be divided into
three sections. The first section will detail a brief examination of some of
the literature on the topic. The second looks at the place of secession in EU
law. The third and final section discusses the existence of moral
justifications for secession and questions whether the most prominent
separatist movements in the EU, Catalonia and Scotland, have just cause for
seeking secession.

 

A Brief Illustration of
Academic Thought on Secession

Secession is closely intertwined with the concept of self-determination. Self-determination
is, as defined by Mancini, ‘the freedom for all peoples to
decide their political, economic and social regime’ (2012, p. 487). Self-determination can therefore be seen as a precursor
to secession. However, scholars and international law alike have argued for the
reconceptualisation of self-determination as an entity separate from its
possible consequence of secession. International law has also promoted the
reconstruction of self-determinaton into procedural rights, as opposed to substantive
rights that can be judicially enforced (Klabbers, 2006). If suitably promoted and encouraged by international
law, self-determination can be a force for stability and order (Philpott, 1995).

As is the case with
all questions pertaining to secession, there is little consensus about the
possible justifications, if any, of secession. Primary rights theorists believe
in the existence of a unilateral right to secede, independent of the violation
of other rights. Remedial right theorists maintain secession should be permitted to rectify injustices
caused by the violation of other rights (Mancini, 2012). Mancini acknowledges the most critical concern regarding remedial rights
theory: the innate
difficulty in defining and qualifying injustices. Potential consequences that
could affect both the seceded nation and the state from which they have seceded can
be important in determining whether the secession is morally justifiable.
However, accurately quantifying
to what extent adverse consequences were the direct result of secession is
extremely difficult (Philpott, 1995).

The EU is of utmost significance to the secessionist movements throughout
Europe: secessionists have
long utilised notions of European integration and an immediate
reacceptance into the EU as a crucial
component of their political rhetoric (Bourne, 2014; Connolly, 2013). However, the EU is adamant any
hypothetical new state
that secedes from an existing member state will have to follow the
standard application process, a similar stance held by other international
organisations in this context. (Connolly, 2013). The importance
of European integration to the EU and EU law itself requires that the EU take a
neutral position
in relation to secessionist movements (Kochenov et al., 2016). This is a highly
normative stance that ignores the means through which the EU disapproves of secession:
arms embargoes, diplomacy, enlargement conditionality and peacekeeping missions
(Bourne, 2014).

 

Secession
in EU Law

EU law perpetuates the EU’s negative attitude to secession. Although EU law
may claim to be neutral on this contentious issue, it is obvious that secession
is disfavoured. Secession has almost exclusively negative connotations, due to
the representation of a change in the status quo. Secession is assumed to have
a tense relationship with the principles of sovereignty and territorial
integrity (Connolly, 2013), despite the fact these are the exact principles
secessionists seek to uphold in their new state. Hence, this is what Susanna
Mancini was referring to when she described secession as

            ” at once the most
revolutionary and the most institutionally conservative of political
constructs. Its revolutionary character lies in its ultimate challenge to state
sovereignty; its conservative side in the reinforcement of the virtues of the
latter.” (2012, p. 481).

 

There is minimal mention of secession in international law. Whilst
self-determination is considered an essential principle, it has been watered
down from an enforceable substantive right to an open-ended principle to
alleviate the inherent difficulty of having the courts preside over political
differences when there is an absence of clear legal guidance (Klabbers, 2006). However, it is imperative to remember that although
general international law is binding for EU members and institutions, it is not
EU law.

There is even less reference to secession in EU law. This overwhelming lack
of legislation on such a pertinent issue in modern Europe suggests either an
enormous oversight on the part of EU legislators or fear of a loss of power,
reinforcing the EU’s negative attitude to secession. However, given that EU law
is the set of rules devised by and for the member states themselves, it is
unsurprising that said states were unwilling to allow provisions for a right
that could justify their dismemberment (Connolly, 2013).

 

The EU uses a mask of neutrality to avoid dealing with secession. Article 4
of the Treaty on the European Union (TEU), which forms the basis of EU law, explicitly
states matters of national identity and territorial integrity are outside the
scope of EU law (“Article
4,” n.d.). This allows states to craft their own laws regarding
secession. Leaving the drafting of such delicate legislation to the obviously
biased ensures the continuation of that bias. These are not the actions of a
neutral institution. The refusal to consider a more active role in the creation
of laws on secession demonstrates a complete willingness to allow this bias to
continue unchallenged and destroys the facade of neutrality.

 

A Right to Secede? Moral
Justification and Qualification of Secession

Does a moral right to secede exist? On what grounds does this right exist?
Under what conditions is it considered appropriate for a group to exercise this
right? Speaking of groups, which kinds of groups can utilise the right to
secede? Should political institutions make legal provisions for this right, and
if so, what form of legal provisions should be used? Should international law
provide for the right to secede? Is a group which exercises its right to secede
legally entitled to the territory it inhabits, purely because of the decision
to secede? These are the sort of questions an adequate theory of secession aims
to answer in order to successfully qualify the right to secede (Weinstock, 2001). The difficulty of qualifying secession occurs because
the right to secede and the potential consequences of a right to secede are so
closely intertwined (Mancini, 2012; Philpott, 1995). Therefore, in order to make the qualification of
secession a more manageable task, there needs to be a tangible distinction made
between whether a right to secede exists and any ensuing consequences after the
recognition of that right.

Something pivotal that must be kept in mind when attempting to qualify
secession is why you are qualifying it in the first place. Secession faces
seemingly endless qualifications in order to be viewed as valid by those with
the power to discredit it, sovereign states and international institutions.
Sovereign states which possess power insist on the qualification of secession
to avoid the threat secession wreaks upon their sovereignty and territorial
integrity:

“To continue to affirm the sovereignty of existing states while denying the
claims to statehood of minority nations smacks of moral hypocrisy, an attempt
to apply a thin veneer of principle to the results of an entirely arbitrary and
unprincipled process, all the more galling when the veneer is being applied by
those who ended up on the winning side of the process.” (Weinstock, 2001, p. 191).

The argument against secession cannot be made within the state system for
this is an ultimately biased arena that will uphold the sovereignty and territorial
integrity and continue to perpetuate the negativity associated with secession.

 

Catalonia and Scotland are the two most prominent secessionist movements
within the EU. They are paradigmatic examples of stateless nations:
well-defined territories with unique historical, cultural, economic, and
political identities, that have retained their unique characteristics and
identities despite being incorporated into another state and culture for long
periods of time (Connolly, 2013). The maintenance of a distinct and separate identity
seems like it would justify the right to secession. However, according to most
analyses of secession, Catalonia and Scotland have no justification for seeking
secession. They are not former colonies that would at the very least possess a
right to external self-determination, nor are they the victims of repression
such that they would be obliged a right to remedial secession. The EU
propagates this negative assessment of potential Catalan and Scottish
independence. Former president of the European Commission, Jose Manuel Barroso
stated that it would be “extremely difficult if not impossible” for seceding
nations to rejoin the EU following secession (“Scottish
independence: Barroso says joining EU would be ‘difficult’ – BBC News,” n.d.). The condemnation of the Catalan referendum on
independence by the member states illustrates that the EU is not a welcoming
place for minority groups who wish to exercise authority over themselves.

 

 

Conclusion

To conclude, the EU has an overwhelmingly negative attitude towards the
prospect of secession. This is emphasised through the overt lack of legislation
on secession in EU law and the condemnation of popular separatist movements in
Catalonia and Scotland. The negative attitude is cultivated by an unbalanced
state system that is ultimately hypocritical in its celebration of sovereignty
of existing states but refuses to allow minority nations to claim statehood.