There is a new situation in the European Union. In several Member States parts of these states have the intention to become proper states themselves – Scotland from the UK, Catalonia from Spain.
We had this sitution already, but before the membership in the EU, between the Czech Republic and Slovakia, and in a negative sense, when the former German Democratic Republic finished as part of Germany in 1990. There it was an addition to the present EU and no split-off.
The question is now, should these possible new states have to negotiate a new accession to the European Union, or could this be “implied” more automatically? In this light, the President of the EU Commission, Mr. Barroso, declared some weeks ago that new negotiations would have to be undertaken.
This may have been said in error, if this had been said indeed. There are ways and means of an “automatic” succession to the EU membership, and above all this should be excluded from any discussions. It is interesting that the argument of new negotiations is mostly applied by those who oppose the “secession”. In the background there sounds a threat to veto then the possible membership. This would mean a new form of political hostage-takiing with the means of EU membership, and this is totally unacceptable.
It has to be borne in mind that the EU has never seen such a secession and the consequences of being in the EU furtheron or not – this is just simply not known, and there is no prejudice, treaty article or case law. Only Greenland left in 1985 the EU, but not the Danish umbrella. This came partly only much later, and it is a completely different case.
As a German who was born into this country’s federalism and thinks automatically federalist, it was not easy to understand why “federalism” is used in the United Kingdom as a word equivalent to devil, bad ghost, witchcraft (or worse expressions). The official Great Britain always saw things as they had always have been seen by some of their elites, and thus expressed a kind of structural conservatism which ended in a kind of intellectual explosion according to the core-periphery principle at the periphery, i. e. in Scotland. In France, since Pompidou every Président contributed in reforms to decentralise the country. Although in the UK “devolution” ended in own parliaments for Scotland and Wales, this was not enough, as there is still an existing antipathy in Scotland (and Catalonia) against the capital and its “arrogance”. One can discuss now if the inverted commas should be deleted or not, but it does not help. Whatever the result of the Scottish referendum will be, once they will succeed to go independent – and the more the core or centre or the capital works against this, the more decided Scotland will work in the future for its independence. If London would have had a true “federalist” approach to Scotland, its oil, its other issues related to the referendum (including Europe as an issue), from the beginning, i. e. from the 1970s or 1980s, we would not know this discussion we see now. Scotland would have perhaps a relationship towards England and Wales similar to a German Land towards other Länder. But the United Kingdom unfortunately never managed to follow the needs of a modern state to decentralise.
Why now Mr. Barroso was wrong when indeed saying that there must be new negotiations if Scotland wanted to remain in the EU?
First, Scotland (and Catalonia) is integral part of the European Union and therefore can not accede to it. New negotiations are, however, only reserved to states who want to become Member States. Scotland (and Catalonia) are already part of a Member State, and they evidently do not intend to change this. They want to keep the whole acquis. If this is the case – and it is, evidently – to hold new membership negotiations would be a legal abuse. It is clear that the referendum question will not concern to withdraw from the EU, but only from the UK. Article 49 EU Treaty (Lisbon I), like the predecessing treaties, says that every new state who wants to come to the EU can do this (not directly, but indirectly, of course, as this case never has been thought of). It is evident from the whole context that this does not refer to today’s regions who may be tomorrow’s states but are already in the EU. In the EU a constellation like Scotland / UK has never been observed before, and in this context art. 49 ECT cannot be applied according to its present wording.
Second, the whole EU acquis (what has been achieved by the EU so far) will be taken over as such – without any changes except editorial issues or concerning the representation in EU institutions.
Third, East Germany was not split off from any country but joined as such the Federal Republic, which means there was an “inverse Scotland effect”. Indeed, in 1990 the whole GDR – later the five East German Länder – “glissed” into the EU – “ohne Beitrittsverfahren, ohne Vorbedingungen, ohne Vertragsänderungen”, - ”without an accession procedure, without conditions, without Treaty changes” as it can be read by the words of Carlo Trojan, the relevant Commission official who took part in the negotiations (in German).
Fourth, the so-called state succession in international public law does normally not deal with a modern integration like the EU and parts of one of its Member States who want to go independently. The so–calld “universal succession” cannot be applied here, as it does not concern the membership in a partly supranational body like the European Union. There are in the international public law literature many sources where in case of doubt this would be possible, however.
The consequence is that it has to be considered under political aspects – nothing more, nothing less. My modest football knowledge tells me that Great Brritain will after all not treat Scotland in an unfair way, otherwise and in case the independence would be denied, this will ricochete. Also Mr. Barroso will have to concede that this procedure will have to be seen under political aspects.
And one of these aspects is the self-determination of countries. This is an absolute value, a true value of modern Europe and for the EuropeanUnion. If therefore one, two or even three or maybe four new coutries would emerge – the Europeans are so sovereign to accept this, why not?, and for the citizens nothing substantial will change as well, as there are the Four Freedoms in economy, the Union Citizenship in the EU, the Schengen Agreement (well, not for UK yet) and the full free movement for persons – one of the Four Freedoms – in the whole EU.
But the more nationalist, backwards-looking, non-caring, them-and-us-thinking, provincial and constipated the present British government parties will think, at least the bigger one, the more they will give arguments to the Scottish people to vote in a positive referendum. If not in 2014, then in 2018 or 2022. And the European Union again will shake its head about their British partners who lose more and more influence among the EU – and this in a time when all others go closer together.
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