Journal (www.eufaj.eu)
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 (http://www.euractiv.de/europa-2020-und-reformen/artikel/wie-die-ddr-lautlos-in-die-eu-flutschte-003717)
[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.
http://libertasblogs.wordpress.com/2012/10/29/scotland-or-catalonia-does-not-need-new-eu-membership-negotiations/
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