Monday, January 17, 2005

Internal Enlargement in the EU

This blog-entry will try to explain the concept of “internal enlargement” in the European Union. Concentrating on the recent Spanish case it will discuss possible legal and political implications of this phenomenon. At least at the level of political theory the case of “internal enlargement” presents an important challenge to the entrenched definition of sovereignty.

As it is generally known, the concept of “external” enlargement of the EU (or simply enlargement) refers to the process of integration of new states into the EU polity. In this way, 1st of May 2004, what was Europe of 15 accepted another 10 states (largely East European countries ex-members of the Warsaw Pact, for example Poland, Hungary, Czech Republic etc.) All new Member States of the Union had to undergo a long process of institutional and political integration into the EU. In order to become members of the Union they had to accept legal standards of the Member States of the Union.

On the other hand, the process of “internal enlargement” refers to territorial dismemberment of the states already members of the European Union. In this way, according to the proponents of the recognition of such a right, stateless nations in the European Union (e.g. Scots in the UK, Basques in Spain, Hungarians in Slovakia etc.) would have the possibility, within the framework of the EU, to secede from the Member State to which they belong to.

In this way we come to the Spanish case. On 30th of December 2004, the Basque regional parliament adopted the plan (so-called Ibarretxe-plan, named after the regional president) which called for the change of the autonomous status of this Spanish region. For an extensive journalistic account on the Ibarretxe-plan see (the French
“Le Monde”, the UK “Independent”, the UK “Guardian”, and the “Time Europe Magazine”). This change calls for the establishment of the free state of Euskadi (i.e. Basque Country) defined as a “free nation associated with the Spanish State.” The plan would give the Basque regional government the right to call referendums, opening the door to a possible future vote on independence, while removing a Spanish government right to suspend the regional government's powers.
Almost the entire Spanish political spectrum (apart from other autonomists such as Catalan parties) rejected this plan of the Basque regional Assembly. The Nationalist People’s Party called the plan,” treason”, while the current Socialist Prime Minister Zapatero considers it contrary, to both, Spanish and the European Constitution.

As far as Spanish legal system is concerned, it is going to be subjected to the standard constitutional procedure of the revision of the statute of the Spanish autonomous region. After the plan for the reform of the statute of any autonomous region gets adopted it has to be submitted to the Spanish National parliament, which can approve or reject it. Moreover, independently of the Parliamentary approval, there is a possibility that a plan gets struck down by the Constitutional Court. In any case, politically speaking there is no chance that the Spanish Parliament approves the Ibarretxe-plan. In this case the partisans of the Basque autonomy/independence threatened the Zapatero government that they will proceed with a referendum anyways. To remind, the main purpose of the Ibarretxe-plan was to give regional autonomies the right to call a referendum, a right which under a current Spanish constitution belongs to the exclusive national authority.

It seems obvious that the Ibarretxe-plan stands in collision with the Spanish Consititon. What about the Treaty Establishing a Constitution for Europe? The partisans of the right of internal enlargement at the European level, namely the Stateless nations inter-group of the EU Parliament (
here, , see also, and, and finally), during the Convention that brought about the new European Constitutional Bill, struggled for the constitutional recognition of such a right. They argued, “the new Constitution has to contain mechanisms for the practical exercise of the right to internal enlargement, as a concrete modality of the exercising the right to self-determination in this particular historical process.” Such proposal has been flatly rejected by the convention. In Title I, article 5, of the Constitutional Treaty the European founding fathers affirmed, “[t]he Union shall respect the national identities of the Member States, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including those for ensuring the territorial integrity of the State, and for maintaining law and order and safeguarding internal security.” Despite the fact that some believe, quoting Title I, article 2 of the Constitutional Treaty (“[t]he Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination.”) that there is still place for “internal enlargement”, it seems that the proponents of the integrity of the Member States won over.

What are the possible future institutional possibilities for the constitutional recognition of the right of “internal enlargement” at the European level? Even if such a right were to be recognized by some future change of the European constitutional structure it is still uncertain that, practically speaking, “internal enlargement could occur. Like in the case of external enlargement, for a new state to be admitted in the EU, a consensus of all members of the European Council (i.e. highest representatives of the Member States governments) has to be reached. This would also require for a Member State that would ‘suffer’ from “internal enlargement” to agree with the secession of the part of its territory. How politically possible is this?

There are other interesting legal/political puzzles raised by the question of “internal enlargement”. First would the country applying for “internal enlargement” be considered as to automatically fulfil the criterion for being admitted into the EU, or would its standards in terms of fulfilment of the acquis communautaire be re-evaluated so to speak.
As far as political philosophy is concerned, “internal enlargement” could present an interesting instrument to re-conceptualize the traditional definition of state sovereignty and the legitimacy of state’s powers.

As far as the communitarians are considered, “internal enlargement” goes towards the fulfilment of their dream where every nation has a state of its own. Also this argument could be convincing for those who are convinced that a meaningful democracy (i.e. deliberative democracy) is possible only within a small community. There are others who are sceptical of such political developments. It is enough to look at the painful experience of the post-Cold War period, to be wary of an outright recognition of the right to secession. What seems as a reasonable communitarian argument can easily transform into the drum-beat of the new nationalistic wars. Does the EU supranational framework make a difference in this case? Arguably, the institutional structure of the EU plays a role of a pacifier of the claims for national autonomy. In this way the peaceful realization of the communitarian dream (for those who believe in it) of “every nation has its own state” is possible. This is the essence of the argument of the authors who elevate the concept of “supranationality” at the level of fundamental purposes of the EU (see Joseph H. H. Weiler, The Constitution of Europe : 'Do the New Clothes Have an Emperor?' and Other Essays on European Integration

Arguably, however recognition of the right of secession, or if not an explicit constitutional recognition then at least existence of the political opening for such an outcome, is a sign of the elevated quality of a democracy of a particular country an can exist even outside of the supranational framework, within classical Westphalian states such as Canada for example.


Jack Monterey, California said...

Good analysis. One point I want to make though. If Scotland were to become a new independent state, we would actually have two new legal entities, Scotland and "the UK without Scotland" (so to speak). That is, the EU would have two "brand new" states, two entities that did not exist before as such (UK-without-Scotland had not existed before as a EU member state). Therefore, there would be no "Member State that suffers from internal enlargement" + the seceded state, but two new entities. This is easier to see in the case of political divorces like that of Slovakia and the Czech Republic, but the same case would apply in a "Scotland + UK-without-Scotland" situation, or a "Catalonia + Spain-without-Catalonia" situation, and it becomes even clearer if Belgium were to break in two (Flanders and Wallonia, even if the region driving the secession process would arguably be Flanders).

The analogy of marriage is a good one, legally speaking: after divorce what we have is two people, not a marriage + a person (the person who initially pushed for divorce). In the case of "national divorce", whatever Treaties the Spanish state signed, it signed also in the name of Basques and Catalans. An independent Catalonia, for instance, would be as heir to the Spanish state as rump Spain (or Spain-without-Catalonia). That has other implications: both new entities, following the Treaty of Vienna, would only need to formally confirm to the EU that they intend to continue as part of the EU (and let's not forget that the Treaty of Lisbon, now completely in force, allows for member states to withdraw from the EU).

Jack Monterey said...

What this means is that the "rump" state would not be in a position to block entrance to the EU to the "seceded" state, as both new national entities would be in the exact same situation: they would be by default member states as long as they formally confirmed that they continued to be party of whatever treaties the former state they were part of had signed in their name.