This blog post has been archived here for reference and was originally published on the 28th September 2014 via Assessing Accession:  It was published in the aftermath of the original 2014 Scottish Independence Referendum.

What happens when part of the EU secedes from an existing member state, but wants to stay in the EU as a new independent member state? What would the implications of accepting new members from within mean for those candidate, potential candidate and aspiring associate states currently without EU membership? This blog post examines these questions in relation to recent events in Scotland and elsewhere.

The Scottish Independence Referendum of the 18th September 2014 is over and for many in Europe there was no doubt a collective sigh of relief when the no vote was declared the following morning. The former Italian Prime Minister Enrico Letta tweeted (in Italian):

Translating as “Scotland has decided. Good for us and for Europe. Now let’s not ignore the intolerance and fears which encourage separatists.” The BBC claimed that the German Chancellor Angela Merkel, when asked if she was pleased at the outcome, apparently stated: ” I will not comment on this but just smile” – certainly more dignified than a purr allegedly given by the Queen, but every bit as damning of the pro-independence goal and indicative of the lack of support that Scottish independence appeared to have among senior European political elite.
That relief though may be short lived, with the ‘Scottish No’ proving little more than a stay of execution. Scottish independence voices have not been silenced in defeat and the ‘movement’ appears to be regrouping as evidenced by the mass demonstration held outside the Scottish parliament building in Edinburgh on Saturday 27th September, and the fact that numerous other mass rallies are planned in Edinburgh and around the country, including one called by the Radical Independence Campaign (RIC) for the centre of Glasgow at George Square – the scene of both shocking violence perpetrated by loyalist supporters of the winning ‘no’ camp the day after the referendum and subsequently an example of human generosity by the vast donations of bags of food for Glasgow’s many ‘food bank’ projects. These projects featured heavily in the debate during the independence referendum campaign as an example of the failure of the existing UK state to provide even basic living standards for many of its citizens [it’s worth remembering that in the UK’s complex devolved government system, social welfare policy and economic policy remain the reserved power of the London based Westminster government].
Furthermore, most strikingly, the Scottish National Party (SNP) which led the defeated ‘yes’ campaign has witnessed a surge in party membership, rising from 23000 before the referendum to over 70000 within just over a week of the result, making it the third largest political party in the UK. While it remains to be seen if these numbers are sustained throughout the coming year/s, it does give the SNP a potentially strong position going into the 2015 UK general election. This is important because if the SNP and other pro-yes parties are successful in winning a substantial number of parliamentary seats in the 2015 election and follow this up with success in the 2016 Scottish Parliament election then it keeps alive the potential for for another #indyref vote at some stage.
The SNP have not ruled another referendum out, but have stated that it would only happen if triggered by either mass public support, the failure of the UK government to deliver on promised new powers for Scotland, or if an event of significant political importance, such as the withdrawal or threat of withdrawal of the UK from the EU, were to happen.  And of course, independence for Scotland remains the long-term goal of the SNP, the Scottish Greens and a whole range of new Scottish civil society organisations that were born in the fires of the recent referendum campaign. Any belief that the ‘Scottish No’ represents the demise of the idea of Scottish independence is very much mistaken.
Screen Shot 2017-03-22 at 23.55.18
Picture Source: naomiself on instagram – Glasgow George Square Food Parcel donations
Elsewhere in Europe, the flames of secession are being fanned by others. Catalonia is by far the most significant and its leader Artur Mas plans to move ahead with holding its own independence referendum.  Of course Catalonia is not Scotland and there are important differences in how that referendum process will play not, not least the fact that the Spanish Government refuses to accept the legality of the proposed referendum [a fundamental difference between the attitude of the Spanish and UK governments]. Independence movements exist across the EU territory, few are of any real threat, but some, like Scotland, Catalonia and Flanders are significant enough and have enough momentum to possibly succeed in the future.
Regardless of the implications for the member state they would be breaking away from, secession raises a fundamentally important question for the EU. It is a question that to date the EU has refused to adequately address [at least publicly] – how do you absorb newly independent states that emerge from existing EU member states and who wish to remain within the EU? There are a range of possibilities and a large number of academic papers theorise about how this might be done. The short and most quoted answer has been that because the EU is a treaty based organisation, any new states breaking away from a treaty signatory would no long be party to the treaty and therefore have to reapply for membership in its own right. Seems simple enough, but what few people seem to recognise or choose to ignore is that the treaties on which the EU is based fail to provide clear direction on how this would be achieved.
Article 50 of the Lisbon Treaty does allow for a member state to withdraw from the EU but it says nothing about part of a member state. Any withdrawing state would have to undergo upwards of two years of negotiations to disentangle itself from the existing web of obligations its membership includes. We would assume that if the ‘withdraw and reapply’ position set out in Article 50 is the only policy position for Brussels for such newly independent states which have emerged from within the EU territory that it would need to undertake a similar period of negotiation to disentangle the seceding territory and that this would need to be done in parallel with any negotiations between the seceding state and central government of the territory it secedes from. This parallel negotiation would be necessary because the issue of combined sovereignty between the EU and its member states where exclusive and shared competencies exist. It would be highly impractical not to do the two things at the same time, although it would also require a seceding territory to be given the legal competency to undertake negotiations with the EU otherwise the central government of the member state (as in the case of the UK where Europe remains a reserved power for London) would need to negotiate on behalf of the seceding territory – putting it is a difficult position due to a potential conflict of interest.
If the EU were to wait until the new state was formally independent then this would require a tacit acceptance of EU membership of the newly independent state while it undertakes the withdrawal negotiations.  This is where things get complicated, this position assumes that the new state would accept to voluntarily withdraw from the EU, thus triggering the negotiation period. If the position of the new state is to remain in the EU, it could claim that the negotiations are null and void. The EU could accept the implied membership of the new state, but then suspend its treaty rights, such as voting privileges (which technically it never really had), until such time as the withdrawal negotiations were complete. The EU is unable to expel a member outright. But if the intention of the newly independent state is to reapply for EU membership then, why would the EU bother to go through the process of negotiating withdrawal only to renegotiate membership. It would be a cumbersome and time consuming process and it would make much more sense for the EU to simply undertake a renegotiation of membership obligations within the existing treaty system and ensure that there was a continuity of membership thus minimising disruption (which could be detrimental not only to the political functioning, but also the economic well-being of all parties involved) as much as possible. This same logic applies to any negotiations that might take place in parallel with the independence negotiations within the member state.
It is highly unlikely that the EU would seek to expel (legally impossible), or claim that the treaties no longer applied (technically possible) because it would not only create a sense of uncertainty and disruption but it would go against the spirit of the union (legally not an issue but a powerful moral argument could be made) and therefore it is likely that a solution to a new state forming within the EU would be found and that the solution would seek to make the process as straightforward as possible. This of course would mean that the EU would continue to enlarge, not geographically but in terms of members. This is turn would have implications for the various institutions all of which would need to accommodate the new member state.
What about those states currently without EU membership but who have expressed a desire to join? While there is very little they can do to stop the EU enlarging from within and accepting new members in light of fragmenting member states, it does create a bit of a conundrum, especially if the EU has explicitly slowed down the accession process for these states, as seems will be the case under the Juncker Commission where a “pause for enlargement” has been put forward.
Commission President Jean-Claude Junker has instructed his commissioner on neighbourhood policy and enlargement, Johannes Hahn, in a mission letter, that “following the extensive enlargement of the Union in the last decade, the next five years will be a period of consolidation, with no further enlargement taking place during our mandate”.

Would such a pause also apply to a newly independent state from within the EU’s existing territory? The important word here is ‘consolidation’ and if that is key to the direction of Junker’s mandate, then he will not wish to see the EU plunged into a potential political crisis by having part of its existing membership forced to leave or be locked out of the Union. Rather than spend months or years negotiating an exit from and re-entry to the EU, Juncker and the EU will more likely negotiate to find a way to retain Scotland, Catalonia, Flanders or any other seceding territory within the EU. That would be a more sensible and practical thing to do. The quote on ‘no further expansion’ therefore must be read as one that is aimed at those existing and potential candidate states in the east and southeast of Europe, including Turkey.

Is this a case of double standards? If we look at this as a moral question, then yes it could be argued as a double standard, but from a practical point of view then probably not when you consider the complexities of independence within the EU and the need for the EU to keep its own house in order. But, what is clear is that any enlargement of the EU from within while it maintains an explicit policy of ‘pausing enlargement’ for those states beyond the union will not boost the morale of those Southeast European and Eastern partnership states currently seeking or hoping for membership. This could lead to an ‘even’ more complex relationship between the EU and these states and reduce the EU’s influence within them. This would be a disaster for the EU’s foreign policy.  Likewise, it could also see the end of the EU’s geographical expansion altogether if these states decide that membership of a ‘club’ that treats them not as equals in the family of European nations is not a club worth joining.

So what does all of these mean? The bottom line is that the Scottish independence question did not stop being an issue on the 19th September when the ‘no’ vote was declared. It is compounded by some additional and very real secessionist challenges that are rapidly moving up the political agenda for key EU member states.  The question of how to deal with such situations and address the serious implications it would have for the EU must be addressed head on and the EU cannot continue to claim that this is an issue for member states to address internally. To do so will mean that the smile of a German Chancellor could quickly become grimace. Therefore, any revision of the EU’s Treaty of Union must include clear, practical guidance on how to address this issue. Even if it is not in its interest to see a member state fragment, the need for a clear route to membership from within must be set forth. This would clearly create an internalised enlargement perspective separate from the external enlargement policy, thus allowing the EU to have two distinct enlargement processes.
Fears that this might lead pro-independence regions to seek to further their interest have to be set aside and the EU would need to accept that it is a stakeholder in the independence debates that would emerge. If it does this then it could legitimately work in partnership with the member state government to oppose independence. This would be a much more honest and transparent approach.  In the event of a successful independence campaign all parties, the seceding territory, the member state and the EU will be required to work together in good faith to quickly resolve the issues of membership continuity.
It will also require the EU to consider its commitment to expansion beyond its existing borders. As a foreign policy priority enlargement to existing independent states may be considered separate to any internal enlargement process, but a deliberate attempt to obstruct or slow the process of a state’s ability to work towards meeting all the necessary membership criteria will not be viewed well by that state. Internal expansion will merely highlight that the EU does still have capacity to absorb new states and therefore a feeling that these states are being discriminated against could emerge. This would undoubtedly weaken the EU’s foreign policy by curtailing the power that membership options currently afford it.
It is argued that the Scottish independence referendum even in light of the ‘no vote’ will lead to change within the UK system of government. The EU should also take note and use this as an opportunity to reform its own position on enlargement as a policy matter. Failure to do so and continuation of the status quo will only lead to a more complex set of problems to deal with in the longer term as it seeks to balance a fragmenting Europe with an integrating Europe.

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