Following the regional elections in Catalonia on 27 September 2015 which saw victory for pro-independence parties, Maria Mut Bosque, Lecturer in International Law and EU Law at the Universitat Internacional de Catalunya, examines the legal possibilities open to Catalonia as it considers its future with the European Union. The issue of secession in EU member states was discussed in the run-up to the Scottish independence referendum a year ago, but many questions still remain unanswered.
From the perspective of international law, a territory must fulfil the following requirements in order to be considered a state: defined territory, a permanent population, government institutions and sovereignty. There is no mention of how sovereignty is acquired and this often varies in practice on a case-by-case basis: some states attain sovereignty through armed conflicts, whereas others have done so through peaceful negotiations. International recognition is a declarative, rather than a constitutive aspect; in other words, international recognition is not a legal requirement for the constitution of a state. The fact that it is not a legal requirement, however, makes it no less important, as international recognition is crucial to establish relations with other subjects of international law, such as states or international organisations. For a new state, failure to attain international recognition from the entire international community would imply maintaining only relations with those states and organisations that recognise it. Failure to obtain recognition from any other states or international organisations would result in isolation and marginalisation.
Secession: the silence of the EU Treaties
Concerning the European Union, the dilemma Catalonia that faces arises from the fact that the the internal matters of member states fall outside the scope of EU competences, and the EU would therefore not make any statements in favour or against Catalan secession. The Treaties of the European Union are silent regarding a situation like the one arising from Catalonia, i.e. the secession of a territory of a member state, or its status within the EU in the case of secession. This has given rise to a number of theories on the subject, none of which is absolutely certain owing to the fact that European law does not forbid or accept secession, but rather remains silent on the matter.
The future of an independent Catalonia: three options
These theories may be classified into three large categories we will label as follows:
- The Purist Bloc
- The Pragmatic Bloc
- The Acquired Rights Bloc
The first bloc is made up by those who follow a pure or even strict reading of the Treaties. According to these theorists, Catalan independence would give rise to the birth of a new sovereign state in Europe and, as such, it would have to request access to the EU, subject to the same procedures and conditions as any other state petitioning for access. Catalonia would therefore have to present its candidacy and it would have to be approved by every single member state, including Spain.
The second bloc argues that the EU would adopt a pragmatic attitude to integrating an independent Catalonia into the EU. This bloc argues that a Catalan exit from the EU would not only be costly for Catalonia, but for all other EU member states as well, especially Spain. This is due to the fact that, from a geographic perspective, Catalonia includes a significant portion of the Franco-Spanish border, and therefore failure to recognise Catalonia as a member of the Union would reinstate a border between large parts of Spain and the rest of Europe. This is not to mention the commercial and geopolitical importance of the airport and harbour in Barcelona for the whole of the European Union. Despite not being quite the same case, Germany may be used as a precedent of pragmatism: when Germany reunited in 1989, East Germany, which did not belong to the EU, was granted automatic membership on reunification with West Germany.
Lastly, the third bloc is made up by those who maintain that a Catalan secession would not require a new candidacy for European Union membership, but rather that it would simply remain within the EU due to the fact that the Catalan territory is already a part of it, despite not being a member state. Consequently, Catalan citizens and institutions have a series of acquired rights and obligations that would not be terminated, but rather succeeded. In this regard, on 1 April 2012, the European Commission refused a European citizens’ initiative (ECI) presented by the political group Reagrupament International, whose goal was to have the Commission ‘recognise as an automatic new member any state resulting from the democratic secession of another member state of the European Union’. The European Commission rejected it on the grounds that it was beyond the scope of the Commission’s competences, pointing out that European citizenship is linked to the nationality of a member state. In other words, it is additional to and does not replace national citizenship, as per art. 20 TFEU.
On the subject of nationality, some have suggested that citizens of an independent Catalonia would maintain their European citizenship by nature of remaining Spanish, due to the fact that, according to Spanish law, Spanish nationality cannot be renounced. However, this seems an unlikely option as wanting to separate from Spain and wishing to remain Spanish at the same time makes no sense and, furthermore, this option wouldn’t be useful for Catalonia as an independent state.
Kosovo and the EU: a precedent for Catalonia?
The European Commission points out that in the event of the secession of a part of a member state, a solution would have to be reached and negotiated according to international law. Here, the case of Kosovo could be used as a precedent, as it declared full sovereignty on 17 February 2008, and the International Court of Justice, in its advisory opinion of 22 July 2010, requested by the General Assembly of the United Nations, ruled that the declaration of independence of Kosovo did not violate international law. In what concerns relations between Kosovo and the EU, it is important to keep in mind that the European Commission adopted the Stabilisation and Association Agreement (SAA) proposal for Kosovo on 30 April 2015. The Head of the EU Office in Kosovo and EU Special Representative Samuel Žbogar stated:
“The adoption of the SAA by the European Commission marks an important step in the relations between the European Union and Kosovo. It is now up to the EU Council and European Parliament to agree before it can be signed and enter into force in early 2016. Once in force, the SAA will be the first contractual relation between the EU and Kosovo”.
However, the SAA clearly states that:
“None of the terms, wording or definitions used in this Agreement, including the Annexes and Protocols thereto, constitute recognition of Kosovo by the EU as an independent State nor does it constitute recognition by individual Member States of Kosovo in that capacity where they have not taken such a step”.
Kosovo has yet to secure the recognition of all EU member states. Spain, Romania, Greece, Slovakia and Cyprus do not recognise Kosovo as a state. Thus, the Kosovo agreement is unusual insofar as it is more limited in scope and concluded exclusively with the EU, without including “its member states”, as has been the norm to this day. For instance, the SAA with the Republic of Serbia, concluded in 1997 was entitled: “Stabilisation and Association Agreement between the European Communities and their Member States of the one part, and the Republic of Serbia, of the other part”.
Finally, it is also important to highlight an important question: the results of the elections held on 27 September 2015 in Catalonia resulted in an absolute majority of seats for pro-independence forces, the ‘Junts pel sí’ political coalition and the CUP. They are, however, extremely diverse political forces that can only agree on their desire for independence. There is a rift in what concerns other questions, such as the relations of a sovereign Catalonia with the EU. ‘Junts pel sí’ is supportive of EU membership, whereas the CUP holds eurosceptic views and, therefore, opposes EU membership.
Full EU membership or ad hoc agreements?
There is therefore one last option worth considering, that of an independent Catalonia outside the European Union that may nevertheless subscribe to ad hoc agreements with the EU related to currency, such as is the case of Andorra, the single market or an association agreement. Examples of this would be the 1995 Ankara Agreement, which allowed the EU and Turkey to be linked by a Customs Union agreement, or the case of Kosovo, which is gradually establishing a free trade area with the European Union, where free movement of goods, services and capital will be mutually guaranteed. This option would be relatively pain-free for Catalonia, as regulations have already been harmonised with those of the EU and the euro is already circulating in the territory.
In short, considering the silence of the Treaties and the European institutions’ insistence on not meddling in the internal matters of its member states, any of the above scenarios is possible.
Dr Maria Mut Bosque is Lecturer in International Law and EU Law at the Universitat Internacional de Catalunya and Research Fellow at UCL’s Institute of Commonwealth Studies.
Note: The views expressed in this post are those of the author, and not of the UCL European Institute, nor of UCL.