Wednesday, November 14, 2018
logo economy journal
< view full issue: Is European justice in crisis?
Araceli Mangas Martín

​The consequences of secession from a territory of an EU Member country

Professor of international law

A territorial modification, such as the separation of part of the national territory to constitute a new country, entails consequences for the membership of an international organization such as the European Union.

In Catalonia, those responsible for regional power have asked a loaded question about independence by manipulating the consequences of a secession. They have affirmed that independence will be done within the "European framework", which is a falsehood because the "legal-political framework" is beyond individual and secessionist control, rather it is decided on and regulated by rules of the European Treaties and of International Law in which all the Member countries decide together. There is no unilateral right to decide whether they will be part in the European Union or not.


Secesionismo


The change of status of a "regional community" from being an EU Member country to a new independent country, either through unilateral secession, or through an agreed separation, means that, since it is no longer a territory of Spain, it is outside the EU and all of its rules cease to apply -all rights and obligations-.


It is obvious to say that the European Union is not a country, rather a quite unique international organization, but an international organization nevertheless.


The territory is a constituent element of the existence of a country and identifier of the country. Unlike countries, international organisations do not have their own territory but only a spatial scope of application of their norms. Every Member country freely disposes of its territory and can increase it legally (transfer from Saarland to Germany by France in 1957, German unification in 1990) or lose it legally (with the consent of the entire community of the parent or predecessor country), or illegally, through unilateral secession. It is not a matter within the jurisdiction of the EU institutions, but rather discretional and individual to each Member country (except an external armed attack on territorial integrity), although the enlargement or contraction may consequences for the rest of the Member countries.


IT IS AN INTERNAL MATTER FOR EACH COUNTRY


The separatists deceitfully deduce that the EU does not prohibit secession. It is not their jurisdiction. Article 4.2 TEU shows in detail the EU's respect for the exclusive right of the country to guarantee its own territorial integrity and security. Therefore, no treaty has regulated or may regulate the modifications of the territory of the Member countries. It is an internal matter for each country. The Union is notified of the increase or loss of territory to take the consequences on board. And this there are.


Spain would have to go through the bitter pill of notifying those involved in the territorial and population loss that they would no longer be subject to EU law that Spain guarantees throughout the rest of its territory.


The loss of territory and its official ratification would not affect the membership of Spain in the EU or its international personality (principle of continuity of the country); it retains its international character and maintains its rights and obligations in the International Organisations of which it is a member. Apart from the historical and emotional tragedy, we will simply become a country with a little less territory and population.


Even if feathers fly, it will be a lightweight affair, and the effects on the whole of Spain in the EU institutional system are minimal: the loss of territory would not immediately require a modification of existing treaties and adaptations will be made such as to adapt the number of MEPs and advisers in the Economic and Social Committee and the Committee of the Regions. As far as the Council is concerned, the loss of population does not affect the percentage rule, as it is verified and automatically varies annually through a Council Decision. It is foreseeable that a contribution to the EIB's capital will be adjusted if any reform of the Treaties happens. For Spain, that would be all.


On the contrary, the new country -the splinter region- would have to decide on its international commitments and conform to the entry rules of each international organization, such as the EU, the UN, NATO, the WTO, and so on. It would have to start negotiating hundreds of commercial, air, and other treaties. However, it would be their own sovereign decision as a country, so it would be a case of complying with the conditions, filling in the request forms then wait and wait...


THE SPLINTER PART IS NOT A NEW COUNTRY


The new country does not inherit the rights of its predecessor. The territory in question cannot want to be independent but at the same time still claim shelter under the tutelage of the country from which you have just been separated. The new country will decide its international rights and obligations its without its hands being tied. The rule applicable in general to the new country is that of the mobility of treaties: the treaties signed by the predecessor or parent country cease to apply in the territory of the new one.


An independence decision means "a new country", distinct and separate from the one that is broken, with new rights and obligations that will depend on its sovereign decision and will not be determined by the country from which they are split. 


Access to countryhood means that they have to decide their new internal rules for themselves, as well as their international plans, although these are in negotiation with third parties.


What is abundantly clear is that if the part of the territory that is split becomes a new country (it does not join another pre-existing Member country), that is, it is a third country, outside the EU. This has already been confirmed by three Commission presidencies (Prodi, Barroso and Juncker) in relation to the pretensions of Basque and Catalonian secessionist parties.


Access to independence does not occur without consequences in the international and European order: the new country has a new own subjectivity, new rights and obligations and takes a name that identifies and individualizes them internationally.


If secession were to be consummated, Catalonia would be a new country, a country different from Spain, and could not preserve the benefits of life in common either in the international order or in the European.


They cannot claim that they were lied to, or are a post-truth victim, or blame demagogic manipulation, when they are expelled from the UN, the ILO, the IMF, the EU, the Council of Europe, and so on. It would be grotesque if a territory that has split off on its own, unilaterally, have a right to a separate seat and act autonomously without requesting admission to the international organization in question. International life still retains procedures of respect for established rules, the respect for the rule of international law.

In this way, if a territory become a new country, being left outside the EU cannot be qualified as an expulsion. Those who never gained entry simply are not expelled for wanting to be a new country: they never were in the first place. There are no vested rights for the splinter territory politicians or for its populace -they would no longer be neither Spanish nor EU citizans- once they leave the bosom of an EU Member country.


THERE WOULD BE BORDERS AND CONTROLS


An independent Catalonia would not be obliged to apply the EU rules. There would be borders and controls erected in all the entry and exit routes (between Spain, "Catalonia" and France). They would constitute a separate market with the capacity to apply tariffs at their borders (with Spain and France), quotas for trade, and so on. It would be outside the unified economic area.


From the verification of independence it would be outside the institutions, the customs union, the internal market, trade policy and the implementation of trade agreements, outside internal policies and its structural and cohesion funds, outside of the Economic and Monetary Union; of the entire integration system.


Being an EU citizen is not an automatic lifetime right; it is acquired and automatically lost through the acquisition and loss of the nationality of a member country. 


If Spanish citizenship is lost, EU citizenship and its rights of free movement and residence rights are also lost ipso facto; Catalonians living in the EU would become foreigners. Although, there are no pre-established rules and discretionary action would taken in each case of loss of territory, the usual practice indicates that Spaniards residing in Catalonia would lose, in principle, Spanish nationality and automatically acquire the new nationality. There is no double nationality recognized unilaterally (another of the lies of the "Procès"). However, residents in the new country can renounce Catalonian and retain the Spanish nationality, although they would become foreigners in their own land. The Art. 11.2 CE which deals with the case of loss of territory without dual nationality agreement would be adapted in such an exceptional situation. 


Dual nationality would not be possible, since a treaty between the two countries would be required to do so. and that... I wouldn't count on it.


The new country constitutes a market outside the EU. There will be no free circulation of people or services, nor the right of establishment of people or companies or companies. The companies knew that being able to continue in the European context was a deception, and therefore in 2017 about 4,500 of them left, all of them leading companies. It is evident that they deceived only those that wanted themselves to be deceived.


Their goods and services would be automatically non-EU and would have to pay EU tariffs to sell them in Spain and the rest of the EU. Quotas and restrictions on their exports to the EU would be imposed. These non-Catalonian countries would also have the capacity to impose tariffs, trade quotas, make trade agreements with third countries, access to their ports, use of airspace, and so on. "Catalonia" could impose taxes on commercial transactions (goods and services): approve their own taxes and fees and modify them at their convenience without abiding by the limits of European tax directives.


OUTSIDE THE ECONOMIC AND MONETARY UNION


The public at large and "Catalonian" companies would lose lose support for agriculture, livestock, forests, culture, regions, R + D + i, the environment, for the training and reconversion of workers and industries, for economic, social and territorial cohesion... They will not participate in the Erasmus system and other education programmes (except for Erasmus Mundus, that of third countries...).


Monedas de euro


As it will take years to conclude commercial and economic agreements between "Catalonia" and the EU, it will not have any preferential treatment (although for such agreements an absolute majority is enough, so there is no room for vetoes, except in association or with a view to accession, but yes, it will require unanimity, Article 218 TFEU).


And it would be outside the Economic and Monetary Union itself. It is true that de facto they would be able to use the Euro in the same way that the dollar is used in different countries of the world (of course, in countries with unreliable autochthonous currencies). Even in America, there are countries that unilaterally declared a foreign currency as their official currency (dollarization of Ecuador, El Salvador, and so on) by giving their monetary sovereignty to a foreign country without a counterpart (neither political nor economic as the seigniorage -the benefit of the difference between the face value of the currency and the material value of the production of the coin or note-).


If "Catalonia" decided on "eurization" by itself, the Catalonian banks and the hypothetical Catalonian country "every morning" would have to buy enough convertible currencies (dollar, Swiss franc...) or gold.


The new country would block accounts for some time and it will take over the existing accounts in Euros and other foreign currencies ("corralito") to have convertible currency and in turn convert them into local junk currency. Therefore, in October 2017, families withdrew nearly 40,000 million Euros from Catalonia and moved it to Aragón and other nearby Spanish regions.


They will have two more options in monetary matters: the usual thing is that a country -obviously, sovereign and independent- creates its own currency and is subject to international quotation based on its solvency, even if it collapses or devalues at discretion, particularly in the initial stage of the junk currency. The other option is to enter into an agreement with the EU -although a previous necessary condition is that it has to be a recognized country- to be able to adopt the Euro as the official currency (like Andorra, Monaco, Vatican, San Marino, Article 219.3 TFEU). However, in this last hypothesis, Catalonia will not participate in the institutional system of the Euro (European Central Bank, ESCB) nor the Eurogroup nor seigniorage of paper currency and will be limited to cash currency.


THERE IS NO OBLIGATION TO RECOGNIZE A NEW COUNTRY


If the new country wishes to join the EU, it has to follow the entry rules of Art. 49 TUE (it is not a "re-entry" as it has been manipulated by the independence movement) that require voting unanimously if the EU countries, including Spain, accept that the candidacy (another I wouldn't count on it...); and then there are more than a thousand voting items always needing to be unanimous during the negotiations.


It is implicit that the third country requesting entry into the EU has to be formally recognized as a country by all the Member countries. The decision to recognize is a discretionary unilateral act of each Member country. No EU nor International Law rules requires recognition of a new country. Of course, a single country that does not recognize the applicant will cause it not to be admitted, even as a candidate country.


In a nutshell, the Member countries (governments and national parliaments) has to decide unanimously to take the request for accession into consideration, to conclude the negotiations and further, to unanimously ratify the Accession Treaty. 


There are no automatic mechanisms for entry and each country, its Government, its Parliament, decides at its own discretion with full freedom and without judicial responsibility.


It is a political act par excellence. Given the discretional nature of the positions of each country, and the absence of an automatic process as regards entry requirements, there is no legal or political basis to deceive the Catalonians again by saying that the "secession" territory already complies with the acquis communautaire and that their adhesion would be immediate and automatic after independence; or that their single unilateral decision would suffice: the right to decide (of their politicians) would have include them imposing their will on nearly thirty countries.


There will be no "red carpet" for those who provoke such a crisis with their nationalism, an uncontrolled cancer for Europeanism.

Previous
Next

THE ECONOMY JOURNAL

Ronda Universitat 12, 7ª Planta -08007 Barcelona
Tlf (34) 93 301 05 12
Inscrita en el Registro Mercantil de Barcelona al tomo 39.480,
folio 12, hoja B347324, Inscripcion 1

THE ECONOMY JOURNAL ALL RIGHTS RESERVED

THE ECONOMY JOURNAL

THE ECONOMY JOURNAL ALL RIGHTS RESERVED

Aviso legal - Cookies