—J. H. H. Weiler, Editorial Director, I·CON; President and Secretary General, European University Institute
The following Editorial was written before the voting in Scotland took place. It expresses a negative view regarding the prospects of Scottish independence written from both a Euro-prudential perspective and a more general normative one. There is no place for gloating. The peoples of the United Kingdom in general and the people of Scotland more specifically, have given, not for the first time, the world a lesson in sober constitutional democracy and mature political culture.
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As we go to press the outcome of the Scottish referendum on independence is unknown. At some levels it is an easier and ‘cleaner’ case than that of Catalonia: the United Kingdom, in a mature political decision, has allowed this referendum, thus removing any objection from a British constitutional perspective and public international law.
The people of Scotland, many of them at least, resent ‘outside interference’ in what they consider their internal business – the exercise of a right to self-determination. It is their business – but this does not mean that outsiders cannot, or should not, have a view and express that view, driven by both prudential and normative considerations.
The issue of greatest concern outside Scotland and the United Kingdom concerns the future, or otherwise, of an independent Scotland within the European Union. Membership would not be automatic. I find the argument for automaticity based on the fact that the people of Scotland are citizens of the Union unpersuasive. Citizenship of the Union is predicated on being nationals of a Member State. And if Scotland becomes independent, her people, by their own sovereign decision, would no longer be nationals of a Member State. But there should be no legal impediment for Scotland to become a Member State if she satisfies the condition for membership, one of which is a unanimous decision of all Member States. On the technical side it should be a relatively easy accession, since the European legal acquis is part of the political and legal fabric of Scotland. The adjustments necessary will be, for the most part, of a technical nature. It is said that for Scotland to accede she would first have to be an independent state i.e. forcing her into an interregnum of non-membership. That is why some lawyers suggest Scottish “accession” through treaty amendment rather than by accession. I think treaty amendment is a circuitous way, and normal accession is the correct route; but I do not think a real interregnum would be necessary. The would-be independent Scotland could negotiate her accession in her current status, go through all the European constitutional hoops save the final signature of the act of accession. That can be planned to take place, literally on the very same day that Scotland becomes formally an independent state. One would first complete the last formal act of independence – some piece of paper would be signed by, presumably, the British Monarch and the Scottish authorities and immediately the act of accession could be signed. Scotland would be a non-Member State for the time it takes to sign those two pieces of paper. This is of course shorthand for a fairly complex procedure, but it could be done.
The issue therefore is not legal but political. Should the Member States of the European Union embrace an independent Scotland? In an Editorial in the European Journal of International Law some time ago I took a dim view of plans for Catalan independence[i] – which earned me the ire of many. I do not think that any editorial I have written provoked so much hate mail. I take a similarly dim view of the Scotland case. Make no mistake: I harbor great affection for Scotland and its people. My father admired them, as he did any small people living in the shadow of a giant and yet managing to preserve a keen and rich sense of distinct national identity.
Why then this dim view? One consideration, not trivial, is prudential: I am convinced that Scottish independence coupled with simultaneous, or close to simultaneous, membership of the Union will provoke a domino effect among many nations and regions in Europe. Independence pure and simple is in many cases threatening and unattractive. There is a long list of candidates, in Spain, France, Italy and elsewhere, who would be emboldened by the Scottish example. Feeding this frenzy for secession and independence in Europe is the premise that all these new states will somehow find a safe haven as Member States of the European Union. Absent that assumption, appetite for independence would be significantly muted, the rough seas of “going it alone” far more threatening.
I do not believe that given the decisional structure of the Union, even on the most optimistic ideas for reform, it would be helpful for Europe to have a growing number of Member States. I do not think I need explain this more to the readers of I.CON.
But the main consideration is not prudential. It is simply ethically demoralizing to see the likes of Scotland and Catalonia reverting to an early 20th-century post-World War I mentality, when the notion that a single state could encompass more than one nationality seemed impossible – hence the special treaties on minorities which abounded in the break-up of the Ottoman and the Austro-Hungarian Empires. These arrangements were well intentioned but lacking in political imagination and eventually, let us not hide the ugly facts, fed and led to that poisonous logic of national purity and ethnic cleansing. Make no mistake: I am not suggesting for one minute that anyone in Scotland or Catalonia is an ethnic cleanser. But I am suggesting that the “go it alone” mentality is associated with that kind of mindset.
More than any other country with which I am familiar the current constitutional arrangements in the UK allow a full vindication of a Scottish cultural and distinct political identity. So what is the case for independence other than in my view a seriously misdirected social and economic egoism, cultural and national hubris and the naked ambition of local politicians?
In a paradoxical way I have more respect for the hardline Scottish nationalists who would favor independence come what may. But most of the debate in Scotland is utilitarian: Will we better off, especially economically? More employment, yes or no? Better social network, yes or no? Et cetera et cetera.
This runs diametrically contrary to the historical ethos of European integration. The commanding moral authority of the Founding Fathers of European integration – Schumann, Adenauer, de Gaspari and Jean Monnet himself – was a result of their rootedness in the Christian ethic of forgiveness coupled with an enlightened political wisdom which understood that it is better to look forward to a future of reconciliation and integration rather than wallow in past historical rights and identity.
The European Union is struggling today with a decisional structure that is already overloaded with 28 Member States, but more importantly with a socio-political reality that makes it difficult to persuade a Dutch or a Finn or a German that they have a human and economic stake in the welfare of a Greek or a Portuguese or a Spaniard. Why would there be an interest to take into the Union a polity such as an independent Scotland predicated on such a regressive and outmoded nationalist ethos, which apparently cannot stomach the discipline of loyalty and solidarity that one would expect it would owe to its fellow citizens in the UK? The very demand for independence from the UK, an independence from the need to work out political, social, cultural and economic differences within the UK, independence from the need to work through and transcend whatever gripes there might be, disqualifies morally and politically Scotland and the likes as future Member States of the European Union.
Europe should not seem as a Nirvana for that form of irredentist Euro-tribalism which contradicts the deep values and needs of the Union. Thus, the assumption of membership in the Union should be decisively squelched by the countries from which secession is threatened and if their leaders, for internal political reasons, lack the courage so to say, by other Member States of the Union, France in the lead.
It would be hugely ironic if the prospect of membership in the Union ended up providing an incentive for an ethos of political disintegration. There really is a fundamental difference to the welcoming into the Union of a Spain or a Portugal or a Greece or the former Communist countries emerging from ugly and repressive dictatorships and a Scotland, which is part of a functioning democracy that recognizes in word and deed the distinctiveness and wide and deep autonomy of Scotland and its people. In seeking separation Scotland would be betraying the very ideals of solidarity and human integration for which Europe stands.
I hope that by the time this Editorial sees the light the people of Scotland will have rejected the seduction of separatism and tribalism. And if they do not – well, let us wish them, as I wished the Catalans, a Bon Voyage in their separatist destiny.
In this issue
This issue opens with a challenging article by Robert Alexy on formal principles in which he offers some thought-provoking replies to his critics. In the following article, Jan Komárek discusses the evolving role of national constitutional courts in the EU. Nicole Scicluna considers how the Eurozone crisis is transforming EU law and politics. Jeff King challenges the common assumption that judges in the United States show a distinct reticence towards socio-economic rights.
The issue continues with a Symposium entitled ‘The changing landscape of German constitutional theory’. In the first article, Christoph Möllers and Hannah Birkenkötter provide a reassessment of conceptual thinking for comparative constitutional law. In the following article, Michaela Hailbronner rejects – and provides an alternative to – the assumption that the German Constitutional Court’s strong protection of human rights can be understood as a reaction to the German Nazi past. Niels Petersen then considers the question whether constitutional courts, and the German Constitutional Court in particular, can provide a counterweight to political decisions that are primarily motivated by lobby interests. The symposium continues with an article by Emanuel V. Towfigh which discusses the interplay between empirical scholarship and doctrine in the German legal discourse. Finally, Oliver Lepsius argues that the distinction between practical and theoretical approaches in German legal scholarship does not give sufficient room for interdisciplinary research or policy considerations.
In our I.CON: Debate! section, David Bilchitz, and Xenophon Contiades and Alkmene Fotiadou, defend opposing positions regarding the question of whether the doctrine of proportionality can provide content to social rights.
The debate is followed by another installment in our Critical Review of Global Governance series, in which Jaclyn L. Neo examines the judicial intertwining of Islam with ethnic identity in Malaysia.
JHHW
[i] 23 EJIL (2012) 909, at 910.
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