Treaty scission: the solution to the EU membership conundrum


By Mark McNaught
Recent comments by the vice President of the EU commission Joaquim Almunia suggest that if Catalonia votes for independence in 2014, they would be expelled from the EU. The Catalan government would then have to reapply for membership to be unanimously approved by all member states, thereby granting a veto to the Spanish government, who has promised to use every means at its disposal to make life hell for Catalonia if they vote for independence.

What Mr. Almunia did not specify is exactly what it would mean to expel Catalonia from the EU, stripping EU citizens of their guaranteed rights for exercising their universal right to self-determination under the UN charter.

While there is no mechanism in the EU treaties for expelling states which become independent from current member states, it bears enumerating several logical consequences which would follow.

  • All non-Spanish EU citizens living in Catalonia would be repatriated to their home country, including the UK.
  • If Spanish citizens living in Catalonia refused to become Catalan citizens, they could be forced to move to Spain.
  • No EU trade treaties would apply to Catalonia, causing chaos for companies.
  • Catalonia would be forced to adopt its own currency, thus making Catalonia – EU trade more chaotic and expensive.
  • Catalonia and Spain would have to sign bilateral extradition treaties to catch fugitives in the other state.
  • Passport controls would have to be set up between Catalonia, Andorra, Spain, and France.

Pro-independence activists in Flanders have been temporarily dissuaded from pursuing self-determination because they were told that they would have to reapply for EU membership if they vote to separate from Wallonia. So, if Flanders chooses independence, Brussels, home to the European Parliament, would be ejected from the EU.

In the Scottish independence debate, EU membership has been used as a cudgel against independence, even though Scotland is more likely to be forced out of the EU if they remain in the UK.

In all three cases, the EU has demonstrated itself institutionally incapable of providing a clear answer on membership to legitimate independence movements. Off-hand comments by various EU politicians are held up by an unquestioning media as proof that newly independent states would be automatically expelled, even though there is simply no mechanism to do so.

The EU also has no mechanism to seamlessly integrate newly independent states, no longer part of member states, whose citizens are already EU citizens. They need to adopt one, if the EU is to maintain its legitimacy and survive over the long term.

East Germany became a member of the EU overnight in 1990 upon reunification with West Germany. How can anyone argue that the EU can instantaneously integrate a former communist dictatorship, but cannot do the same for new states who already conform to treaties, whose citizens are already EU citizens? What is the point of expelling countries for exercising fundamental human rights?

The EU is suffering enough chaos and dysfunction, without it becoming the battleground over independence movements. It already is to some degree, and it needs to avoid this like the plague. Its very legitimacy is at stake. 

A way out of this conundrum is ‘treaty scission’. While not yet an official doctrine, there is nothing that prevents it from becoming so.

It begins with the assumption that no EU citizen should be stripped of citizenship, and that no current member state should be able to prevent legitimate independence aspirations. Why should Spain be able to block Scotland from becoming an EU member, just because they don’t want to set a precedent for Catalonia?

The EU should have the capacity to simply divide the treaties between the member states and newly independent states, and integrate them as new members. After all, the new states already conform to all the convergence criteria, and its population are already EU citizens.

The reality is that they do have the capacity to enact such a policy, they just need to do it. If they don’t, there is a real danger that the EU could be ripped apart.

Imagine Catalonia voting for independence, then the EU actually stripping Catalans of their citizenship and rights. Imagine Flanders becoming independent, MEP’s needing a visa to enter Brussels, and the EU parliament no longer being within EU territory. Imagine Scotland voting for independence, then being expelled for seeking self-governance.

Treaty scission is the simplest way to facilitate self-determination, and assure that the EU is not used to block legitimate independence movements and deny human rights. Brussels needs to figure out a way to adopt this policy, before they get expelled from the EU.