17 March 2022
Tony Czarnecki, Sustensis
Although the European Federation is formally not on the EU agenda yet, turbulent events related to the Ukrainian war have accelerated many processes in the EU, such as common defence policy and turning off the tap on the Russian oil and gas pipelines. The Ukrainian war has also triggered application of that country for a full EU membership alongside Georgia and Moldova. These external pressures coincide with the internal process of outlining the way forward for the EU. On 9th May, the Future of Europe Conference, in which ¼ of the participants are randomly selected EU citizens, will make final recommendations, which almost certainly will require constitutional changes. One of the recommendations is the Federal Alliance of European Federalist’s call for the EU to federate.
Since the very term “federation” has not been raised by the EU Council because it’s a political tabu, the form of such a federation has not been discussed either. However, if that process is to be significantly sped up in the current circumstances, it is almost certain that the future European Federation has to be a shallow one, the so-called minimal state. Building the Federation on the current centralized model would face a stiff opposition, leaving some members behind.
But if we accept that the future Federation is to be a minimal state government then what would be unclear is the accepted level of regional self-governance within the current nation-states. This subject was discussed in the 1990’ during the negotiations of the Maastricht Treaty and then completely disappeared from the EU’s political agenda. At that time three options for the European integration were discussed: ‘Europe of Nations’ favoured earlier by the French President de Gaulle, ‘a federated Super-State’ largely in line with the current EU Commission’s prerogatives, and a deeply decentralised model of ‘Europe of Regions’.
The war in Ukraine with its unravelling brutality may reignite the question of how such a horrible conflict might have been avoided. The Minsk agreement failed dismally for several reasons. First of all, as it has now become clear, the German position of trying not to alienate Russia too much because of its dependence on the Russian oil and gas, meant that Chancellor Merkel became a hostage to President Putin’s demands.
Secondly, as we also now learn, Russia’s real objective was not just to legalize the status of the annexed Lugansk and Donetsk regions but to subjugate the whole Ukraine to Russia. Putin needed that to realize his outrageous idea of re-creating the Great, Tsarist Russia as a kind of a pan-Slavic empire. But equally important for him is to control Ukraine so that it does not become an example for Russians that it is possible to overthrow an authoritarian regime and create a true democratic system.
But President Zelensky has also made a serious mistake by insisting that the breakaway regions must first be back under a full Ukrainian control. Maximizing that objective helped President Putin to show that it was President Zelensky who would not accept any compromise. Had he been more flexible, he would have gained some time needed for the Ukraine to become a member of the EU and thus sealing the positive future for the country, even if it may have lost the two regions.
However, he should not be blamed for this kind of thinking, prevalent in all democratic countries. Most governments and their legal systems consider the nations within the existing borders bound to live together forever. This is often against such nations’ preferred choice of being an independent country or having a significant autonomy. The best example is the Catalonia’s referendum in 2017.
Just to remind you what happened then. On 1st October 2017 the government of Catalonia carried out a referendum on independence that had not been previously agreed with the Spanish central government. Did the Catalans have the right to carry out such a referendum without the consent of the Spanish government?
The long-running dispute goes back to the brutal years under Franco, whose dictatorial regime repressed Catalonia’s earlier limited autonomy. It wasn’t until four years after his death in 1979 that the region gained full autonomy. In 2006, the Spanish government backed Catalonia’s call for greater powers granting it a “nation” status and financial control. But four years later that status was rescinded by the Constitutional Court, which ruled that while Catalan is a “nationality,” Catalonia is not a nation itself.
It is that which has probably sparked off Catalonia’s campaign to break away from Spain. The independence movement has been gaining momentum since 2010. In that period, the Catalan Parliament and the Catalan government have formally requested an independence referendum nineteen times. Madrid has argued that such a vote would be illegal under the current Spanish law and encouraged the Catalan parties to reform the Spanish Constitution. However, a difficult formal process of reforming the Constitution and the outright opposition of the two main Spanish parties to any concessions to Catalonia, made it impossible. The sheer arithmetic says it all: Catalonia elects only 47 out of 350 deputies to the Spanish parliament.
Now, looking at the matter again, do Catalans have a legal right to conduct such a referendum? The same question may be asked when considering the war in the Ukraine. Although the forceful way in which the two Ukrainian regions of Lugansk and Donetsk have separated from the rest of the Ukraine was unacceptable, in principle both the Ukrainian and the Spanish governments used the same arguments and did not accept the referenda as legally binding. It seems that from a legal point of view, Catalonia did not have the right to conduct such a referendum, nor had the two Ukrainian regions.
However, not having the legal right does not close the problem. If Catalans do not have a legal right to organize such a referendum on the region’s independence, do they have a moral right not only to carry out such a referendum but to become an independent state? In my view, they definitely have such a right and I would put forward these arguments:
- The first one is the so-called Natural law (“lex naturalis”). It asserts that “certain rights are inherent by virtue of human nature. The law of nature is implied to be universal, existing independently of the legal system of a given state, political order, legislature or society at large. The best example of applying natural law to declaring independence is the Declaration of Independence of the United States, which says that “…it has become necessary for the people of the United States to assume ‘the separate and equal station to which the Laws of Nature and of Nature’s God entitle them“
- The second one is individual freedom, indirectly derived from Natural Law, practiced in ancient Rome as “habeas corpus” – “you shall have the body”, referred in Magna Carta – meaning nobody can be prosecuted without a fair trial in the court. That has ultimately become a common law in the UK. Individual freedom means among others a freedom of unrestricted travel. That natural law has been frequently violated in legal system of dictatorships. How, for example, could an individual living in the Soviet Union, or in Nazi Germany, leave freely the country at any time? They could not! This is why such a Natural Law has been directly applied to refugees and ‘freedom fighters’ by the European Human Rights Court. In the European Convention on Human Rights, we have among others, articles on the rights to education and free elections, derived from ‘natural law’. Therefore, regions, as communities, have the same ‘natural laws’, which protect their rights to self-governance (or ‘freedoms’) as those that protect individuals.
- The third one is the Right to Secede, an argument frequently used by international lawyers. It describes two types of rights to secede: Primary Right and Remedial Right. Primary Right asserts that certain groups, like nations, have the right to secede in order to have their own state. Remedial Right is a unilateral right to secede, which a group is entitled to on the grounds of injustices they may have endured from the state they are part of. Here are some examples of application of the Remedial Right:
- Former colonies were considered as having a legitimate claim to break away from the imperial power.
- Secession is justified when it is simply the taking back of the wrongly taken territory (the most recent cases are the Baltic States: Estonia, Latvia and Lithuania.
- Secession is legitimate after persistent, large-scale violations of basic human rights (e.g., Palestine, Kosovo or Chechnya).
That was exactly the justification used for creating the United States. At that time, the fulfilment of such will of the people could only be implemented through a war. The last time we had it in Europe was the Balkan war in 1990’. Sadly, that was not the last war in Europe. The Ukrainian war may well exceed the damages to the infrastructure and the number of people killed (including the Russians) in the Balkans.
Incidentally, both the Balkan war (especially Kosovo and Bosnia Herzegovina) and the war in the Ukraine have almost identical underlying cause – the need to reshape artificial borders, more in line with the current percentage of nationalities living in a given region. To live in almost permanent peace, we must be able to let the regions, who want to become independent states, do it peacefully, on their own accord and following new international legal framework, which unfortunately we do not have yet.
In the meantime, the moral rights based on lex naturalis or the right to secede should be sufficient for Catalonia and other large minorities anywhere in the world to conduct a referendum for independence whenever they want because of those principles. The rights for declaring independence must rest with the community of that region, irrespective of whether it is a single nation based on history, tradition and culture or a large region of common interests.
These rights have been violated not only by the Spanish government in October 2017 but just a few days earlier, on 29 September 2017, in the Kurdish part of Iraq. In that referendum 92% of the voters supported the creation of a separate state. But to this date Kurdistan is not an independent state.
But let us not forget that Catalonia, unlike Kurdistan, or the Ukraine, is a region within the European Union. The respect for equal rights of national minorities is one of the European Union’s core values. It is included in the EU’s founding treaty and into the charter of fundamental rights. However, what is missing there is a well-defined legal process, which would start with the right to declare an independence referendum. It also misses certain details, such as what autonomy, federation or outright independence means, and what constitutes a community, which has such a right to self-determination. On one hand the ‘ peoples’ of Europe, have the right to self-determination and on the other hand most of the state’s constitutions make a secession of a region practically impossible.
As things stand right now, the EU is completely unprepared for a potential wave of referenda in other regions. It was best expressed by the former EU Commission Jean-Claude Juncker who said just after the Catalan referendum result that “if the EU accepted the results of that referendum, it might soon have to deal with 95 regions in Europe”. That was a clear departure from his earlier statement before the referendum, when he said the EU would accept the result: “I’d respect a Catalan ‘Yes’ vote”.
This is another example of how EU operates. In most cases it does not anticipate events, preparing itself for an eventual risk, like in the migration crisis. It follows the same attitude towards regional self-determination. To avoid serious problems in the future, the EU should openly address and acknowledge that the current Lisbon Treaty is inadequate to deal with such crises and this problem will be rectified at the earliest opportunity. It might consider the following steps:
- Announce an interim measure that no secession in any EU country will be approved or mediated by the EU country until a new European Union Constitution is created
- Create a new EU constitution, which should fundamentally change the relationship between the EU and its members. EU needs to move from the current Confederation of sovereign states into European Federation of regions (nations). Such a move would of course be momentous for Europe, but in my view, it is unavoidable, if EU wants to survive as a single entity. It would immediately solve a lot of potentially explosive conflicts in the EU, such as Gibraltar or Padania. It would also enable a peaceful and natural change of borders when nations are spread across two countries like the Catalans and Basques in northern Spain and southern France or Trentino-Alto Adige/South Tyrol in Italy/Austria.
- Guarantee in the article of membership in the new Constitution the right of any EU nation to secede from its current state and immediately become a member of the European Federation (EF) and/or secede from the European Federation altogether. Any such process would be arranged under the auspices of the EF government, provided a region follows a specific process that leads to independence. For example, there should be a minimum period of, say 2 years for completing the secession. In this context, the separation of Slovakia and the Czech Republic from Czechoslovakia on 1 January 1993 is an exemplary way to execute such a right to secession and full independence in the most harmonious way.
A similar amendment should be made in the United Nations Charter, creating a new UN Agency to monitor the process ensuring that the decision was fair and made under no external pressure.
Applying such rules of regional self-determination in the Ukraine might be one of the solutions delivering a permanent peace with the neighbouring regions. On the other hand, if President Putin is still in power, it would not resolve hundreds of similar potential conflicts within Russia. So, a true democracy must come first before regional autonomy or independence may be freely chosen by the national minorities.