784 Zenbakia 2024-06-18 / 2024-09-16


A proposal for the regulation of the right to self-determination in the European Union


Edinburgh Law School

On the 31st January 2024, a team of researchers of which I am a member presented a proposal for an EU Regulation on the right to self-determination in the European Parliament, at a meeting attended by the Presidents of the Basque Country, Catalonia, and of the utive Council of Corsica. This proposal was prepared at the of the members of the European Parliament’s Self-determination Caucus, and constitutes the most recent step in a process of collaboration that began four years ago, under the umbrella of Eusko Ikaskuntza and the Institut d’Estudis Catalans, with the project on the Bases for the Resolution of Territorial Sovereignty Conflicts in the European Framework. As part of this process we have also benefitted from the insights and expertise of many experts and civil society organisations working in this field. The aim of this article is to set out the reasons why EU legislation is currently necessary on this issue, our approach, and the specific content of our proposals.

Why should the EU legislate to regulate the right to self-determination within the Union?

The ongoing process of European integration has transformed the EU from an international to a constitutional order, founded on a series of fundamental values such as democracy, the protection of fundamental rights and the rule of law. However, within the EU’s constitutional framework there is a currently a situation of uncertainty regarding the EU’s legal response to situations where a sub-state community aims to democratically break away from its host state and remain a member of the Union. It is precisely the rule of law, and in particular its requirements of clarity, precision and foreseeability, which require EU law to provide a clear and predetermined legal answer to these situations, and this legal answer must be in line with the EU’s fundamental values and principles. Furthermore, a distinctive feature of the EU as a legal order is the establishment of European citizenship, and the conferral on all EU citizens of an extensive series of rights derived directly from EU law and the Treaties. Therefore, European citizens immersed in or affected by a process of democratic self-determination within one (or several) member state(s) must be able to rely on EU law for the exercise and full protection of their citizenship rights and freedoms.

Recent developments following the United Kingdom’s decision to withdraw from the European Union have highlighted the significant consequences of the loss of European citizenship for the nationals of that state, and the severe impact of the termination of the enjoyment of EU citizenship rights for other EU citizens in the existing state’s territory. In the current situation of legal uncertainty, it is the citizens of the self-determining entity that at risk of losing their citizenship rights as a result of the sub-state community becoming a full state, in contrast with citizens the other state entity which may be viewed as the continuing state. Therefore, our proposal is directed at providing legal certainty in these cases and ensuring the equal protection of citizenship rights for all EU citizens involved or affected by the self-determination process until the necessary reforms are in place to implement the outcome.

How can the EU legislate on the right to self-determination within the current framework of the Treaties?

The starting point for the EU to develop its legal response to consensual and democratic self-determination processes should be that the right to democratic self-determination of sub-state communities in Europe is fully compatible with the EU Treaties and EU law, insofar as the process in each case complies with EU’s principles and values. Within the current EU constitutional framework, the response to a democratic process of self-determination and the regulation of the particular conditions for its exercise is, in first instance, an internal constitutional matter for the member state(s) concerned. However, it is up to the EU to legislate for the EU’s own response to sub-state self-determination processes within the Union, and in particular, for the recognition and accommodation of those processes that comply with the EU’s principles and values. Furthermore, in order to determine if a sub-state self-determination process complies with the EU’s values, it can set out a series of conditions that these processes have to meet for them to be recognised by the Union. To complement the above, and in recognition of the European dimension of these processes, it can provide for the EU’s intervention in to ensure the protection of EU values and of the rights of EU citizens. This approach provides the basis for our proposal, as I set out in more detail below.

Firstly, the proposal establishes a series of conditions that will enable the EU institutions to determine if a self-determination process that has taken place in a member state complies with the principles and values of the Union, and should therefore be recognised by the EU and its member states. In this sense, it provides a framework of guarantees based on a series of principles that can be found in the constitutional traditions and international obligations common to all member states, and in the EU’s own legal framework. On this basis, the proposal develops a series of conditions of legitimacy in relation to the three three fundamental moments of the self-determination process: conditions of legitimacy of the claim to sovereignty, conditions of legitimacy of the decision, and conditions of legitimacy and guarantees for the implementation of its outcome. In this way, it does not establish a single model of European self-determination process, but rather leaves scope for these conditions to be met in different ways, in recognition of the diversity of constitutional norms and traditions of the member states.

Secondly, the proposal then provides for the consequences of a democratic exercise of self-determination that complies with the EU’s values and principles. Under the proposal, these processes entail an obligation for the European institutions and member states to recognise the legitimacy of the decision and to negotiate in good faith to give effect to it. To ensure continuity during this process, the EU institutions and member states have to agree on a provisional regime to regulate the transition period the notification and the final agreement on the EU membership of the new state entities, during which they will continue to be bound by Union law and all citizens involved in or affected by the process shall retain their citizenship rights. At the same time, the EU institutions and the member states have to begin negotiations on the necessary amendments to the law and Treaties. In this context, the proposal provides that the Union and the member states, all member states have a duty to assist the new state entity in fulfilling the requirements for accession and completing the different stages of the process of becoming a full member of the Union.

Finally, the proposal regulates the possible intervention of the EU institutions in this context, to ensure that EU values and citizenship rights are protected at all times. From the moment the to initiate a process of sub-state self-determination is legitimately expressed, it provides that the European institutions will become neutral observers of the development of the process. In the case of a conflict the state and the sub-state community regarding the self-determination process, the European institutions may contribute, within their respective competences, to facilitating its resolution in accordance with European laws, values and principles, including the possibility of articulating a mediation mechanism. In the event of a clear risk of a serious breach of EU values by the member state in relation to the self-determination process, the proposal specifies clearly the EU institutions will initiate the procedure provided in Article 7 of the Treaty on European Union precisely for such cases, and which enables measures to be adopted against the state. If the clear risk of a serious breach of EU values is by the sub-state community, the EU institutions will provide their support to the member states in the implementation of internal mechanisms and procedures.

Next steps for the proposal

The regulation of the right to self-determination in the European Union is clearly a sensitive issue for many member states. We are therefore aware that securing any legal change in this sense will be complicated and necessarily take time. However, and as a first step, we hope that our proposal can serve to open an informed and nuanced debate the EU institutions and member states on this issue, which can contribute to the normalisation of these democratic and consensual processes of self-determination by sub-state communities within the Union, and to the acceptance of their compatibility with the EU’s values and broader integration process. 

Eusko Jaurlaritza