On Brexit and Secession(S)
C Closa, C Margiotta and G Martinico (eds), Between Democracy and Law: The Amorality of Secession (Abingdon, Oxford, Routledge, 2019) 195-212
22 Pages Posted: 15 Oct 2019
Date Written: August 6, 2019
UK’s withdrawal from the EU will mark the first time that a Member State of the European Union decides to put an abrupt end to the federalist ’sonderweg’ of ‘an ever closer union’. Although the EU is not a State, Brexit and especially the Article 50 TEU procedure resemble the secessionist processes around the globe. Brexit might also become a catalyst for the secession of the two UK constituent nations that voted to remain: Scotland and Northern Ireland. Finally, and with regard to the Northern Ireland the ’backstop option’ provided by the Protocol of Ireland/Northern Ireland of the UK Withdrawal Agreement has been portrayed as a threat to the UK constitutional and territorial integrity and as an EU attempt to ‘annex’ that region.
The present paper aims at understanding the interrelationship between Brexit and secession by setting this process into its broader comparative context. First, it compares Art 50 TEU with other constitutional provisions that allow for secession. Second, it explains how Brexit could trigger the dissolution of the United Kingdom of Great Britain and Northern Ireland and the reintegration of Scotland and Northern Ireland to the EU by focusing and comparing the relevant devolution acts and the EU legislative framework. Third, it discusses why a solution to the 'Irish border’ conundrum that would entail a much closer relationship of this region with the EU than the rest of the UK does not threaten the UK constitutional integrity. This becomes clearer if the ‘backstop’ is set in the broader context of territorial differentiation within the EU constitutional order of States. In that sense, it should be seen as a pragmatic solution that protects the fragile balance struck by the Good Friday Agreement.
By setting Brexit into its broader comparative context the paper manages to shed light to the secessionist dimension of the UK’s withdrawal from the EU and as such offer a new angle to this process that will reshape the UK constitutional order for the years to come.
Keywords: comparative constitutional law, EU law, secession, Scotland, Northern Ireland, Backstop
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