Reflections & Research from a PhD Candidate in International Law
Category: European Union
Though an international organisation currently (as of 2015) comprised of 28 Member States, the European Union (‘EU’) has taken on certain supranational structures resembling the functions of a state. As such, in many regards it may be considered within the ambit of states, as well as independently as a treaty-organisation similar to NATO.
This time has come and gone, though it remains to be seen as to what constitutional changes will be implemented – change that will only come after the next UK General Election in May.
However, many of the questions posed by the Scottish referendum, in conjunction with events in Ukraine (Crimea and the Eastern Regions) and so-called Islamic State (Syria and Iraq), have created a significant dearth of opportunity for considering what may, for some, be a straightforward question: What is a State?
More specifically, it is likely to be the case that my PhD will examine the role that international legal theory plays in the creation of new states, juxtaposed against the looming backdrop of practical reality and pragmatic geopolitical policies. (Fun stuff, I know…)
Today has been carving out some supplementary chapter headings as a roadmap for my research. I hope to use this template to formulate the content of the PhD application itself, which would then be submitted to a number of institutions for consideration. The key elements in deciding which universities to apply to comes down to which faculties contain relevant experts on this topic, capable of ensuring that I keep to both the project path and within the relevance of international/constitutional law. That said, I do have a couple of institutions that are top of that list in my mind…
To elucidate on the central motivation behind the PhD, I offer the following thought. The experience of Québec and Scotland showed a certain acceptance that a particular domestic constitutional arrangement can be made whereby a sub-state territory may gain independence and attain statehood without violence or conflict. The main idea here would be that the parent state would immediately give legitimacy to the newly-emerged state should the constitutional order be satisfied. However peaceful and civilised that arrangement may be, international law would have had little to no input on whether the international community at large would recognise the legitimacy of the emergent state. The prevailing declaratory theory of statehood takes only into consideration that a state has (a) a permanent population; (b) a defined territory; (c) government; and (d) a capacity to enter into foreign relations. (These are collectively referred to as the ‘classical’ or ‘Montevideo‘ criteria of statehood.)
There exists a competing theory of statehood – the constitutive theory. To date, it has been rejected by various courts (including the International Court of Justice in The Hague). At its core, the attainment of statehood status depends on the international recognition of a particular state by other states. As recognition is primarily a political decision, not a legal one, criticism for this theory is understandable – erstwhile-legitimate states may be denied a ‘seat at the top table’ and all the privileges that are commensurate to being a primary state actor in the international arena.
However, suggesting that there is no legal defined process under which a sub-state territory may rely upon for guidance (for which the current theory does not make account) leaves open the process to both political perversion and systematic abuse. In essence, even having the goalposts moved still systematically retains the seed of hope; the absence of any international legal process effectively removes the goalposts altogether. And the absence of hope is antithetical to human condition. Hence, non-state groups and foreign interveners take advantage of this lacuna in the law to devastating effect: consider so-called Islamic State’s intent to establish a Middle Eastern state. It is arguable that they may, under the current declaratory theory, already fulfil the criteria for statehood. This is despite the illegality of their territorial seizure or brutal oppression of opposition. This was equally so for the Crimean peninsula in Ukraine.
And so, I hope to consider the experience and legal research surrounding this conundrum in law that may on paper prohibit illegality and remain ambiguous on state creation but cannot account for the factual reality that faces us today. It cannot be that such a fundamental basis of human society – the state – should remain as elusive as it currently stands.
It seems that the recent advances by UKIP and the perception of instability within the Conservative Party over membership in the EU and its effect on Westminster’s control over immigration is becoming a source of embarrassment for the United Kingdom. The EU as an institution (in this instance the final-month-as-Commission President José Manuel Barroso), as well as other EU Member States are becoming curiouser and curiouser as to the British position regarding the free movement of people. And what they have to say, in the absence of any firm proposals to them, is that attempts to arbitrarialy limit free movement are incompatible with the fundamental principles of the EU, and that Prime Minister David Cameron should not expect a positive reaction if we suggest that the UK could renegotiate an ‘opt-out’ (or ’emergency brake’ as has been reported) from this principle.
However, I am torn between two truths here.
Firstly, the speculation and posturing by the the majority partner of the UK coalition Government over renegotiation with Brussels has often been led by the Conservative’s fear of their own UKIP shadow. What’s worse is that, somehow (and I suspect this is due to an unfortunate-yet-chronic transient identity crisis) Labour has been drawn into entertaining similar Brexit referendum mania out of concern of losing support in the next General Election in May 2015. The Liberal Democrats have been the only party to firmly state their position that they would remain in the EU if installed into Downing Street next spring – though I’d hazard the supposition that DPM Nick Clegg thinks his chances of such success are as likely as that other dream he has where he solves the Middle East Crisis before lunch and then wins Euromillions. Bless.
If I have to reiterate UKIP’s position on the EU, you may wish to take the opportunity to check yourself for a pulse. (I’ll wait…)
Assuming you haven’t just realised your membership in the ‘choir invisible’, the only thing I’d speculate about UKIP is that, if flabbergastingly they were to become the UK Government, I doubt they would hold a referendum on Britain being in or out of Europe. They would likely unilaterally turn in Britain’s EU membership card and clear out our lockers in Brussels, and then have the cheek to suggest that we’d still like access to the common market facilities without financial or social obligations.
In addressing the matter at Chatham House, Barroso stated that while he dismisses the likelihood of an arbitrary exemption for the UK on immigration, that all the member states of the EU have concerns with regard to benefits-abuse related migration, and constructive dialogue on this issue would likely find sympathy throughout Europe.
And this is the central point of the first truth: The political narrative in the UK has become so distorted by the influence of UKIP from the fringe – and yes, they remain on the fringe even with an MP – that the ability of more reasonable political forces to pursue proper policies with more reasonable expectations of success. Put simply: UKIP has perverted UK-EU relations to the point where the Government and the Opposition must appear to negotiate by impossible ultimatums, rather than act responsibly within our international legal obligations and through consensus-building dialogue with our EU allies. This path will not deliver the reform that all Member States desire. It will not usher the UK into an EU-unfettered era of isolationist glory. It will not endear our British reputation to future international partners that our commitments are fleeting. Most importantly, it falsely provides the British public with the idea the only thing that comes from EU membership is inward migrants increasing pressure on a limited job market, contrary to the truth that the benefits of EU membership are legion and offset the price of that membership.
Furthermore, Farage was able to suggest that this is another instance of the EU dictating terms to the UK – a complete distortion of the reality that in fact the current obligations for Britain towards the EU are based on the UK’s sovereign decision to undertake those terms when it ratified the Lisbon Treaty in 2009. But that is what Farage has always been effective at: distortion bordering on outright lies. It was the cornerstone of the majority of his claims during the ill-conceived EU debate between himself and Nick Clegg. (Despite anybody who has even a passing understanding of the facts, Farage’s delivery and charisma managed to convince the general public that he came out on top in that instance.)
But what irks me about Barroso’s intervention is just that – it was a foreign intervention in what amounts to a domestic matter. But George! Isn’t it appropriate for the EU to respond?! No, or not yet at least. Barroso acknowledges that no proposal to limit immigration from Europe has been transmitted to Brussels from the UK. Legally speaking, the EU has not been invited by the UK to consider the matter as yet, let alone respond directly outside diplomatic channels. Speculating about the UK position when you are still (for another month) the EU Commission President is, at best, poorly timed. Had Barroso waited until after his impending retirement to make comment as a private citizen, the political fallout for the Conservatives would have been limited. But as Commission President, Barroso represents the institution of the EU in an official capacity.
So why, if Barroso’s statements are true, is it bad for an official from the EU to interfere with the UK?
Firstly, all the Member States of the EU remain sovereign, even if they have agreed to undertake obligations within the international organisation (‘IO’). The EU, as an international body, is constrained to operate within the principles of applicable international law – specifically in this instance the prevention of interference from an IO in matters that are essentially under domestic jurisdiction. At the United Nations, this principle is enshrined in Article 2(7) of the Charter. Furthermore, under diplomatic law, Article 41(1) of the Vienna Convention on Diplomatic Relations imposes upon persons enjoying diplomatic privileges “a duty not to interfere in the internal affairs of [the British] State”. References to customary diplomatic privileges appear in the Protocol on the Privileges and Immunities of the European Union annexed to the Lisbon Treaty. Barroso, in the absence of formal proposals or communiqués from the British legation to Brussels, is essentially interfering in a purely domestic political issue in the UK – similar to his intervention with regard to the Scottish Referendum. In both these instances, the veracity of his statements in no way vindicate the violation of domestic sovereignty.
Secondly – and worse – is that Barroso’s interference adds fuel to the UKIP fire. The narrative from their party now will use these statements to underscore a manufactured perception that the Prime Minister and his party are supposedly lying to the electorate and ineffectual at asserting the British State’s rights internationally. This is completely false, but nonetheless effective and fitting with the UKIP ideological ‘Canada’ strategy. Disturbingly however is the notable lack of any of our British politicians having the confidence to mirror Barroso’s statements from within the UK. It would seem that the political strategists in the Labour and Conservative parties strongly feel that countering the message delivered by Farage and UKIP would not resonate with the public and might lose them the election. Talk about squeaky wheels…
Therefore, I propose a solution to my dilemma of two truths.
If UKIP has got this level of influence out of being the squeaky wheel on the EU, those of us who believe the opposite – that EU membership is fundamentally in the interest of Britain – should make our position known in sufficient numbers that incumbent and prospective politicians seeking our vote understand that we could do with an antidote to all this UKIP madness.
I say hold the referendum. To echo the Prime Minister, I am at heart a democrat. I accept the defects that come with such adherence to principle, and in this context accept that there is a risk that a majority may decide to take the UK out of the European Union. I hope that this is not the case, and I would contribute as I might to ensuring that the public had access to knowledge allowing them to decide the matter informatively.
However, hold the referendum now. Before the next General Election. On exactly the terms of the Lisbon Treaty as they stand today. Putting negotiations on the table under threat of departure is hardly the mature or enlightened persona that should accompany our nation’s relations with partner states. If reform is preferred, then remove the threat of departure, and allow the United Kingdom to take the lead in partnership with the other EU nations to examine the real concerns within the organisation. But we should abandon the idea that we can fundamentally gut the foundations unilaterally and still enjoy a positive relationship.
Rather than being unreasonable, let us be reasonable. Rather than collapsing into isolationist insanity, let us aspire to building cooperation. Rather than demanding the impossible, let us be the torch-bearer of real progress in Europe.
You can’t always get what you want… …but if you try sometimes, you get what you need.
Lyric Credit: You Can’t Always Get What You Want (Jagger/Richards) from Let It Bleed (1969)