Book Chapters — On Secessions, Constitutions and EU law

‘Between Two Unions: Brexit and the Secessionist Challenges in the UK’ in M Belov (ed), Territorial Politics. Constitutional and International Law Dimensions (London, Palgrave Macmillan, 2021) 165-190.

The decision of the UK Government to withdraw from the EU, the single market and the customs union, has left the two constituent nations that voted to remain in the Brexit referendum with a hard choice. Will they continue to be part of the United Kingdom or will they try to re-accede to the European Union? The chapter aims at analysing this question from a legal point of view. In particular, it discusses the constitutional pathways that Scotland and Northern Ireland can use and the challenges that they have to face in order to secede from the UK and re-join the EU.

‘EMU Integration and the Cypriot Constitutional Order’ in A Griller and E Lentsch (eds), EMU Integration and Member States’ Constitutions (Oxford, Bloomsbury (Hart Publishing), 2021) 361-377

The idiosyncratic nature of the Cypriot constitutional order has been shaped by the turbulent historical trajectory of the island. Notwithstanding, the legal order of the Republic of Cyprus has proved flexible enough to face effectively the challenges arisen due to its membership to the EMU. In fact, the institutions of the Republic managed to implement in an almost seamless fashion the swathes of different legislative instruments that are linked to the EMU. This is not to suggest that there have not been tensions. The implementation of the policies that were associated with the financial assistance programme led to thousands of legal challenges in front of the Cypriot and the EU courts.

‘The Paradox of Territorial Autonomy: How Subnational Representation Leads to Secessionist Preferences’ (with E Dinas) in R Albert and Y Roznai (eds), Constitutionalism Under Extreme Conditions: Law, Emergency, Exception (Berlin, Springer, 2020) 267-290.

The quest for peace, democracy and political stability has led a number of divided societies in Europe to opt for arrangements that entail segmental autonomy in order to accommodate ethnic diversity, avoid secession or even civil war. Although there are various institutional devices through which this idea can be implemented, in practice, one of its typical manifestations involves the devolution of legislative competences to the regional level. This process is in turn accompanied by the establishment of subnational representative institutions: governments, parliaments and elections. Although, such decentralization of political authority aims at accommodating the centrifugal tendencies existing in a given plurinational State, it may also have long-term unintended consequences. By focusing on Spain, the paper examines how subnational elections strengthen subnational identity, disseminate views in favour of further decentralization and may potentially cultivate secessionist preferences.

‘Brexit and Transitional Justice: Brexit as a Challenge to Peacebuilding’ in T Ahmed and E Fahey (eds), On Brexit: Law, Justices and Injustices (Cheltenham, Edward Elgar Publishing, 2019) 205-220.

This chapter maps the challenges that Brexit might pose to the peacebuilding processes in Northern Ireland and Cyprus. It argues that the decision of the UK to leave the single market and the customs union threatens the cross-border cooperation and as such creates tensions to the political and economic life of those two segmented societies. At the same time, the UK’s withdrawal from the EU questions the fragile balance that has been achieved on the question of sovereignty of those regions through the Good Friday Agreement and the 1960 Agreements related to Cyprus. The relevant Protocols of the UK Withdrawal Agreement try to address this issue by accepting some differentiated arrangements for the two regions post-Brexit and thus creating some continuity to their current EU legal status. However, while the idea of a differentiated Brexit has been accepted for the Sovereign Base Areas in Cyprus, it has been vehemently rejected for Northern Ireland.

‘On Brexit and Secession(s)’ in C Closa, C Margiotta and G Martinico (eds), Between Democracy and Law: The Amorality of Secession (Abingdon, Oxford, Routledge, 2019) 195-212.

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.

‘Taking Back Control? Brexit and the Court of Justice’ in A Kent, N Skoutaris and J Trinidad (eds), The Future of International Courts and Tribunals: Regional, Institutional and Procedural Challenges (Abingdon, Oxford, Routledge, 2019) 93-106

In popular eurosceptic mythology the CJEU has come to be seen as the ultimate symbol of supranational authority. In that sense, the UK Government has declared that post-Brexit the laws made in the UK ‘will be interpreted by judges not in Luxembourg, but in courts across this country.’ The present paper analyses the relationship between the Court of Justice and the UK legal order after Brexit takes place. It revisits the challenge that the EU principles of primacy and direct effect raised for the UK constitutional order. It explains the role that the Agreement on the UK’s Withdrawal from the EU envisages for the CJEU. Finally, it describes the role of the Court of Justice in the UK legal order after Brexit takes place by reference to the EU Withdrawal Act 2018 and the Agreement on the Future Relationship.

'Reflecting and Building Asymmetries: The Role of (Sub-) Constitutional Statutes in Spain and the UK' in R Albert and J Colon-Rios (eds) Quasi-Constitutionality and Constitutional Statutes: Forms, Functions, Applications (Routledge, 2019) 156-175

The Spanish and the UK constitutional orders are asymmetrical as to the level of autonomy that the various regional governments enjoy but also as to the kind of relationship each and every one of them develop with the metropolitan State. The paper provides for a comparative analysis of the role that the (sub-)constitutional statutes play in Spain and the UK in reflecting political asymmetries and creating constitutional ones. It argues that the processes that led to the drafting of the relevant documents have taken into account those very different political aspirations that certain ethnic and political communities had in those countries. At the same time, the distribution of competences between the various tiers as regulated by those statutes has translated the de facto political asymmetries into de jure constitutional asymmetries.

'The Cyprus Conflict in Turkish-EU Relations: A Gordian Knot?' in F Cengiz and L Hoffmann (eds), Turkey and the European Union: Facing New Challenges and Opportunities (Routledge, 2013) 28-44

The main research question of this contribution is how the Cyprus issue is linked with Turkey’s accession negotiations from an EU law point of view. In order to respond to this question, the chapter focuses on the Negotiating Framework for Turkey. The reason is that the accession negotiations are conducted in accordance with it, as it sets out the method and the guiding principles of them. In the first part of the chapter, the Negotiating Framework is placed within the wider legal framework of Turkey’s EU Accession negotiations. It is argued that although the document itself does not have legally binding effects upon Turkey, the EU Member States are legally bound to scrutinise Turkey’s progress against the priorities contained in it. In its second part, the chapter analyses respectively the legal implications of each of the priorities that is connected to the Cyprus issue. The overall argument of the chapter is that the normalisation of Turkey’s relations with the RoC is deeply embedded within the accession conditionality. Thus, it is to be expected that the ramifications of the age-old dispute would influence Turkey’s accession negotiations. At the same time, the Negotiating Framework does not seem to offer a comprehensive roadmap for the settlement of the international dispute. Thus the Framework does need seem to provide for the much needed ‘catalyst effect’.

'The Role of Sub-State Entities in the EU Decision Making Processes: A Comparative Constitutional Law Approach' in E Cloots, G De Baere and S Sottiaux (eds), Federalism in the EU (Hart Publishing, 2012) 210-229

The chapter examines the possible channels of regional participation in the Union policy-making processes both at the national and at the EU levels. With regard to the national level, the chapter mainly focuses on the constitutional orders of those Member States where the regional tier enjoys a constitutionally grounded claim for participation in the policy-making processes. In particular, we refer to the duty that some of the governments of those Member States have to inform their sub-State entities, and to the mechanisms provided for the participation of the regional tier in the formulation of the EU position of the Member State. Concerning the EU level, we examine the presence of the regional tier in the Union institutions and analyse the new system for subsidiarity compliance. The very presence of such institutional framework renders –partly at least – the ‘regional blindness’ thesis obsolete. However, the fact that only rather a limited number of entities benefit from those arrangements sheds light on the asymmetries of the EU’s constitutional order and points to the fact that we are still far from the enthusiastic vision of a ‘Europe of the Regions’ as described in the 1990s.

'Gestión de los Estados Plurinacionales Europeos: Consolidando el consocialismo a través de los sistemas electorales' [Managing the European Plurinacional States: Consolidating Consociationalism through the Electoral Systems] (with E Dinas) in Tribunal Electoral del Poder Judicial de law Federación (ed.), Sistemas electorales y principios constitucionales [Electoral Systems and Constitutional Principles] (Mexico City, Tribunal Electoral del poder Judicial de la Federación, 2012) 132-165.

Lijphart has argued that ‘for divided societies, ensuring the election of a broadly representative legislature should be the crucial consideration, and P[roportionate] R[epresentation] is undoubtedly the optimal way of doing so.’ Despite this assertion, European plurinational States have used a number of different electoral systems in order to effectively accommodate ethno-linguistic and religious cleavages in a consociational manner. The scope of the paper is twofold. On the one hand, it aims at mapping how consociationalism is echoed in the electoral systems of certain European plurinational States, where power-sharing arrangements are in place. To achieve this goal, the paper describes the consociational variant in the constitutional structures of three European divided societies and how the consensus model of democracy has been translated in their electoral systems. On the other hand, it consists of an effort to assess whether and, if so, the extent to which the relevant electoral systems have been successful at consolidating the consociational principle by focusing on the elections that have taken place in those political systems. By looking closely at the interplay between public opinion and political actors’ issue stances in those societies we are able to test whether the chosen electoral systems in the aforementioned power-sharing arrangements have favoured parties with a more consociational agenda over time or whether parties with a more ‘separatist’ one have managed to dominate the political arena. Overall, the present paper questions the success of consociationalism to bridge the ethno-linguistic and/or religious cleavages in the divided societies of Europe.

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'The Legal Dimensions of Cypriot Membership' in H Faustmann, J Ker-Lindsay and F Mullen (eds), An Island in Europe: The EU and the Transformation of Cyprus (London, IB Tauris, 2011) 42-64.

By mapping the partial application of the acquis in northern Cyprus, this chapter shows how the Union has managed to accommodate the Cyprus dispute within its legal order by adopting a seemingly depoliticised and technical approach when dealing with issues arising from it. It argues that although, politically speaking, the situation remains far from ideal, still, the Union has managed to absorb some of the stresses of the partition of the island by offering a mechanism that has enhanced the lives of the inhabitants on the island and has supported the normalisation of the relations between the two ethno-religious segments but also between the Turkish Cypriot community and the Union. The paper follows the structure of Protocol No 10 and analyses the relevant Union legislation and case-law that have further implemented and interpreted its provisions.

'The Status of Northern Cyprus under EU law. A Comparative Approach to the Territorial Suspension of the Acquis' in D Kochenov (ed), EU Law of the Overseas: Outermost Regions, Associated Countries and Territories, Territories Sui Generis (Kluwer Law International, 2011)

The aim of the paper is to discuss the territorial suspension of the acquis in northern Cyprus by briefly comparing it with analogous situations in Europe. It comments on Protocol No 10, analyses the relevant Union legislation and case law that have further implemented and interpreted its provisions and compares the status of northern Cyprus under Union law with relevant paradigms when appropriate. The relevance of such comparative approach is not so much a matter of identifying similar factual/ political/ legal problems but rather of looking at other cases in which the integrity of the Union legal order has come up against national constitutional challenges.

'The European Courts as Political Actors in the Cyprus Conflict' in F Snyder and I Maher (eds), The Evolution of the European Courts: Institutional Change and Continuity (Bruylant, 2009) 235-257.

The European courts have faced on several occasions questions arising from the Cyprus Gordian knot. The judgments inter alia of the European Court of Human Rights in Loizidou and in Xenides-Arestis and of the European Court of Justice in the Anastasiou saga and in Orams, have significantly altered the background of that ancient political conflict. The thesis of the paper is that although the courts have not refrained from becoming actors in this unique political situation by adopting a ‘political question’ doctrine, their jurisprudence points to the limits of an ‘incremental solution’ through the legal process and thus proves that in issues of grave political importance it is only a more democratic and deliberative procedure that could provide for a comprehensive solution. In order to achieve its scope the paper examines thoroughly the relevant case law on the protection of human rights in northern Cyprus and analyses the jurisprudence of the European courts on the issue of trade relations with the North.

'Taking EU Membership into Account: Strict Compliance or Accommodation?' (with M Cremona) in A Auer and V Triga (eds), A Constitutional Convention for Cyprus (Wissenschaftlicher Verlag Berlin, 2009) 49-62.

A possible solution based on a bi-zonal and bi-communal federation and political equality of the two communities, as agreed by them in numerous occasions and as described in UN Resolutions, would give rise to compatibility issues with EU law. Such a conclusion should not be read as excluding the possibility for the Union to accommodate a settlement that would contain derogations from Union law, given that Protocol No 10 to the Act of Accession of 2003 enables the EU to accommodate the terms of a settlement. This argument is also in accordance with the Union practice of accepting territorial exceptions to the application of the acquis. What remains to be answered is whether there are some provisions of Union law that could not be disregarded in the designing of a future settlement and thus strict compliance with them is a conditio sine qua non for the drafting of a settlement of the conflict.

'Differentiation in European Union Citizenship Law: The Cyprus Problem' in K Inglis and A Ott (eds), The Constitution for Europe and an Enlarging Union: Unity in Diversity? (Europa Law Publishing, 2005)

The paper analyses the EU citizenship status of the inhabitants of northern Cyprus. It does so by briefly reviewing the concept of EU citizenship; referring to the historical background of the Cyprus problem; analysing thoroughly the relevant provisions of the Constitution of Cyprus and the citizenship laws of that State; describing the sui generis case of the settlers; examining whether the new “Green Line” Regulation creates a de facto EU citizenship status for the inhabitants of northern Cyprus and discussing possible implications of Loizidou v. Turkey cases of the European Court of Human Rights.