Britain’s secession from the
E.U. was, I submit, based on a reaction within the state against it having
given up some of its sovereignty to the European Union. The American states too
were originally (i.e., from 1776) fully sovereign until they gave up some limited
(i.e., enumerated) sovereignty to the federal level in 1789. In 1861, South
Carolina, like Britain, also sought to secede based on the view that too much
sovereignty had been transferred. Unlike the UK, however, SC (and then the
other seceding states) resorted to force. Although the process of Britain’s
secession was arduous, I submit that South Carolina and federal officials had
been excessively rigid. Even though the “dual sovereignty” of the European and
American federal systems is perpetual, only the E.U. allows for peaceful
secession. This evinces a step forward in the political development of
federalism. Both a federal union and a strongly anti-federalist state are
better off with secession being possible, especially if the process is
peaceful. Europe deserves to be congratulated, and America would do well in
taking a lesson in order to benefit from the advance. Peaceful secession can be
done in a federal system of dual (i.e., federal and state) sovereignty.
Although several possible
rationales were put forward both for South Carolina (and the other confederate
states) and the United Kingdom seceding from their respective empire-level
unions, I contend that in both cases the enormous distance and thus tension
between confederalism (i.e., the states retaining sovereignty) and modern
federalism (i.e., dual sovereignty was the root cause. In both cases, the
belief that the federal level had too much governmental sovereignty at the
expense of that of the states was in play. In both cases, moreover, the
respective unions were seen as confederations. In the case of SC, this belief
supported the argument that a state could justifiably secede. In the case of
the UK, Prime Minister David Cameron referred to the E.U. to an association and
Britain as a member. This view is utterly incompatible with the E.U.s basic law
due to the feature of dual sovereignty. Joining an international organization
as a member does not involve any transfer of the member’s governmental
sovereignty.
Not even the European Economic
Community, the predecessor of the E.U., was an international organization
because sovereignty was split. In Flaminio
v. E.N.E.L. (1964), the European Court of Justice stated, “By contrast with
ordinary international treaties, the EEC treaty has created its own legal
system which, on the entry into force of the treaty, became an integral part of
the legal systems of the member states and which their courts are bound to
apply.”[1]
Even the superiority of the ECJ over state supreme courts involves a transfer
of sovereignty because a state cannot overrule the ECJ; the state is bound
rather than at liberty in this respect and has thus lost some sovereignty.
Interestingly, the Court nonetheless refers to the EEC as founded by an
international treaty, though not an “ordinary” one. Dual sovereignty
characterizes modern federalism, which began with the American constitution, so
not even confederalism, wherein the states retain full sovereignty, is
sufficient to characterize the EEC (not to mention the E.U.)! The reference to
a EEC non-ordinary treaty is thus problematic.
I suspect that the gravitas of
nationalism may explain the Court’s odd legal invention of a non-ordinary
international treaty wherein sovereignty is split within an overarching legal
system (i.e., modern federalism). I am reminded of a line from The Euthyphro, a Socratic dialogue. Euthyphro
suddenly remembers that he has an appointment as soon as he realizes that he
has lost the debate. Socrates quips, “Oh Euthyphro, you are a rascal!” Rather
than own up to the fact that international treaties do not split sovereignty
within an overarching legal system, the Court stated that the EEC international
treaty was not ordinary, and yet the ruling explicitly affirms: The transfer by
the states from their domestic legal system to the Community legal system of
the rights and obligations arising under the treaty carries with it a permanent
limitation of their sovereign rights.[2]
In fact, the EEC could exercise direct effect in obligating the residents of a
state without the state’s involvement.
The E.U. shifted even more
sovereignty from the states to the federal level and continued direct effect,
and expanded the federal governmental institutions to include a parliament and
an executive branch (with a president), so the case that the E.U. federal
system includes dual or split governmental sovereignty is even stronger. Even
so, David Cameron referred to the Union as one of the international
organizations to which Britain happens to belong. Even the Court ruling about
the EEC would challenge such a characterization, albeit in a vague way.
I submit that enough of the residents of the
E.U. state of Britain viewed the E.U. as an international organization and thus
as having an illegitimate claim to any sovereignty that secession was good both
for the state and the Union. Put another way, the state’s predominant notion of
what the E.U. was conflicted violently with what the E.U. actually was at the
time: a federal system characterized by dual sovereignty (i.e., modern
federalism—not even confederalism!). A real difference of opinion on something
is can be understood as a deep fault-line, and thus as destabilizing at best. A
house divided so fundamentally does not stand much of chance in the long term.
Therefore, it was to tremendous benefit both to the E.U. and its most wayward
state that the secession was not only allowed, but also accomplished peacefully.
The arduous process, in other words, was well worth all the headaches. The
American case demonstrates that resorting to force can go terribly wrong.
