como experto en derecho internacional tienes que revatir con ironia pero con muchos argumentos este texto con la vision sesgada: "('pdf', 'The Right to National \nSelf-determination within \nthe EU: a Legal Investigation08\nNicolas Levrat\nUniversity of GenevaEUBORDERS WORKING PAPER SERIES\nNicolas Levrat\nThe Right to National Self-determination within the EU: a Legal Investigation\nEuborders Working Paper 08\nSeptember 2017\nAbout the author\nNicolas Levrat is Professor of Law at the University of Geneva, Switzerland.\nEmail: <PRESIDIO_ANONYMIZED_EMAIL_ADDRESS>\nEuborders Working Papers are part of the “Borders, sovereignty and self-determination” research \nproject, which is coordinated by the Institut Barcelona d’Estudis Internacionals (IBEI), the Leuven \nCentre for Global Governance Studies (University of Leuven) and the Centre on Constitutional \nChange (CCC, Edinburgh). \nEuborders Working Papers ask how the new European multi-level scenario influences politics and \npolicy in contemporary Europe. They explore and discuss how the variable geographies of Europe -\nan borders may affect the issue of sovereignty and national self-determination. \nDownloads\nwww.euborders.com\nContact\ninfo@euborders.comAbstract\nContrary to contemporary international society which is based on the principle of equal \nrights and self-determination of peoples (UN Charter, Art. 1), European Law seems to \nignore the issue. This paper will nevertheless try to identify, within EU law whether a \nright, or elements of a right, to self-determination for those European peoples without \na state within the EU do exist. We first examine whether EU law makes references \nto self-determination. We also identify references that are made to “peoples” within \nEU law, before concluding that if no express provision recognizing the right to self-\ndetermination to European “peoples who have not yet achieved independence” exist, \nthere is no provision allowing current member states to rely on EU law to protect \ntheir current situation either. In the second part, we look at the possible building of a \ndemocratic right to self-determination, based either on EU citizenship or on individual \nhuman rights, or both. The third part examines the practice of EU member states and \ninstitutions as regards the exercise of the right to self-determination in Europe and \nthe organization of self-determination referenda within the EU. As a conclusion, we \nunderline the paradoxical relationship between the principle of self-determination and \nthe European integration process.\nKeywords:  Self-determination, EU, Law, Secession, a Right to Self-determination.The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 081The Right to National Self-determination within\nthe EU: a Legal Investigation\nOn 21 December 2016, the European Court of Justice recognized that, \n“the customary principle of self-determination referred to in particular in Article 1 \nof the Charter of the United Nations is, as the International Court of Justice stat -\ned in paragraphs 54 to 56 of its Advisory Opinion on Western Sahara , a principle of \ninternational law applicable to all non-self-governing territories and to all peoples \nwho have not yet achieved independence. It is, moreover, a legally enforceable right \nerga omnes  and one of the essential principles of international law.”1 \nAs case law of the ECJ consistently shows, the EU has to respect general internation -\nal law2 which, as such, is binding for EU institutions and member states (De Bur -\nca 2010). Has the ECJ, through its 21 December 2016 decision, recognized a right \nto self-determination within EU law to Basques, Bavarians, Catalans, Flemings or \nScots, among many others?\nSuch a conclusion would undoubtedly be hasty, since the case under examination by the \nECJ in its December 2016 decision was clearly related to a frozen decolonization pro -\ncess (Western Sahara), and not to the European context. However, the judges sitting in \nLuxembourg did not refer expressly to the decolonization context in their decision—as \nthey could have by referring themselves to one of the numerous UN General Assembly \nresolutions dealing with the right to self-determination of peoples under colonization \n(such as UNGA Resolution 15143). They quoted article 1 of the UN Charter, which \nclearly recognizes the right of self-determination to all people, without distinction be -\ntween peoples under colonial rule, other peoples who have not yet achieved independ -\nence, or peoples living in their own national state. \n1   ECJ, 21 December 2016, Council of the European Union v. Front Polisario , case C-104/16 P , § 88.\n2   ECJ, 16 June 1998, A. Racke GmbH & Co. v. Hauptzollamt Mainz , case C-162/96 § 45.\n3   UN General Assembly Resolution 1514 (XV) entitled “Declaration on the Granting of Independence \nto Colonial Countries and Peoples,” adopted on 14 December 1960. Security Council Resolutions dea -\nling with Western Sahara, at least one every year since 1971, always refer to UNGA Resolution 1514, \nnot to article 1 of the UN Charter.The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 082The ECJ was undoubtedly aware that the International Court of Justice, in its 2010 \nAdvisory Opinion about the Accordance with International Law of the Unilateral Dec -\nlaration of Independence in Respect of Kosovo (Kosovo Advisory Opinion) had taken \ngood notice that, \n“[d]uring the second half of the twentieth century, the international law of \nself-determination developed in such a way as to create a right to independence \nfor the peoples of non-self-governing territories and peoples subject to alien subju -\ngation, domination and exploitation […]. A great many new states have come into \nexistence as a result of the exercise of this right. There were, however, also instances \nof declarations of independence outside this context. The practice of states in these \nlatter cases does not point to the emergence in international law of a new rule pro -\nhibiting the making of a declaration of independence in such cases.”4\nThe exercise of a right to self-determination within the EU as “one of the essential prin -\nciples of international law,” leading to a declaration of independence and the emergence \nof a new state is, at the least, not forbidden by international law, therefore not by EU \nlaw either, which abides to this principle of international law. Could self-determination, \nbeyond its non-interdiction, even be recognized as a right belonging to those European \npeoples within the EU that do not have their own state, such as Basques, Bavarians, \nCatalans, Flemings, or Scots? This is the question the present paper tries to address.\nIt should be emphasized that the ICJ, in its Kosovo Advisory Opinion, did not expressly \npronounce itself on the scope and legal consequences of the right to self-determination5, \nneither confining it to the decolonization process, nor extending it beyond it as, for \nexample, the Badinter Commission had been envisaging for the dissolution of the SFR \nof Yugoslavia in the early 1990s (Pellet 1992). One of the major difficulties with the \nimplementation of the international legal principle of self-determination is that the \n4   ICJ, 22 July 2010, Advisory Opinion about the Accordance with International Law of the Unilateral Decla -\nration of Independence in Respect of Kosovo (Kosovo Advisory Opinion) , § 79.\n5   ICJ 2010 Kosovo Advisory Opinion , §§ 82 and 83; in the latter, the court states: “The Court considers \nthat it is not necessary to resolve these questions in the present case. The General Assembly has reques -\nted the Court’s opinion only on whether or not the declaration of independence is in accordance with \ninternational law. Debates regarding the extent of the right of self-determination and the existence of \nany right of “remedial secession”, however, concern the right to separate from a State. As the Court has \nalready noted (see paragraphs 49 to 56 above), and as almost all participants agreed, that issue is beyond \nthe scope of the question posed by the General Assembly. To answer that question, the Court need only \ndetermine whether the declaration of independence violated either general international law or the lex \nspecialis  created by Security Council resolution 1244 (1999).”The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 083potential beneficiaries of this right—peoples—have no commonly accepted legal defi -\nnition in international law (Moore 1998; Buchanan 2007; Hannum 2011). Furthermore, \nseveral underlying concepts of national destinies coexist in national self-determination—a \npeople when exercising its right to self-determination through accession to independ -\nence becomes the nation of a new national state6 —, leading to divergent requirements \nto fulfil the national criteria (Greenfeld 2011). \nIn that delicate issue, let us underline that the current attempts at national projects in \nEurope—such as Scotland which organized a referendum on self-determination on 18 \nSeptember 2014, or Catalonia whose government will attempt to organize, against the \nwill of the Spanish government, a self-determination referendum for 1 October 2017—\nare not primarily based on an ethnic or cultural concept of nationalism, but rather on a \ncivic or democratic perspective of nationalism (Guibernau 2004; Jackson 2014), which \ndoes not necessitate the definition of a people as a preexisting collective entity (Smith \n2010), but will materialize a nation in the process of exerting its self-determination \n(Wellman 2005; Williams and Jannotti Pecci 2012).\nIn that debate about the nature of national projects in which the critics of civic na -\ntionalism are much more numerous and vociferous than its supporters (Young 2000), \nplease take note that the past exercises of self-determination, especially in the process of \ndecolonization, were based on preexisting territorial delimitations (administrative bor -\nders) rather than on the precise definition of a given ethnic or linguistic group, that is a \npeople (Corten 1999), giving very little practical evidence that the exercise of the right \nto self-determination relies concretely on the preexistence of a defined people. There -\nfore, and as a matter of fact, most, if not all, states appeared through the decolonization \nprocess are still constituted of several peoples or ethnic, religious, or linguistic groups, \nbe they recognized as such or not.\nThe present paper will try to identify within EU law whether a right, or elements of a \nright, to self-determination for those European peoples without a state within the EU \ndo exist. We shall first examine whether EU law (1) makes references to self-determination \n(1.1), then identify the references that are made to “peoples” within EU law (1.2), before \nconcluding that if no express provision recognizing the right to self-determination to \nEuropean “peoples who have not yet achieved independence,” there is no provision al -\nlowing current member states to rely on EU law to protect their current situation either \n(1.3). In the second part, we shall look at the possible building of a democratic right to \nself-determination, based either on EU citizenship (2.1) or on individual human rights \n6   ICJ 2010 Kosovo Advisory Opinion, § 79, quoted above, note 4.The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 084(2.2), or both. We shall in the third part examine the practice of EU member states \nand institutions as regards the exercise of the right to self-determination in Europe \n(3.1) and the organization of self-determination referenda within the EU (3.2). As a \nconclusion, we shall underline the paradoxical relationship between the principle of \nself-determination and the European integration process.\n1. The right to self-determination in EU law\nIn contrast to international law which embedded the right to self-determination of \npeoples as a cornerstone of positive contemporary international law, as the ECJ rec -\nognized in its 21 December decision, European law did not put any explicit emphasis \non the right of peoples to self-determination. Neither the Council of Europe nor the \nEU specifically recognize the right to self-determination. CSCE in the mid-seventies \n(Helsinki principles of 1975) and early 1990s (Paris Charter of 21 November 1990 \nfor a New Europe) does refer to the right of peoples to self-determination. However, \nneither the Helsinki principles nor the Paris Charter are considered legally enforceable \ndocuments (they are not international treaties), and therefore do not constitute positive \nEuropean law. This absence of any explicit provision in European law has led to con -\njectures and divergent opinions among scholars (Keating 2004; Weiler 2012; Crawford \nand Boyle 2013; Edward 2013) and authorities on the possibilities to ground the right \nto self-determination in European law. \n1.1 EU law recognizes self-determination to peoples constituted as European states\nWithin the framework of the EU, states (through their authorities) act on behalf of \n“their peoples” as is mentioned five times in the two Treaties (paragraphs 6, 9, and 12 of \nthe TEU, and paragraphs 3 and 9 of the Preamble of the TFEU).\nArts. 49 and 50 TEU (and, to some extent, Art. 48) may be considered to recognize \na right to self-determination for European states, that is, to their peoples. According \nto Art. 49 § 1, “any European States which respects the values referred to in Article 2 \n[TEU] and is committed to promoting them may apply to become a member of the \nUnion.” In the same way, each member state is free to decide whether it accepts sharing \nmembership with a new European state (Art. 49 in fine ). Finally, every member state \nof the EU retains the right to decide, according to its own constitutional requirements, \nwhether to withdraw from the Union (Art. 50 § 1). The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 085Note that article 50 is the only one to genuinely allow for self-determination—it is a \nunilateral decision, despite the fact that it does not have immediate full legal conse -\nquences and only produces effect two years after formal notification to the European \nCouncil (Art. 50 § 3 TEU). For the cases dealt with by Article 48 (modification of \nthe Treaties) or 49 (membership of a new state), the legal effect of the exercise of the \nright of the peoples of member states according to their constitutional requirements \nare actually subordinated to the equivalent positive choice of other European peoples. \nIf the voters in one member state refuse to validate the collective choice, all the positive \nvotes of other European states remain without legal effect. In other words, the power to \nmodify the treaties— kompetenz kompetenz  so present in the German-inspired literature \n(Weiler 1996; Pernice 2002)—or to accept new member states has not been transposed \nto the EU as such. EU citizens, even in the realm of the treaties, are not constituted \nas a new European nation which would have the capacity to exert self-determination. \nAt the same time, no member state may decide unilaterally—except for Article 50 \nwhich has the precise purpose of withdrawing from the EU, allowing for the recovery of \nself-determination capacity—about its political future within the EU. Within this “new \nlegal order” that is EU law7, the concept of self-determination is obsolete and being \nreplaced by an emerging concept of co-determination. European states that decide to \njoin the EU renounce their right to self-determination, which is immediately replaced \nby a right to co-determination, since even the decision to join the EU is subordinated \nto acceptance by all other EU member states. Naturally, such restrictions only apply to \nmatters covered by the Treaties, but the development of European integration covers \nalmost any substantial political decision for member states (Levrat forthcoming). Thus, \neven this rare case in which a right to self-determination by applying for EU member -\nship seems to be recognized by the TEU it is, in fact, already an act of co-determination, \nsince every EU member state has to agree to the choice of the applicant state for its \nmembership to become effective. The paradox for European peoples without a state \nwho would like to fully participate to the European integration process (as is explicitly \nstated by Catalan and Scottish nationalist parties), and therefore accept co-determination \nis that to be allowed to do so, they first have to exercise their right to self-determination \nin order to become a European state (Cuadras Morato 2016). It is only then that they \nmay renounce self-determination and their recently earned full statehood to join the \nEU in a co-determination process (Avery 2014). This is what I call the paradoxical \nrelationship between the principle of self-determination and the European integration \nprocess; I shall come back to it in a post-scriptum.\n7   ECJ, 5 February 1963, Van Gend & Loos, case 26-62 and ECJ, 15 July 1964, Costa, case 6/64.The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 0861.2 EU Treaties do make relevant references to other categories of “peoples”\nIn addition to the abovementioned references to peoples of member states who are rep -\nresented by the heads of their respective states (whose names appear at the beginning of \nthe preamble), there are also other references to “peoples” in the founding Treaties. Ref -\nerence is made to: “peoples of Europe” (§ 1 of the Preamble and Art. 1 § 2 of the TEU, \nas well as § 1 of the Preamble of the TFUE); the “European peoples” (Art. 167 TFEU); \nthe “peoples of the EU” (Art. 3 § 1 TEU); or, in EU relations to the wider world, to the \nbroadest meaning of the term according to which the EU undertakes to promote “mu -\ntual respect among peoples” (Art. 3 § 5 TEU). However, the most interesting reference \nfor our investigation to a specific category of peoples in EU law is to be found in the \npreamble of the TFEU, where one can read that the states united within the EU are \n“calling upon the other peoples of Europe who share their ideal to join in their efforts.” \n(§ 8 of the Preamble of TFEU). \nThis wording dates from the 1957 Rome Treaty establishing the EEC and has not been \nchanged since. Alas, the legal doctrine did not comment on this paragraph of the pre -\namble. One may easily imagine that in 1957 it may have referred either to peoples in the \nwestern European states that were not yet in the Communities (the UK, Scandinavian \ncountries, etc.), to peoples from southern Europe that were still under military rulers \n(Portugal and Spain), or to peoples from eastern Europe. Today, however, most of these \npeoples have joined the EU and despite numerous rewriting of the Treaties, the para -\ngraph remains. Whose peoples is it aiming at? The Icelanders, the Norwegians, and the \nSwiss? Or could it be European peoples that do not have their own state, and are thus \nunable to join the EU process since Art. 49 TEU clearly limits the capacity to postulate \nfor membership to “European States,” which are being encouraged to create their own \nnational state to be able to join the peoples of EU in their efforts to unite? \nIt would most likely be far-fetched to defend that interpretation as positive law. Even \nso, EU practice as regards European peoples deprived of their own state outside the EU \nhas been, if not to encourage secession, at least to quickly reward independence through \ngranting EU membership (think about Croatia, the Czech Republic, Estonia, Latvia, \nLithuania, Slovakia, and Slovenia). And it would not be surprising that the Scots would \nbe supported in their bid to join the EU, were they to become a European State as re -\nferred to in Art. 49 TEU, after Brexit is completed. \nThis raises an interesting question. If a nation without a state outside of EU could be \ncalled to join the efforts of unification—and Scots would certainly qualify as such a \nEuropean people after Brexit, as the Lithuanians did under USSR or the Slovenians \nunder Yugoslavia—would the fact that other European peoples exist within a member The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 087state disqualify them from being one of the “other European peoples”? Such a situation \nwould be qualified as reverse discrimination, which is the appellation for situations in \nwhich the legal subject that enjoys the best status ends up being treated less favourably \nthan other legal subjects with a lesser status. Within EU law, the topic has mostly been \nstudied as regards to discrimination between nationals and EU citizens, whereas the \nlatter may, through their rights derived from the EU law after they have exerted their \nright to establish themselves in a third country, benefit from a better treatment than \nnationals (Tryfonidou 2009). If formally plausible under positive law, such situations \nare always difficult to legitimize in a democracy-based legal order.\n1.3 No provision in EU treaties prevents the exercise of the right to self-determination\nIt may also be necessary to underline the capacity of “other European peoples” to exercise \ntheir right to self-determination while they are under the jurisdiction of an EU member \nstate is constrained by no provision of EU law that would allow any member state to jus -\ntify its policy to deny that a right. Despite Article 4 § 2 TEU, which states that\n“the Union shall respect the equality of member states before the Treaties as well \nas their national identities, inherent in their fundamental structures, political and \nconstitutional, inclusive of regional and local self-government. It shall respect their \nessential state functions, including ensuring the territorial integrity of the state, \nmaintaining law and order and safeguarding national security. In particular, nation -\nal security remains the sole responsibility of each member State,” \nEU law does not protect existing “national identities” or the “territorial integrity” of \ncurrent member states.\nAs clearly stated by Art. 5 TEU, the competencies of EU are bound by the principle of \nconferral, which means that “the Union shall act only within the limits of the compe -\ntences conferred upon it by the member states in the Treaties to attain the objectives \nset out therein. Competences not conferred upon the Union in the Treaties remain \nwith the member states” (Art. 5 § 2 TEU). Therefore, the EU founding Treaties may \nnot recognize additional competencies to member states, only confer competences to \nthe EU and its institutions, and Art. 4 TEU does not confer any additional competence \nor legal protection to member states. Art. 4 TEU explicitly specifies that the issues of \nnational identity and of territorial integrity of the state are fully outside of the EU range \nof competence and remain “the sole responsibility of each Member State” (Art. 4 § 2 \nTEU in fine ). These remain matters outside the scope of EU law, as such. In a letter \non 7 January 2014 to the President of the Catalan government, the President of the The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 088European Commission, José Manuel Barroso, considered that Catalonia’s attempt at \nself-determination was “a question of internal organization related to the constitutional \narrangements in the member state” (Kochenov and van des Brink 2016). It doesn’t, \nhowever, mean that EU member states are free to exert their own competencies regard -\ning their national identity or territorial integrity as they wish; they remain bound by \ntheir membership to the EU, and notably by the duty to respect “European values” as \nthey are explicitly enunciated in Article 2 TEU. \nAs an example to be kept in mind, Austria in 2000 was subject to EU sanctions for not \nrespecting European values when the leader of the Austrian conservative party, Wolf -\ngang Schüssel, formed a national government—following general elections that were \nheld in November 1999 and that were clearly meeting the democratic standards for \nEuropean states—through coalition with a political party ( Jörg Haider’s FPÖ) whose \ndiscourse and positions regarding European history (specifically the Nazi legacy) were \ncontrary to European values. At the time, nobody claimed that the right and political \nmotivations to form a national government fell within EU competences, nor that Aus -\ntria had violated any specific treaty provision. No one pretended that the November \n1999 parliamentary elections in Austria had violated democratic standards or any legal \nprovisions. Nevertheless, this did not prevent all the other EU member states from \nadopting sanctions against the Austrian government for a breach of European values \nfor its illegal behaviour within its own sphere of competence (Levrat 2004).\nEU membership does not provide any additional “protection” to member states’ national \nidentity or territorial integrity. As we have shown with the ICJ in its Kosovo Advisory \nOpinion, “the scope of the principle of territorial integrity is confined to the sphere of \nrelations between States.”8 The protection of the state’s territorial integrity only applies \nin relationships between states, and does not deter the right of a people to decide on its \nnational future, even if this people is situated within an existing state. EU membership \nbinds EU member states to the duty to respect European values as stated in Article 2 \nTEU, even in the exercise of their own competences. EU law, even in the absence of \nspecific provisions on the right to self-termination, provides a legal framework within \nwhich the issue of self-determination has to be dealt.\nWe may end this section by concluding that inside EU member states there may be \n“other European peoples,” which cannot join the efforts of European unification as \nsuch (as a European people according to Art 1 § 2 TEU), except by becoming a Eu -\nropean state, that is, by seceding from the existing European state in which this “other \n8   ICJ, 22 July 2010, Kosovo Advisory Opinion , § 80.The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 089European people” is encompassed. This is what the former European Commission’s \nPresident Jacques Delors implied when he famously declared that the EU had to be -\ncome a “Federation of Nation-States” (Ricard-Nihoul and Delors 2012), meaning that \nthe genuine and full participation to the EU project for citizens belonging to European \npeoples without a state includes the right for these peoples to constitute themselves as \nEuropean nation-states to fully participate in the EU as members, under the terms of \nArt. 49 TEU (Levrat 1997).\nAs we see, EU is not indifferent to the rights of European peoples even though no \nclear provision in positive law—and even less so in procedural considerations for the \nmaterialization of such a peoples’ right—is to be found in EU law. No more than in \ninternational law will a precise definition of those peoples who could claim the right to \nself-determination be found in European law, making it difficult to effectively imple -\nment the right. However, as we have shown in our introduction, the exercise of the right \nto self-determination based on a civic conception of national self-determination—which \nis not limited to members of a preexisting ethnic or cultural group, but is grounded in \nthe democratic rights of citizens to freely decide their own political and socioeconomic \nfuture—may be based on EU law, since in this perspective the constitution as a Euro -\npean people is consubstantial to the exercise by citizens of the right to decide on their \nown political future within the EU. That is actually what self-determination is all about.\n2. Elements for grounding a right to democratic self-determination for EU citizens\nEU law is not classical international law, which mainly deals with relationships between \nstates and international organizations. Quite the opposite, it constitutes \n“a new legal order of international law for the benefit of which the states have lim -\nited their sovereign rights, albeit within limited fields, and the subjects of which \ncomprise not only member states but also their nationals. Independently of the \nlegislation of member states, community law therefore not only imposes obligations \non individuals but is also intended to confer upon them rights which become part \nof their legal heritage.”9\nAs stated by the court, it is not only states and institutions which derive rights from the \ntreaties: other legal subjects, such as individuals, and also local or regional governments, \nnon-profit organizations, and businesses do too (Edward 2013). In that perspective, the \n9   ECJ, 5 February 1963, Van Gend en Loos v. Nederlandse Administratie der Belastingen , case 26/62.The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 0810EU founding treaties, by conferring and recognizing democratic rights to all member \nstates’ citizens through EU citizenship, may constitute a European legal base for the \ndemocratic exercise of the right to self-determination (2.1). This right is built on an \nindividual human right exercised collectively (a political, social, cultural, and economic \nright) whose exercise must be respected by EU member states and protected by EU \ninstitutions (2.2).\n2.1 The right to self-determination for EU citizens of European nations without a state\nEuropean citizenship is acquired (derived) through the nationality of a member state, \nbut is distinct from it10 . It implies specific and new political rights, such as the right to \nparticipate in electoral processes at the local level in the member states in which you \nreside notwithstanding your nationality, the right to participate to the EP elections in \nthe country where you live, the right to initiate and sign European Citizens’ Initiative, \nand the more general rights to participate in democratic life within the EU, as stated in \nTitle II of the TEU (Bellamy 2008). \nBased on this European citizenship as a political right, a strong trend in European \nstudies literature defends the idea that the EU constitutes a demoicracy, meaning that \nseveral demoi (peoples in Greek) coexist within a single EU polity (Nicolaïdis 2004; \nCheneval and Schimmelfenning 2013). All these theories are built on the idea that \nthese European peoples are the people of each nation-state; there is, however, no theo -\nretical argument to consider that among the peoples constituting this EU demoicracy, \nBasques, Bavarians, Catalans, Flemings, Scots, or others, are to be excluded as consti -\ntutive peoples. They could also be considered part of the national people(s) of Spain, \nGermany, Belgium, or UK living in a multi-people or multinational state (Pierre-Caps \n1995; Kymlicka 2011).\nArt. 1 of the Treaty on the European Union, as it reads after Lisbon’s modification, rec -\nognizes the right of the “peoples of Europe” to participate to the process of “creating an \never closer union between the peoples of Europe” (Art. 1 al. 2 TEU). In this first article \nof the treaty on the EU—a very fundamental one as a systematic analysis of the treaty \nevidences—, “peoples of Europe” are clearly considered distinct from European states, \nwho are referred to in the 1st paragraph of this article as the high contracting parties \n(Van Gerven 2005).\n10   ECJ, 2 March 2010, Janko Rottmann v. Freisaat Bayern , case C-135/08.The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 0811As a matter of fact, paragraph 2 deals with the “peoples of Europe” and European cit -\nizens, whereas paragraph 3 deals with the legal foundation of the EU. This article 1 is \nclearly referring to the fundamental rights of legal subjects within the EU, and peoples \nand citizens are treated separately from member states and the EU as such, and do \nhave specific rights. In article 1 § 2 TEU the right to have decisions “taken as openly as \npossible and as closely as possible” are recognized for the citizens, while for European \npeoples is proclaimed the right to be part of the “process creating and ever closer union \nbetween the peoples of Europe”. So the right of European peoples within the EU are \nsystematically linked to citizen’s right, not to member states’ rights. In that respect, it is \nworth noting that in its 1963 Van Gend and Loos  ruling, the ECJ did not only recognize \nrights directly stemming from EU law for individuals and other non-state actors, but \neven specified that “[t]hese rights arise not only where they are expressly granted by the \nTreaty, but also by reason of obligations which the Treaty imposes in a clearly defined \nway upon individuals as well as upon the member states and upon the institutions of \nthe Community.”11\nOne has to acknowledge that the participation in the European demoicracy is not sat -\nisfactorily materialized for EU citizens of a European people (living within the EU) \nwithout a nation, since these EU citizens would only be directly represented in the EP \n(Art. 10 § 2 TEU), but not, as expressly required by the TEU, indirectly through their \nnational government within the Council and European Council (Art. 10 § 2 al 2 TEU). \nAs illustrated more and more clearly through the ongoing and developing political \nconflict between the Catalan government and the Madrid government, the majority \nof EU citizens that elected the current Catalan authorities could legitimately claim \nthat they are no longer represented in the EU Council by Madrid government as their \n“national government.” The same is certainly true for Scots with the Downing Street \ngovernment in the era of Brexit. This situation violates their right as EU citizens, “to \nparticipate in the democratic life of the Union” (Art. 10 § 3 TEU), and their right to an \nequal treatment, as EU citizens, by EU institutions (Art. 9 TEU). This means that the \nEU’s current institutional arrangement in which these EU citizens—part of a Europe -\nan people without a state—do not enjoy full participation in the democratic life of the \nUnion (Art. 12 § 3 TEU), is in violation of the value of democracy on which the EU is \nfounded (Art. 2 TEU) and by which it is bound.\nThis legal analysis demonstrates that democratic rights do not belong to any European \npeople as such as the logic of self-determination of peoples as commonly understood \nin international law implies. In the European legal framework, each people will be \nself-determined and self-constituted by the democratic exercise of the individual right of \n11   ECJ, 5 February 1963, Van Gend en Loos v. Nederlandse Administratie der Belastingen , case 26/62.The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 0812its members to decide on their own common political future, their own national project. \nA European people cannot be defined from the outside (which is quite coherent with \nthe concept of self-determination), or by ethnic, linguistic, historic, or other “objective” \nfactors. Being anchored on a citizen’s right to participate in the democratic life of the Un -\nion, which would be violated by denying the European people to which s/he belongs the \nexpression of self-determination within the EU—especially representation in the EU’s \nCouncil of Ministers (according to Art. 10 § 2 TEU)—the right to self-determination \nwithin the EU has to be understood as a collectively exercised individual human right.\n2.2 The right to self-determination as a collectively exercised individual human rights\nEU law, until very recently, did not incorporate provisions for the protection of human \nrights. In a form of “division of labour,” the protection of human rights was left to the \nCouncil of Europe12. The European Convention for the Protection of Human Rights \nand Fundamental Freedom was adopted in November 1950 in Rome within the frame -\nwork of this organization, which not only guarantees a series of human rights, but also \ninstitutes a European Court of Human Rights based in Strasbourg.\nIn the late 1960s and early 70s, the European Court of Justice (of the EU, based in Lux -\nembourg), recognized that the EU legal order included human rights, as general princi -\nples enshrined in European Community Law13, or as “constitutional traditions common \nto the Member States”14. It is only in 1992, however, with the Maastricht Treaty, that \na requirement for member states of the EU to respect fundamental human rights, the \nrule of law, etc. (more or less the values listed in today’s Art. 2 TEU) was explicitly in -\ncluded in EU law (Treaty of Maastricht, Art. F). It wasn’t until 2000 that the Charter \nof Fundamental Rights of the European Union was adopted, which is “recognized by \nthe European Union […] and shall have the same legal value as the Treaties” (Art. 6 § \n1 TEU) when the Lisbon Treaty came into force.\nAs we’ve seen above, the right for a European nation without a state to decide about \nits political future is not expressly guaranteed as a human right in European law. This \nis a strong contrast with international human rights law which, through both 1966 \n12   A European organization based on a statute adopted in London on 5 May 1948. Based in Strasbourg, \nit today has 47 member states.\n13   AECJ, 12 November 1969, Erich Stauder v. City of Ulm , case 29/69.\n14   ECJ, 17 December 1970, Internationale Handelsgesellschaft v. Einfuhr Vorattstelle für Getreide und Fut -\ntermittel , case 11/70. The formula is nowadays written in art. 6 TEU.The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 0813UN Covenants, on economic, social, and cultural rights on the one hand, and on civil \nand political rights on the other, have a common first article guaranteeing the right of \nall peoples to self-determination. European Human Rights law remains silent on this \nissue. However, all the 28 EU member states have ratified both 1966 UN Covenants, \ntherefore recognizing as a binding rule of positive international law the right of all peo -\nples to self-determination as a fundamental human right.\nThe EU and its member states being “founded on the values of respect for human dig -\nnity, freedom, democracy, equality, the rule of law and respect for human rights” (Art. \n2 TEU), it means that any restriction of individual rights, and even more so of funda -\nmental human rights, may not be exercised arbitrarily, but only if there is a clear legal \nbasis. Any limitation on the individual democratic right to exercise self-determination \ncollectively through a democratic process would have to be grounded in law. I do not \nhave sufficient space in the present paper to examine the possible limitations stemming \nfrom international or national law, and shall therefore remain focused on European law. \nAs we have seen above (1.3), in the absence of any specific provision in European law, \nno right may be claimed by a state under European law to limit the collectively exer -\ncised human right to self-determination of individuals belonging to a European people \nwithout a state within the EU.\nEU citizenship rights and, more general, the political rights of Europeans are recog -\nnized and protected by European law. These include freedom of expression (Art. 10 \nECHR) and freedom of assembly and association (Art. 11 ECHR), which gave rise \nto interesting case law. Both these freedoms may be, according to the ECHR, limited \nby state authorities, however, “no restrictions shall be placed on the exercise of these \nrights other than such as are prescribed by law and are necessary in a democratic soci -\nety in the interests of national security or public safety, for the prevention of disorder \nor crime, for the protection of health or morals or for the protection of the rights and \nfreedoms of others” (Art. 11 § 2 ECHR). Would then the prohibition of the exercise of \nthe democratic right to self-determination by an existing EU member state meet the \nrequirements set by the ECHR?\nIn a 2001 decision revising the legality of the interdiction of a political party in Bul -\ngaria that was openly calling in its program for the secession of part of Bulgaria to join \nMacedonia, the European Court of Human Rights stated that, “the fact that a group of \npersons calls for autonomy or even requests secession of part of the country’s territory—thus \ndemanding fundamental constitutional and territorial changes—cannot automatically The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 0814justify a prohibition”15. This European Court of Human Rights ruling means that the \ncall for secession is not contrary to national security or public safety per se—as the \nICJ also seemed to acknowledge in its 2010 Kosovo Advisory opinion—and therefore \nmay not be invoked in a democratic society to prevent the expression of that goal nor \nto prevent the assembly of peoples to exercise that right. ECHR’s Arts. 10 (freedom \nof expression) and 11 (freedom of association) protect the right—within limits—of \nindividuals to democratically and collectively decide on their political future through a \nnational project, based on collectively exercised individual freedoms (Corretja Torrens \n2016; Tudela Aranda 2016). If a secessionist agenda constitutes a legally acceptable \npolitical proposal in a democratic society, as the ECtHR says, it means that secession, \nas an outcome of the regular political process, is a legitimate outcome and upholds Eu -\nropean values.\n*\nThere is both a remedial and individual dimension to the recognition of the right to \nnational self-determination within the EU for citizens of all European peoples without \na state. The remedial dimension is based on European values and EU citizens’ rights \n(non-discrimination, full democratic participation in the EU) of members of these oth -\ner European peoples that do not already have their own national state. The individual \ndimension stands on the free collective exercise of individual rights as guaranteed by \nEuropean human rights law. However, and as in conclusion of the first section, one may \nwonder whether leaving it to each European nation without a state to constitute itself \nas a Europe a state through the perilous collective exercise of individual human rights \nbefore formally acknowledging the legitimacy of its national claim (Art. 49 TEU), is \nwiser than envisaging a specific procedure, within EU law, to deal with the legitimate \nclaim of European peoples within the EU that do not yet have their own European \nstate. It may well be an issue to be envisaged in a future treaty revision.\n3. Recognition of the right to self-determination through EU practice\nIn international, as in EU, law, states and international organizations may be bound by \nlegal norms which emerge out of their practice (customary law). One may ask two ques -\ntions: first, whether the threshold for creating an EU or an international law customary \n15   ECtHR, 2 October 2001, Stankov and the United Macedonian Organisation Ilinden v. Bulgaria (appli -\ncation numbers 29225/95 & 29221/95).The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 0815norm has been reached by the past practice of EU member states and institutions; and, \nsecond, if the answer to this first question is potentially positive, whether the current \nsituation of European nations without a state within the EU is similar enough to these \nprecedents from which a customary rule emerged. To identify the emergence of a cus -\ntomary norm, international law requires two elements: a practice and an opinio iuris . \nThe practice is consistent as we shall see below. Relevant opinio iuris  in such cases is \nboth the one of the EU institutions (Council, European Parliament and Commission), \nwho according to article 49 TEU decide to accept candidacy for membership, and the \none of EU member states, since each state ratifies the new member state adhesion \naccording to its “respective constitutional requirements.” EU member states’ practice \nin the present case is all the more relevant since it is not only the government that ex -\npresses the state’s opinio iuris , but all the state bodies and components which, according \nto the national constitutional requirements, have to ratify the accession treaties (Art. \n49 TEU). Examination of the arguments put forward during the national debates on \naccepting new member states did not reveal any significant position against national \nself-determination as had been exerted by these European peoples or nations. \nThe result of this investigation may amount to identifying a common constitutional \ntradition of member states recognizing the emergence of new European states through \nthe exercise of self-determination. The ECJ has been known to complete EU law by in -\ncorporating legal rights “as they result from the constitutional traditions common to the \nmember states,”16 especially in the field of human rights. If the constitutional practice in \nmember states in the recognition of the results of national self-determination processes \nwithin the EU context is sufficient to establish a constitutional practice common to the \nmember states, the ECJ may consider that this common practice has given birth to a \nproper EU right, as a general principle of EU law.\nIt appears that EU member states may well have already recognized a right to national \nself-determination to European peoples through their practice.\n3.1 Recognizing the result of exercised self-determination by European peoples\nIf no formal right to democratic self-determination in Europe can be identified in EU \nlaw, the practice of recognizing the results of self-determination referenda has been \ncontinuous and consistent, at least for peoples outside the EU that have been allowed \n16   ECJ, 12 November 1969, Stauder v. Ulm-Sozialamt , case 29/69; 28 October 1975, Rutili v. Ministre de \nl’Intérieur , case 36/75; 19 November 1990, Francovich et al. v. Republic of Italy , case C-6/90 & C-9/90. \nAlso Art. 6 § 3 TEU.The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 0816to join shortly after their democratic self-determination process led them to become \nstates under international law. The adhesion to the EU in 2004 of the Czech Republic, \nEstonia, Latvia, Lithuania, Slovakia, and Slovenia—none of which was a European \nstate before 1990, but all emerged as such after self-determination referendums organ -\nized in the nineties17, before being admitted as EU member states—are all examples \nof self-determination practices of European people or nations, unanimously approved \nby EU member states. Even though the independence referenda were held in the early \n1990s, the relevant practice from EU institutions and member states dates from the \nearly 2000s in these six states and was expressly repeated in 2013 when Croatia was \nallowed to join the EU18, displaying the continuity of EU practice.\nThere is a longlasting and consistent practice in EU member states to recognise \nself-determination processes, notably outside the context of decolonization and within \nEurope, that binds EU and its member states, which shall be called to act consistently \nwith their past practice. One may argue that the situation of a national self-determination \nprocess within the territory of an EU member state is different from those on which the \nexamined practice is based. We shall show in the next paragraph that self-determination \nreferenda within the EU (or EEC) have already taken place, and neither their organi -\nzation nor their results have been challenged as illegal.\n3.2 A consistent practice of self-determination referenda within EU member states\nA consistent European state practice is to accept self-determination referendum for in -\nfrastate territorial units within the EU’s territory (Saarland 1955 and Greenland 1982; \nScotland 2014) and to then accept their outcome. \nThe 1955, 1982, and 2014 referenda held in EU member state territory did not give \nrise to any legal dispute on their conformity to EU law. The 1955 Saarland referendum, \nwhich was clearly linked to the European integration process even though without a \nlegal base within the EEC Treaty, recognized Saarlander’s right to determine its own \npolitical status within the EEC (Patterson 1958). The fact that Saarlanders chose to \n17   Referendums on independence were organized: on the 23 December 1990 in Slovenia, on 9 February \n1991 in Lithuania, and on 3 March 1991, both in Estonia and in Latvia. The case of the Czech Repu -\nblic and Slovakia is technically different since these two new European States came to life through a \nconstitutional arrangement within Czechoslovakia, which may not be formally considered a self-de -\ntermination referendum process.\n18   Croatia organized an independence referendum on 19 May 1991; it joined the EU on 1 July 2013.The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 0817join Germany has no influence on the fact that they effectively did exert a right \nto self-determination19. In 1982, Greenlanders were also recognized the right to \nself-determine their belonging to the EEC and allowed to hold a referendum on the \nissue. The result of their referendum was recognized by the EEC member states through \na subsequent modification of the EEC Treaty recognizing the choice of Greenlanders \nto withdraw from the full EEC regime20.\nIn the exact same way, the Scotland’s 2014 self-determination referendum did not raise \nconcerns about its legality under EU law. This referendum was based on a political \nagreement between the UK and Scottish governments, formally embedded in legal acts \nof the legislative institutions both at the UK and the Scottish levels. It was indisputably \nlegal from the domestic point of view (Tierney 2013). And although discussions arose \nabout the future status of Scotland in the EU after the referendum, neither theorists \n(Crawford and Boyle 2013; Edward 2013; Tierney 2013; Avery 2014) nor the Europe -\nan Commission as “guardian of the Treaties” raised the issue of the legality under EU \nlaw. There is no possible doubt that self-determination referenda within the EU is not \nforbidden by EU law and a practice accepted by EU member states. \nThe question of whether a European people without a state may organize democratic \nself-determination process without the consent of the state on whose territory it lives is \nobviously a different issue. None of the three mentioned referenda inside the EU was \norganized with the opposition of the home state. On the other hand, all of the new \nEuropean states that became members of the EU, with the exception of the Czech and \nSlovak Republics, emerged through a self-determination process carried out with the \nopposition of the home state. The question has therefore no clear legal answer based \non the EU’s past practice. Without being able to answer it thoroughly in such a short \npaper, a quick survey of international practice surrounding self-determination referenda \norganized in the past 20 years (Lineira and Cetrà 2015; Mendez and Germann 2016) \nmay be informative. Twenty-six out of 55 independence referenda have been held with -\nout the consent of the parent state. More than half of them (18 out of 26) led to the \nemergence of a new state, which were all later recognized by all EU member states. As \nthe ICJ stated in 2010 in its Kosovo Advisory Opinion, there is no rule of international \nlaw forbidding, in any context—except a specific interdiction by a Security Council \nResolution—, the exercise of the right to self-determination (Anderson 2016).\n19   See UN General Assembly Resolution 2625 (XXV) of 24 October 1970 clearly states: “The establi -\nshment of a sovereign and independent State, the free association or integration with an independent \nState or the emergence into any other political status freely determined by a people constitute modes \nof implementing the right of self-determination by that people.”\n20   “Brussels Treaty on Greenland” of 13 February 1984, JOCE  n° L 29 of 1 February 1985.The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 0818* * *\nTo conclude this paper, let us observe that in the absence of a clear legal answer in \npositive EU law to the existence of a right to national self-determination within the \nEU, a substantial beam of practices, legal provisions, and judicial decisions neverthe -\nless points to the recognition of that right, even if the precise conditions to exercise \nit remain unclear. \nPost-Scriptum \nThis conclusion is not entirely satisfactory, however, because it does not take into ac -\ncount the specific nature of the European integration process, in which the right to \nnational self-determination appears to be a paradox.\nThe European project was initially imagined as an anti-national endeavour (Rougem -\nont and Girardet 1971), or a supranational or post-national one (Scharpf 1996; Haber -\nmas 1998; Bellamy 2003), even though a minority in EU studies literature explains \nEU integration as a strategy for national governments to reinforce their power to the \ndetriment of other national institutions (especially parliaments) (Moravscik 1998). Re -\nquesting the right for European peoples without a state to achieve a national project \nand to become a state through self-determination to be later able to join in this \npost-self-determination process that is the EU—of which they already were, albeit \nincompletely, part—is an unstainable paradox (Chamon and Van der Loo 2014). The \nEU, as a revolutionary post-national polity, is based on—contrary to coexistence and \nminimal interference between sovereign national states under international law—a \nco-determination process based on pooled sovereignties. EU member states have re -\nnounced their sovereign rights to join this new type of polity, not based on national \nself-determination of each European people, but on a co-determination process through \n“an ever closer union among the peoples of Europe.” No single European people exert \nself-determination anymore within the EU, but all European peoples—or at least those \nwho had the historical opportunity to constitute themselves as a nation-state—co-determine \ntheir common future, not as a new European nation, but as an original polity, in which \nnational projects constrained by co-determination co-exist within the EU. Looking to \nEU law for a right to self-determination in the classical sense for peoples who do not \nyet have their own national state is historical nonsense. What European people without \na state are calling for—at least Catalonia and Scotland for the time being—is the pos -\nsibility of fully participating in this co-determination of our common European future. \nAsking them to first become nation states in order to achieve this goal is absurd.The Right to National Self-determination within the EU: a Legal Investigation  |  Working Paper 0819I nevertheless realize that this fundamental leap into post-national Europe is not yet pos -\nsible, as political leaders are not ready to grasp the genuine nature of the already existing \nEU. Political leaders and peoples still believe they can develop their own national project \nin Europe, as the pathetic attempts at Brexit shows. 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