Sovereignty and Identity After Brexit: The European Project Under Siege

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Europe continues to reel from the devastating backfire of British Prime Minister David Cameron’s tragic gambit to consolidate his fractured Conservative Party by way of a referendum almost no one thought could succeed. Cameron, abetted by the Labour Party leader Jeremy Corbyn’s effective neglect, inadvertently galvanized a successful mass protest movement against Britain’s membership in the European Union (EU) and threw the future of the 28-member bloc into a historically grave period of uncertainty. With British voters opting by a nearly 52 to 48 margin in favor of leaving the EU, attention has turned to how the national government implements a plebiscite devoid of legally binding force, and to the legal mechanism by which the United Kingdom (UK) would actually exit under Article 50 of the Lisbon Treaty.[1]

Regardless, the voting results expose a deepening chasm between the pluralist, legalistic, and policy-driven rationalism supporting EU membership and the emotionally provocative politics of identity and the desire for “national sovereignty.” This incoherence, which emerges from the shadow of recession, prolonged economic suffering, and intensified racial antagonism, could prove highly disruptive to transnational law and its foundational values. It demands a new effort to communicate a vision of national identity empowered through supra-national networks just as it forces Europe to reevaluate and salvage its most important post-war political accomplishment.

The enormous immediate costs of “Brexit” have been well documented. European leaders such as Angela Merkel and Francois Hollande have recognized the fundamental shift in the European project inaugurated by Britain’s departure. The economic results alone are daunting, including a precipitous drop for the pound and loss of the country’s AAA credit rating. Britain faces greater dangers than the short-term speculation flesh wound. The uncertainty generated by the negotiation process compounded with the frightening national public debt poses an even greater risk to national markets and creditworthiness. The decision undermines London’s central role in international finance, with major financial institutions such as JP Morgan suggesting that they will have to relocate operations from the UK to another European capital to preserve a gateway to the continent.

Moreover, as suggested by Paul Krugman and others, the political and institutional implications present an even greater challenge. Brexit has “given wings to populism,” and nearly every one of the 27 other EU nations has a sizable revanchist Eurosceptic party or coalition that seeks to follow Britain’s lead. Naturally the market and European leaders are watching closely to see whether the referendum initiates a domino effect in breaking ties with the EU, which would likely end the Union with catastrophic economic and geopolitical consequences.[2]

On a broader level, a serious intellectual threat also strikes at the heart of a liberal 21st century theory of international law and the role of international and supra-national organizations within it. Symbolically the referendum breathes life into the unsavory impulses of racial politics and damages the values of global pluralism. Denying the central part played by racial animus and immigrant fear-mongering in the Brexit production is plainly irresponsible. However, blaming Brexit exclusively on the socially corrosive forces that typically animate reactionary populism—xenophobia, racism, and nativism—tells an incomplete story and provides little guidance beyond generic despair and urbanite snobbery.

Weak post-recession economic performance combined with the specter of immigration turns aggrieved populations against easy cultural targets: as cultural critic Leon Wieseltier has written, it kindles various otherisms “in the myopia of pain.” Of course, base and hateful beliefs influence voter attitudes, and in this case they provided vital grease for the emotional and mass political appeal of more complex concepts such as “sovereignty,” re-empowerment of the national over the perceived excesses of the supra-national, and the return to a quintessentially British “identity.” If this language influenced or at least added intellectual gloss to voter decision-making, it demands a response. Nigel Farage, right wing United Kingdom Independent Party leader and Member of European Parliament, celebrates the “independence” of Britain and the recapturing of its sovereign authority, but Britain—and its people–lose power and dilute their sovereignty by exiting the EU.

The discourse on sovereignty within Europe illustrates the failure of rationalist politics to develop basic participatory norms. “Sovereignty” classically granted states certain prerogatives but remained limited pursuant to international obligations. These obligations appear in customary international law and in treaties, such as the Treaty of Lisbon. Ratifying the EU treaty is a quintessential exercise of sovereignty under the Wimbledon principle, which established that treaty terms constitute part of national sovereignty and properly demarcate the boundaries of sovereign power under international law. In Marc Weller’s phrasing,[3] contemporary states are embedded in an international constitutional order, which both empowers them and constrains their actions through the transfer of a collection of legal competences by institutions and individuals to the organs of the state. Here, though Donald Trump congratulates the British on “taking their country back,” British citizens would effectively lose the voice they currently enjoy via direct representation and voting rights in the European Parliament and indirect franchise through the European Council, while remaining largely subject to the same restraints. Despite the clarion calls against increased “integration” or “federalization,” as a Member State Britain held veto power over acts that would devolve new powers to the EU and had successfully waived itself out of particular aspects of membership, such as the common currency.

This networked conception of sovereignty characterizes Britain’s relationship with the EU in many respects. Consider, for example, membership in the EU’s Common Foreign and Security Policy (CFSP), which is not an over-burdensome commitment of forces but may confer specific regional stability advantages that other treaty arrangements such as the North Atlantic Treaty Organization (NATO) cannot. Participation grants Britain as one of the only two nuclear European states authority and prestige to direct European security policy, particularly in areas such as domestic terrorism, arms trafficking, and organized crime that require transnational cooperation. Or alternatively, look to Britain’s role in the European Union’s most influential institutional export—its regulatory structure in trade and competition law.[4] Outside the EU, British companies will still be subject to European merger regulation and abuse of dominance and cartel investigations under Articles 102 and 101 of the Treaty on the Functioning of the European Union (TFEU), which trigger at certain thresholds of commercial activity or presence in the EU, regardless of company nationality. Ultimately as a member of the single market, the world’s largest economic area, Britain has a much greater influence on the crafting of global standards and regulations than it would alone.

From a judicial perspective, the European Court of Justice (ECJ) has proven to be an engine of European integration, but a shocking percentage of British voters misunderstand its role and jurisdiction: the ECJ does not have general appellate review of Member State courts, nor does it necessarily “trump” Member State constitutions;[5] rather, through preliminary reference it considers cases pertaining specifically to EU directives, regulations, and treaties. Even within this narrow purview, the court’s jurisprudence respects Europe’s pluralism and grants a degree of latitude for the individualized cultural predilections of each Member State.[6]

Britain will continue to participate in international trade, but with less favorable terms than what the EU negotiators will achieve. One can imagine such a scenario arising out of the Transatlantic Trade and Investment Partnership that is currently under negotiation between the United States and the EU. If the UK seeks to remain in the single market—a group that includes other non-EU states such as Norway, Switzerland, and Iceland—she will not achieve any of her social policy goals, such as eliminating the free movement of persons. A British policy exiting the single market as well would result in trying to forge the same commercial relationships but without the benefit of prohibitions on quotas (Article 34), taxes (Article 110), or customs duties (Article 30). These sets of restrictions and legal competences so beloved by free market Thatcherites remain a package deal with the free movement principles. In these important respects, the postmodern “sovereignty” Britain exercises in the EU has empowered and invested its citizens like never before, yet those voices focused only on the “national” community cling to an identity concept fully divorced from the descriptive reality.[7]

What lessons are drawn from this seemingly abrupt failure to translate the complex legal and political norms that govern our society to the search for identity in the 21st century? Regardless of whether Britain’s leaders honor the referendum or find an anti-majoritarian loophole, the fundamental truth is that to survive, leaders committed to the project must emphasize participatory norms among their constituents by reengaging and reeducating Europeans as to the actual operation and functions of the EU. As evidenced from the Commission reports, the EU is aware that it is far less likely citizens would seek “independence” from an institution they understand, control, and invest in; if they viewed participation in the EU as an exercise of sovereignty on the part of the body politic, they would not create the disconnect of asserting sovereignty “from” it. They must endeavor to forge a positive identity that bridges these conceptual gaps and recognizes the interstitial nature of a peaceful post-war Europe.


[1] Article 50 of the Treaty of the European Union (TEU) provides for how a Member State may withdraw from the EU. The article has no real precedent prior to Brexit. It states that a Member State must notify the European Council of its intention to leave the Union, after which it shall have two years to negotiate the withdrawal before the exit formally occurs unless the Council and Member State agree to extend the negotiation period.

[2] In Germany—the EU’s biggest economy and its greatest champion—a serious push to exit seems unlikely, especially considering the continued popularity of Angela Merkel’s pro-EU coalition. For France and the Netherlands, two of the economic union’s founding members, it is a far more open question. French voters overwhelmingly rejected the 2005 constitution, the most forceful anti-EU mass franchise until last Thursday’s referendum. Francois Hollande faces one of the lowest levels of popularity in the history of the fifth republic, and France—unlike the UK–has suffered recently from the devastating November terror attack that remains heavily associated with the free movement principle in the public imagination. A majority of Dutch citizens wish to hold their own referendum on EU membership.

[3]Marc Weller, The Struggle for an International Constitutional Order, Routledge Handbook of International Law (2008).

[4] Anu Bradford makes the argument that while Europe’s traditional geopolitical and military dominance waned in the post-war era, it projects unprecedented global power through the EU’s legal institutions, standardization bodies, and regulatory agencies. Due in part to its market power and sophistication, not only are EU standards in areas such as competition, privacy, and environmental law adopted globally, but communities and territories that lie far outside its jurisdiction have little choice but to accept and accord to EU regulations and policies. “The Brussels Effect,” 107 Northwestern University L. Rev. 1 (2012), http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1081&context=nulr.

[5] The question of judicial supremacy between a national supreme court and the ECJ is a complex question that lies outside the scope of this article. It’s worth noting simply that the doctrine of primacy of EU law, see Internationale Handelsgesellschaft, does not overrule protections provided by Member State constitutions or transfer rights and powers to the EU that lack democratic legitimacy. See Solange I, Solange II. See also here for a discussion of the principle of conferral.

[6] The landmark Omega case is a good illustration of this principle. In 2004, the ECJ ruled that Germany could ban laser tag companies that are accepted in other Member States, an infringement of the free movement of services, in the interest of public order and preserving the fundamental value of human dignity enshrined in the German constitution. Thus, the court permitted a cultural value of particular importance to one nation to prevail. C-36/02 [2004] Omega Spielhallen GmbH.

[7] From a political theory perspective, the reactive effort to force an exclusive fraternal ‘community’ based on the borders of the nation-state—constructed beginning in Western Europe during the dynastic conflicts of the 17th and 18th centuries, in Central and Eastern Europe during the late 19th and early 20th centuries, and in the developing world during the colonial era—may prove difficult to reconcile with today’s globalized world of instantaneous information technology, open trade and flow of human and economic capital, and unparalleled diversity. See Eugen Weber, Peasants into Frenchmen (1976); Frederick Cooper, Africa since 1940 (2002). We may face a distinct creature in the growth of Anglo-American mass national identity movements compared to the imagined communities motivating 19th and 2oth century self-determination projects. See Benedict Anderson, Imagined Communities: Reflections on the Origins and Spread of Nationalism (1983). Of course, self-determination remains an incredibly important legal norm, see Kosovo Advisory Opinion, but it operates on legacy sub-units of previous state formation processes. Indeed, the renewed push by Scottish and Northern Irish leaders for “independence” illustrates the core fallacy of a United Kingdom referendum premised on the integrity of “the nation.”

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