By Iris Goldner Lang and Samuel H. Chang
For the past several months, the UK electorate has been engaged in a fierce political debate over a single question: “Should the United Kingdom remain a member of the European Union or leave the European Union?” British voters will head to the polls on Thursday, June 23, 2016, for a referendum on UK membership in the European Union. By now, much ink has been spilled on the political backdrop, the sequence of events preceding the referendum, and its potential effects on the United Kingdom. Yet the decision to hold a referendum also has significant consequences for the other side of the Channel. Independent of its outcome, the referendum is already having visible effects on the functioning of the European Union in the pre-referendum stage. Two crucial consequences in particular can be discerned on the EU side: first, the creation of a political precedent and, second, the aggravation and diversion of energies from the EU’s internal challenges.
Political Precedent
The United Kingdom’s contemplation of leaving the European Union represents an extraordinary occasion against the historic flow of European integration. For the past sixty years, the economic, political, and social advantages of EU membership have been a magnet to European states, transforming the initial European Economic Community of six states into a Union of 28 Member States and 500 million inhabitants. EU enlargement policy has frequently been credited as the Union’s most successful foreign policy, stimulating positive changes in newly acceding countries and deeply affecting the European Union itself. While the UK voted on EEC membership in 1975, the British Government’s present commitment to a referendum marks the first time in EU history that one of its Member States has seriously opened the possibility of leaving the Union. In this sense, the referendum creates a political precedent for other EU Member States.
More importantly, the creation of a political precedent is driven by the unpredictable nature of a referendum and the EU’s response to such uncertainty. In an effort to accommodate Prime Minister Cameron’s concerns and to gain the UK public’s support, EU leaders have agreed to grant several concessions to the United Kingdom. These concessions—which might not have been possible absent the uncertainty of the referendum or the simultaneous crises facing Europe—will take the form of several amendments of existing EU law in the event of a UK vote to remain.
Against this background, there is a well-founded fear that the UK referendum and the Union’s response to it will not only give impetus to anti-EU sentiments across the continent, but that it might also create a political precedent for leaders from other Member States to begin asking for concessions under the threat of leaving the Union. This fear is echoed by European Council President Donald Tusk, who recently expressed his concern that the UK referendum might serve as a “very attractive model for some politicians in Europe to achieve some internal, very egotistic goals.” He further added, “It is not only my intuition. I know in fact that some politicians in Europe are ready to use this political model, to underline that they are really independent towards Brussels and the EU. It is the most popular political melody in some capitals.”
Indeed, one may question the incentives behind existing calls for referenda on EU membership and wonder whether they are motivated by national politicians’ sincere concerns about the long-term interests of their citizens, or whether they are better viewed as short-sighted, populist moves in line with the famous words of Groucho Marx: “Why should I care about future generations? What have they ever done for me?” Hungarian Prime Minister Victor Orban’s announcement of an anti-immigration referendum on EU refugee quotas, which were adopted last fall as legally binding decisions by the Council of the European Union, serves as one example of such developments across Europe. The UK referendum has also prompted discussions about leaving the European Union in the Czech Republic and France. Such debates are likely to continue in other Member States as well.
Aggravation of EU challenges
The second consequence of the Brexit campaign, already visible in the pre-referendum stage, is the delay of addressing certain challenges until after the British vote. This has resulted in the aggravation of the EU’s internal problems and the diversion of its energies away from political solutions. The potential of Brexit is yet another one of the many internal crises the EU has been experiencing in the past decade. European leaders have long pointed to the positive effects of crises on European integration, perhaps the most famous being Jean Monnet’s statement that “Europe will be forged in crises, and will be the sum of the solutions adopted for those crises.”
However, there has been a visible escalation of the magnitude of EU crises in the 21st century, as each new crisis surpasses the preceding one in its complexity and profoundness. The 2005 failure of the Constitutional Treaty, triggered by its rejection at the French and Dutch referenda, marked a constitutional and institutional crisis concerning fundamental disagreement over the Union’s future identity. It also demonstrated the fragility of leaving the European project to a direct public vote. The immediate crisis was eventually resolved by the adoption of the Lisbon Treaty, but its root causes were not addressed, the most prominent being problems in the EU decision-making procedure (including its remoteness from the average EU citizen) and the existence of conflicting motivations among Member States. Likewise the sovereign debt crisis has still not been entirely resolved, while the most recent crisis over the mass influx of refugees into Europe is in full swing, dismantling a number of EU rules, principles, and values. Both the financial and the refugee crises created political and social tensions across Europe and have brought to the surface the problems of inter-state solidarity. Though the refugee influx is the proximate cause of the current crisis, the actual crisis is not about refugees or their numbers, but rather the Union’s inability to respond to the influx in an organized, united, and human rights compliant manner. Thus, the “refugee crisis” might be more aptly described as an EU institutional, political, moral, and humanitarian crisis.
Amidst the ongoing crises, the UK referendum further accentuates the divisions currently existing among Member States. It brings to the spotlight Member States’ inability to speak with one voice, show mutual trust and understanding, or find solutions to mounting problems. The UK referendum has diverted the Union’s energies from existing problems toward discussions related to EU membership and Brexit contingencies. Because the proponents of Brexit have tied the referendum to current EU challenges such as the refugee influx and Greek debt crisis, EU leaders are walking on eggshells in the final months before the referendum as to not exacerbate British public dissatisfaction with the situation in the Union. As a consequence, they have avoided politically contentious actions that may be necessary to reaching stable, definitive solutions. Along with the tensions from Germany’s internal politics, for instance, the UK referendum adds to Member States’ reluctance to discuss Greek debt relief in detail. In other respects, the referendum increases pressures to push forward with difficult stopgap measures such as the politically fraught deal with Turkey. In short, the potential of Brexit comes at the worst possible time in EU history. It sends a signal of insecurity both internally and externally, contributing to the further destabilization of the Union at its most vulnerable moment. Before any ballots are even counted, the referendum itself has already cast a symbolic vote of no confidence in the European project.
Iris Goldner Lang is a John Harvey Gregory Lecturer on World Organization and a 2015-2016 Fulbright Visiting Researcher at Harvard Law School. She is also a Jean Monnet professor of European Union law and UNESCO Chairholder at the University of Zagreb, Faculty of Law.
Samuel H. Chang is a 2016 J.D. candidate at Harvard Law School and an Executive Editor of the Harvard International Law Journal.