WHY WITHDRAWAL FROM THE EUROPEAN UNION IS UNDEMOCRATIC
Tore Vincents Olsen and Christian F. Rostbøll
Draft, October 21, 2013
Prepared for presentation at Dansk Selskab for Statskundskabs, Vejle October24-25, 2013
[Please note that this paper is work-in-progress. We are aware that there are many loose ends and
much need for editing. Hopefully, the general thrust of the argument is sufficiently clear to make it
intelligible and possible to comment on.]
I.
Introduction
In Denmark and the UK, conservative politicians have vented the idea that their respective countries
should leave the EU because, they believe, membership is against the national interest. David
Cameron has promised British voters a referendum on EU membership (Davis, 2011; Danmarks
Radio, 2011; Watt, 2013). The Lisbon Treaty grants member states the right to unilateral
withdrawal from the EU, following their own constitutional procedures. Some would argue that a
decision to leave the EU would be perfectly democratic: If the people of a member state through its
democratic procedures determine to leave the EU, why would that not be democratic? In this view,
each member state legitimately and democratically can determine whether it wants to be a member
of the EU. We will contest this claim on the basis of a principle, which says that people whose
status as free and equal is mutually dependent ought to make political decisions that affect their
status together. We argue that the latter is a fundamental democratic principle. Thus, from a
democratic standpoint, it is questionable that leaving the EU could be justified as far as a member
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state’s leaving the EU would violate the democratic rights of EU citizens to influence decisions that
affect and alter their status. We conclude that unilateral and even mutually agreed withdrawal from
the EU cannot be defended on the basis of democratic principles as easily as some believe.
II.
The Case
The Right of Withdrawal
According to article 50(1) in the revised Treaty on the European Union (TEU), ‘Any member state
may decide to withdraw from the European Union in accordance with its own constitutional
provisions’. The withdrawing member state should notify the European Council of its decision and
the Council of Ministers, acting on the basis of qualified majority, should, after obtaining the
consent of the European Parliament, conclude an agreement with the withdrawing state on ‘the
arrangements of withdrawal’ and ‘the framework of its future relationship with the Union’ (art.
50(2)). These formulations suggest that withdrawal implies multilateral agreements, which would
be more in line with a norm of democratic reciprocity or symmetry of democratic rights. But this is
not the case: should no agreement between the withdrawing state and the remaining Union be
reached, the Treaties will ‘cease to apply’ ‘two years after the notification’. It is hence an
unconditional unilateral right to withdraw.
The rationale of the clause is that the member states remain the ‘masters of the treaties’
(Hofmeister, 2010, p. 592). It underlines the equality and sovereignty of states and the right to
national self-determination. As the Lisbon Treaty moves the EU ever closer to (qualified) majority
voting, the previously dominant principle of unanimity and national veto is replaced by a right to
exit (Holberg, 2010, p. 16).
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Article 50 in the TEU is what Daniel Weinstock (2001) calls a ‘coarse-grained’ right to withdraw
because it is almost entirely unconditional. Its only limitation is the two year waiting period, hardly
a long period for managing the intricate economic, legal and institutional issues that would follow
from withdrawal of a state. Weinstock argues for a legal right to secession but for a more finely
grained definition that adds conditions such as supermajorities within the withdrawing unit,
repeated voting on the matter and long waiting periods to make sure that secession is a true and
strong preference in the withdrawing unit and to take out secession as a bargaining chip in ordinary
politics. Article 50 is also coarse-grained because it does not address issues regarding the procedure
for making agreements, the status of withdrawing member state representatives in the interim
period, and the reforms of institutions that would follow withdrawal (Hofmeister, 2010, pp. 593-5).
The Double Status of EU-Citizens
While EU's fundamental freedom(s) of free movement and principles such as non-discrimination on
the basis of nationality were based on the telos of creating an internal market and an integrated
European economy to achieve peace and economic prosperity, the rights have been interpreted to an
increasing degree as protections of important interests of individuals (De Búrca 2011). From article
2 TEU and the now legally binding Charter of Fundamental Rights it is clear that the EU is
committed to protection of fundamental rights.
The concept of EU citizenship introduced in 1992 has undergone a similar development. While
fundamental rights arguably can be introduced paternalistically, or ‘top-down’, the concept of
citizenship refers to individuals not only as subjects of the law - and its (fundamental rights)
protection - but also as its authors. Individuals become the source of law through the democratic
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rights of citizenship. The concept of EU citizenship is part of the fundamental principles of the EU,
and while the Lisbon Treaty also affirms the states as the ‘masters of the treaties’, the ever
increasing power of the European Parliament, more attempts at opening the EU institutions towards
citizens, the citizens' initiative, and the reinforcement of the role of national parliaments in
European politics etc., point towards the commitment of the EU to an ‘active citizenship’. There
should be a direct link between the policies issued in EU and the citizens’ views. Long and unclear
chains of (formal) representation do not suffice (cf. TEU article 9-11).
Crucially, the EU supplies individuals with rights across borders, both as legal subjects and as
citizens. As legal subjects or private individuals, they are able to move to another EU country to
work, study, retire, buy property, make (economic) contracts and receive and supply services and
goods as they see fit, bringing their family with them (or creating a new one). Abroad, they have to
be treated exactly as national citizens with regard to almost all institutions and public goods and
services, and they are entitled to vote in local and European elections. Staying home, EU citizens
can as private individuals avail themselves of goods and services (private and some public) supplied
in other EU countries, and buy property and make contracts there etc. Through national and
European institutions, they can as citizens exercise political influence on political matters that affect
them in a significant manner. The right to withdraw from the EU must be seen against this double
status of EU citizens; the double status of having rights across borders not only as subject to law but
also as the source of law. This double status implies that one’s status as a rights bearer cannot be
changed without one being able to democratically take part in the decision making process in which
this status is changed. EU in principle respects each EU citizen’s 'status as a ruler' across borders
(cf. Brettschneider, 2007, pp. 3, 19).
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Of course, the exact interpretation of the legitimacy basis of the EU will always be disputed (Olsen
2011), and there is no general agreement on which institution is able to deliver the authoritative
interpretation of the European ‘constitutional order’. To be sure, the (dispute about the) exact
interpretation does not determine the validity of this article’s argument. Nonetheless, the above
exposition demonstrates the relevance of the argument for the EU’s own self-understanding, that is,
our argument relates to the EU's ambition to secure the democratic status of EU-citizens.
III.
Democratic Principles, Democratic Procedures and Constituting the Demos
Our question is whether a member state's unilaterally withdrawing from the EU can be defended on
democratic grounds. It might be that some democratic reasons can be given for unilateral
withdrawal, while other democratic reasons can be given for either requiring mutual agreement for
withdrawal – or against any withdrawal. Thus, the more precise question is whether democratic
reasons, on balance, count in favor of the democratic legitimacy of unilateral withdrawal or, rather,
in favor of requiring mutual agreement among all member states for any withdrawal - or against any
withdrawal. The question, as we have posed it, concerns whether democratic reasons will count in
favor of one judgment or the other regarding the democratic legitimacy of withdrawal. Democratic
reason will refer to democratic institutions, democratic criteria, or democratic principles rather than
extra democratic reasons of e.g. efficiency or justice (if the latter is seen as not including democracy
as a matter of political justice). Obviously, everything hinges on what counts as a (good) democratic
reason and the following discussion is aimed at clarifying that question.
Some might think that it is sufficient for a decision to be democratic that it has been made following
procedures that are generally agreed to be democratic, e.g. by representatives elected in free and fair
5
elections or by a referendum. It is implausible, however, to hold that all decisions made following a
democratic method of decision-making should be regarded as democratic and immune from
criticism based on democratic reasons. There are two reasons for this that are relevant for our
discussion. First, if a decision is one that undermines the preconditions for making democratic
decisions in the future, it can hardly be called democratic. For example, a decision to disenfranchise
a large portion of the population or a decision forbidding the minority to agitate for their political
views, even if made following democratic procedures, cannot be called democratic. There are good
and obvious democratic reasons for criticizing such decisions. Second, we must ask who made the
decision or more precisely, who were entitled to participate in the political process that produced
the decision, in order to evaluate its democratic credentials. Most would agree, we surmise, that a
decision made following a democratic method (free and fair elections, majority rule, etc.) would
still fail on democratic terms, if only a small part of the population were entitled to participate, as
e.g. in South Africa under Apartheid (Dahl 1989: 121-22). And most would think that universal
adult suffrage was a democratic improvement compared to adult male suffrage. We can understand
these considered judgments only if we accept that it is not sufficient for a decision to be democratic
that it has been made following democratic procedures. It matters also who has the right to
participate. The two reasons for objecting to judging only in terms of a democracy as a method are
forward-looking and backward-looking, respectively. The first looks forward to the consequences
for democracy in the future, while the second looks backward to the democratic credentials of how
the decision was made, to a democratic criterion of inclusion.
Who should belong to "the people" that is to rule themselves – what is now known as the boundary
question or the question of constituting the demos – has historically been taken for granted and has
been ignored in the history of democratic theory (Dahl 1990: 45ff). Either it has been seen as
6
obvious and hence unproblematic, or it has been seen as a contingent matter decided by force. But if
we are concerned with normative criteria of democratic legitimacy, we cannot rest satisfied with
"might makes right". This is particularly so in the present case when we have a conflict between
different possible demois as the right one to include in making a decision. Some political theorists
have held that democratic theory can tell us only what political procedures count as democratic,
while it cannot tell us who should belong to the demos, that is, who should be included in making
which political decisions (Schumpeter 1975, pp. 243-45; Saunders 2011). It is quite rightly pointed
out that the initial constitution of the demos cannot happen using democratic procedures, for using
democratic procedures presupposes that the demos has already been constituted or delimited. To put
it simply, we cannot vote about who has the right to vote, before we know who has the right to vote.
While this is true, it relies on an understanding of democracy that reduces it to a particular method
of decision-making. It fails to distinguish between fundamental democratic principles and the
institutions or decision making methods that are thought to instantiate these principles (Arrhenius
2012).
In relation to our case, note that even if one thinks no democratic reasons can be given in favor of
constituting the demos one way or the other in a specific situation, this would not mean that
unilateral withdrawal must be accepted on democratic grounds. If democratic theory can say
nothing about the constitution of the demos, then democratic theory cannot say anything about
whether unilateral or mutually agreed withdrawal is most democratic (insofar as this is a question of
who should be included in making the decision). As long as a democratic decision making method
is used, the result must be accepted as democratic. True, members of a potential withdrawing state
might say that it already has a constituted demos that can make a democratic decision, while the EU
lacks such a demos. But they cannot complain, on democratic grounds, if a new demos, composing
7
all EU citizens, is constituted and makes the decision. How could they complain about this? If no
democratic reasons can be given for how to constitute the demos in the first place, no democratic
reasons can be given for favoring one composition of the demos over another. One can refer only to
contingent reasons of history, power and force. We find this result deeply unsatisfactory. If we see
democratic principles as more fundamental than the employment of a democratic method, it will
become clear why the result is unsatisfactory. Indeed, the whole discussion of whether unilateral
withdrawal must be accepted as more democratic than requiring mutual agreement (or even refusing
withdrawal) requires a discussion not only of whether a democratic method is used, but also of who
should be entitled to participate in the political process determining the issue. The backward
looking consideration of how the decision is made can say something about who should decide
about withdrawal, while the forward looking consideration regarding the preconditions of
democracy can say something about what those who are included ought to decide (i.e. whether
withdrawal promotes or diminishes democracy in the future).
The determination of whether it is more democratic that demos A (the demos of a member state) or
another demos B (all EU citizens) makes decision Y (whether A should withdraw from the EU)
requires the existence of a democratic principles that is more fundamental than – and the
justification of – both existing democratic procedures (voting, majority, and the like) and the
constitution of the demos. For the sake of argument, we assume (for now) that both demos A and
demos B have available and equally democratic procedures for making decisions. Now we may go
one step further and say that both demos A and demos B have democratic procedures for making
democratic decisions in relation to their demos, that is, that each demos has democratic procedures
for making decisions for the people who are subject to their decisions. You might say that the latter
addition is superfluous and that, by definition, a democratic procedure is one where a demos
8
imposes rules on itself. We wouldn't call a procedure, where demos A imposes rules on demos B,
even if demos A made the decision following what is usually called a democratic method (equal
voting and majority rule, for example), democratic. But why not? Because democracy is not only
about following democratic procedures but also and just as importantly about how to constitute the
demos. If you grant this, you have granted that democratic theory can say something about how to
constitute the demos.
Identity of rulers and ruled
We have argued that answering our question requires distinguishing fundamental democratic
principles and democratic decision procedures. Moreover, we have suggested that we are brought
into absurdities unless we accept that democratic principles also can inform the question of who
should be included in which decision-making processes, that is, the question of how to constitute
the demos. We want to suggest now that there is a more fundamental democratic principle that
informs both democratic procedures such as the equal vote and majority rule and who should
belong to the demos (cf. Goodin, 2007, pp. 47ff). The discussion above already hints at what this
principle is. If a decision to be democratic must be applied to those who make it, then democracy
seems to imply some idea of identity between rulers and ruled. If demos A, following a democratic
method, makes a decision not for itself but only on behalf of demos B, then we wouldn't call it
democratic. That seems uncontroversial. The German people, through the democratically elected
Reichstag, cannot, democratically, make laws for the Danish people. But what about laws made by
one demos that also subjects or affects people outside this demos? Suppose demos A says, these
laws are made by us and apply to us, hence they are democratic in relation to us. This seems to be
justifiable on the basis of the idea that there must be identity between rulers and ruled. But what if
other people can say, those rules you impose on yourself also apply to us or also affect us? These
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other people, then, rightfully can appeal to a breach of the principle of identity between rulers and
ruled. They can object that even if those people ruling are also ruled (by those rules), not all those
people ruled are ruling.
To say that democracy requires identity between rulers and ruled is clearly very general and might
mean many different things. (We don't mean identity in sense of Carl Schmitt, but that the
composition of the people who are entitled to rule (to vote and to run for office) should be identical
to the composition of those people who are ruled). In the contemporary literature, it is common to
distinguish two different principles that help to specify what it means to be ruled. The first is the allsubjected principle, which says that all those subjected to a rule should have an equal say in its
formulation. Usually, being subjected means being subject to coercive force, as one is to a state's
laws. The second is the all-affected principle, which says that all those who are (relevantly)
affected by a decision should have an equal say in its formulation. There are different versions of
the all-affected principle, depending on how "relevantly affected" is specified. Most commonly, the
all-affected principled is understood as an all-affected interest principle, saying that it is the effect
on your interests that triggers the right to participate (Arrhenius, 2012; Dahl, 1990: 49; Goodin,
2007). The all-subjected and the all-affected principles are often used in order to argue for an
extension of who has a right to participate; for example, it has been argued that would-be
immigrants are also subject to the laws of the state to which they wish to immigrate and, thus, they
should have political rights in relation to that state (Abizadeh 2008). However, the principles need
not be used to further inclusion; thus, it has been suggested that long-term expatriates should be
excluded from the right to vote in the country they have left, because they are not subject to the
laws of that country (López-Guerra, 2005).
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"Perhaps the most common justification given for democracy is that it is essential to the protection
of the general interests of the persons who are subject to the regulations or actions of the officials of
the state" (Dahl, 1989, p. 93). As John Stuart Mill said, "the rights and interests of every or any
person are only secure from being disregarded, when the person interested is himself able, and
habitually disposed, to stand up for them" (Mill, 1991, p. 245). The focus here is on why each
person should have a right to vote in democratic elections and be represented. But note that the idea
that the justification for democracy is protecting interests simultaneously justifies an all-subjected
or an all-affected principle. If the reason I should have a right to vote in democratic elections is that
this is necessary for protecting my interests, then I should have the right to vote in any decision
process that (subject me to a rule that) affects my interests. If democracy is about protecting
interests, there must be identity between those whose interests need protecting and those who can
participate.
If the justification of democracy is protecting interests, it is unclear why we should accept the allsubjected principle, rather than the more expansive all-affected principle. Dahl's formulation,
quoted in the preceding paragraph, assumes an already constituted demos and the existence of a
unified state. But why should we be concerned only with "the protection of the general interests of
the persons who are subject to the regulations or actions of the officials of the state"? What about
the people who are not subjected to the decisions of a state but whose interests are nonetheless
affected by the decisions of the state? Can their interests simply be disregarded? The latter
questions motivate the move from an all-subjected to an all-affected interest principle. For now, we
will not adjudicate between the validity of the two principles, but rather note an important
difference between them. The all-subjected principle "takes the existence of a political unit for
granted. It assumes the state as a primary boundary or threshold for inclusion and exclusion and
11
then argues that all those subjected to political rule within its boundaries ought to have a say in its
making" (Näsström, 2011, p. 117).1 While it is correct that the all-subjected principle takes the
political unit for given, it is less clear that this unit has to be the sovereign state. The all-affected
principle, by contrast, does not take the political unit for given but can be employed to determine
which political units are most appropriate to establish for giving people the opportunity to protect
their interests.
It might be questioned, however, if the best way of understanding the ground of democracy is in
terms of protecting interests. It has been objected, for example, that the focus on affected interests
reduces persons to "moral patients", and that democracy is rather about "moral agents". Democracy
in this view is not about equal satisfaction of interests but rather about respecting persons as agents
capable of deliberation and reasoned choice: "Democracy is essentially a matter of rule by the
people. That is, a matter of their agency" (Saunders, 2011, p. 287). While we agree that grounding
democracy in protection of interests involve too strong a focus on the outputs of political decision
making at the cost of a concern for inputs and agency, we run into (already mentioned) absurdities,
if we say democracy is only about providing opportunities for agency. Democracy is not only about
acting; it is about acting on oneself, as it were. That is, democracy is a matter of people jointly
acting for their own shared purposes. Democracy is also democracy for the people, and not just any
people but the same people who act.
Thus, we need a principle that includes both the dimension of respecting persons as actors and the
dimension of concern for persons as being acted on [cf. Beitz, 1989, pp. 97ff; Rostbøll, 2008, p.
221]. The best way to think about this, we suggest, is to see democracy as, fundamentally, about
1
[This description, however, does not fit Abizadeh's (2008) use of the all-subjected principle.]
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securing persons' standing or status in relation to each other. In this view, democracy is justified
because it constitutes a relationship among persons in which their status as free and equal is
respected. This status is not merely one of being equally free as subject to the laws but a status of
being equally free as participants in making the laws that determine one's status. We will refer to
the fundamental principle of democracy as the principle of affected status. It says that people whose
status is mutually dependent on each other ought to be included in common democratic decision
making. For the status of a person A to be dependent on a person B, means that A's security against
being dominated by (being subject to the arbitrary will of) B depends on a shared, forceful common
will that determines the status of both A and B [Kant, Ripstein, Pettit, Rostbøll 2013]. Before we
go further into this, we need to say something about how the principle of affected status relates to
the normative self-understanding and the institutions of the EU.
We showed earlier that the EU-treaties afford citizens a double status as right bearers and rulers.
Thus, the EU, at least as an aspiration, builds on an idea of respecting citizens both as agents of
democracy and as having their freedom equally protected by law. We also said that the EU affords
EU-citizens such a double status across borders - it is not an ideal that is limited to the internal
workings of the constituent member states. While we find it important that there is an overlap
between the democratic principle that our argument appeals to and the EU's own normative selfunderstanding, the later cannot determine the question we aim to ask. This is the case, inter alia,
because there is in the EU a tension between respecting member states as masters' of the treaties and
the individual and democratic rights the EU secures across borders; a tension, we might say,
between collective rights and individual rights. Indeed, our aim is to show that using a right of
member states (of withdrawal) may conflict with other democratic aspirations of the EU. Thus, we
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must return to the normative argument and further develop the idea that the fundamental democratic
principle is to respect mutually dependent citizens' status as free and equal.
When we refer to the status of a person, we refer to a position she occupies in relation to other
persons.
If democracy is justified with reference to the status it affords citizens, it is because democracy
secures a certain standing to the person, a standing as free and equal, in relation to other persons.
This justification of democracy should be distinguished from instrumental justifications of
democracy that refers to some good that democracy is thought to maximize. One problem with the
instrumental justification of democracy is that it requires that there is some good that we can all
agree on is important to maximize [cf. Christiano]. We believe a stronger justification for
democracy is that it essential for realizing an ideal of relating persons to each other in a way that
respects their status as free and equal.2 This moral basis of democracy cannot only explain why we
ought to make collective decisions following democratic procedures; it can also inform how to
constitute the demos that make democratic decisions. Democratic procedure respects the involved
persons as free and equal insofar as they include them in collective decision-making where each
participates as an equal in giving laws to these same persons. The ideal of securing the status of
being free and equal cannot ignore whose is included in the decision-making. If some persons can
only have their status protected by being included in the decision making, because they are
dependent for their status on others included in the decision-making, they ought also to be included.
2
It has been argued that the all-affected principle has an atomistic foundation and fails to include the public
component of democracy, i.e. that democracy is not only about satisfying individual interests but also about decisions
that have public value (Marchetti 2012, p. 33). While this objection might apply to the all-affected interests principle,
it does not apply to the affected status principle, because the latter is not about interest satisfaction but about a
relational good.
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The ideal of standing in a relation of freedom and equality to others does not require not being
subject to coercive rules. On the contrary, it is an ideal of equal freedom that can be understood
only with reference to, and that can be realized only under, common, coercive laws. Indeed, as Kant
suggests, the principle of equal freedom "and authorization to use coercion … mean one and the
same thing" (Kant, MM 6: 232). This is the case because freedom is a status of being secure in one's
independence from being constrained by another's choice. The coerciveness of law is internal to this
security or assurance against obstructions to freedom under a universal law (cf. Pogge 2012, 77).
The Kantian ideal of equal freedom is usually used to justify the rule of law (the Rechtsstaat) and
hence the equal status of citizens as subject to law. But it can be used also to justify the status of
being authors of law, if the only way in which one can avoid being subject to the arbitrary choice of
others, is by being an equal participant in the making of the law (Rostbøll 2013. The status ideal of
equal freedom can explain, first, why persons who live "side by side" (Kant, MM 6: 307) should
unite under common laws and, second, why these people should make the laws democratically.
So how, more specifically, can the principle of affected status inform our discussion of who should
be included in which decision-making processes? As we have mentioned, there is both a backwardlooking and a forward-looking version of this question. The backward-looking question assumes
that the political unit is given and asks who should be included in the decision-making of this unit.
The answer based on the status view of equal freedom is that this status is respected only if one can
participate in making the rules that determine one's status, otherwise one does not stand in a relation
of freedom and equality to persons on whom one's is dependent for one's status. The forwardlooking question does not take the political unit for given but asks which division of units best
secures the status of equal freedom. From the perspective of the principle of affected status, we do
not ask whether our interests are affected in order to determine who should be included. Rather, we
15
ask whether a common, forceful will is required among us in order to secure our equal freedom. If
persons live so close together that their different purposes are likely to clash, i.e. that they are
mutually dependent on each other for their freedom, then they ought to unite under a common will
and a shared public legal order, they ought to constitute a common demos. [This does not mean that
all decisions have to be made at this highest level, only that some decisions regarding their status as
free and equal has to be made at the level at which people are mutually dependent on other for their
freedom.]
IV.
The Democratic Principle of Affected Status and Withdrawal
How do the above theoretical considerations affect our answer to the question of whether
withdrawal from the EU is democratic or not? We will divide our discussion into backward-looking
and forward-looking considerations. The backward-looking considerations take the political units
for given and bear on whether democratic reasons, on balance, count in favor of leaving the
decision of withdrawal to (a) the demos of a member state (unilateral withdrawal) or (b) to the
demos of the entire EU (multilaterally agreed withdrawal). The forward-looking considerations do
not take the units for given (i.e. eternally fixed) and bear on what substantial decision ought to be
made (whoever makes it), that is, it informs whether withdrawal furthers or hinders the cause of
democracy.
Backward-looking considerations
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Looking backward, the normative, democratic consideration is whether you are included in the
decision making of the political unit that determines your status as a subject and a ruler. The
democratic principle, as we have interpreted it, says that in so far as a political unit determines your
status, you ought to be included, as an equal, in the decision-making processes of that unit. With
regard to our case, the status of EU citizens is determined by more than one unit, most importantly,
the EU and the member state. Thus, even though the backward looking consideration must take the
political unit for given, in the present case the problem is which unit should be taken for given.
Those who think unilateral withdrawal is (the most) democratic might think that the member state
(a nation state) can be taken for given, and that those who are subjected to the laws of the member
state and only they are entitled to determine the fate of the member state. There are two problems
with this argument: (1) The status of the citizens of the member state is not only determined by that
member state but also by the EU. (2) Not only the status of citizens of the member state, who are
included in a unilateral decision to withdraw, but also the status of other EU-citizens is changed by
withdrawal. Let us substantiate these two claims.
Regarding the first claim, what are the implications of that the status of the citizens of the
potentially withdrawing state is determined not only by their member state but also by the EU? The
demos of a member state deciding to withdraw, utilizing the member state's democratic procedures,
decide to get rid of their status as EU citizens. Thereby these people use their status as citizens of
one political unit, say, their status as citizens of the UK, to change their status as citizens of another
political unit, the EU. This is normatively significant, if we understand the status that one has not as
an individual possession, or a benefit one enjoys, but rather as a relation in which one stands to
other people. The status of being a EU-citizen is one, say, British citizens have in relation to other
EU citizens, not only one they have in relation to each other as British citizens. By using democratic
17
procedures that are democratic in relation to the British demos, they change the status of the
members of a different demos (the citizens of the EU), without including the latter in the decision
making process. This is a democratic problem not only for non-British citizens, but also for British
citizens themselves insofar as the latter have another, additional status, which was not respected in
the decision making process. And insofar as a democratic decision, in practice, is always only a
decision by part of the demos, the majority, members of the minority have had their status changed
in a demos where they might have been part of the majority.
Regarding the second claim, the democratic deficit of unilateral withdrawal is even clearer in
relation to other EU-citizens, not part of the demos of the withdrawing state. The status of these
other citizens has changed in relation to the withdrawing state and its citizens, without their
opportunity to have a democratic say. If a member state decided to withdraw from the Union, it
would seriously affect and limit the rights that currently exist across borders in the EU and, thus,
change the legal status and the status as rulers of all EU citizens, not merely the status of members
of the withdrawing state. Ignoring the discussion about the probable content of agreements between
the withdrawing state and the remaining EU, it would mean that EU citizens outside the
withdrawing country would, as private individuals, lose significant rights (to do different things) in
that country. As citizens, they would lose the ability to exert influence on political issues pertaining
to the political system of the withdrawn state. The point is not merely that citizens from other
member states will lose the ability to do certain things they would otherwise be able to do in the
withdrawn state (which might also happen if another foreign country in which one lives changes its
laws) but, rather, that the legal status as rights bearers and co-rulers created by common institutions
is violated or disrespected.
18
Withdrawal implies that decisions, which are now under the authority (competence) of the EU, and
which EU citizens therefore can influence, because of the political rights entailed in their EU
citizenship, will be removed from the EU, as the competence conferred upon the EU reverts to the
withdrawing state. This means that the remaining EU citizens will lose influence on matters which
may affect them in the form of externalities resulting from the political decisions made by the
withdrawn state; or which it may be considered to rightfully belonging to the authority of the EU
and its citizens even though they do not result in any tangible externalities (e.g. the defense of
fundamental EU values). It also means that (what would presumably be) a minority of (EU) citizens
of the withdrawing state, against their will, will lose their ability to influence EU decisions. It will
cancel their democratic rights as EU citizens. Having moved to the withdrawing country, EU
citizens from other countries would be in an uncertain legal situation since their rights are ensured
by European legislation and fundamental principles, especially non-discrimination on the basis of
nationality.
In sum, for EU citizens who are not national citizens of the withdrawing state, withdrawal would
have significant effects in terms of their legal status as bearers of civil and political rights across
borders. EU law and fundamental principles secure in a very important manner ‘the rights of others’
(Benhabib, 2004) in and in relation to individual member states. What is more, EU law and
principles also ensure significant rights to nationals of a potential withdrawing state, both as private
individuals and citizens, that is, rights to do different things in other EU countries than their own
and to exert influence on political matters, which affect their status. Withdrawal would have direct
negative effects on the rights that people possess as private individuals but it would also deprive
(other) people of the democratic right to influence decisions, which affect their status. Hence, the
act of unilateral withdrawal by a member state violates the principle that everyone whose status is
19
determined by a decision ought to be included in making that decision. If we are right that the latter
is a fundamental democratic principle, unilateral withdrawal contravenes a fundamental democratic
principle.
Forward-looking considerations
The fundamental democratic principle of protecting equal freedom can contribute also to our
forward-looking considerations. These considerations concern our aspirations for furthering the
cause of democracy in the future. Regarding the demos or boundary question, we not merely ask if
the decision made by a particular political unit included everyone subject to the decision of that
unit. We ask which decisions ought to be made with regard to constituting the demos in order to
further the ideal that every one achieves or upholds the status of standing in a relation of equal
freedom to others who may threaten that status. In respect to our present case, we ask whether
withdrawal of a member state furthers or limits the security of the status of equal freedom of all EUcitizens.
From the forward-looking perspective, the democratic problem with withdrawal from the EU is that
all EU citizens' ability democratically to influence future decisions that affect their status is
diminished. The EU has contributed to and is part of a process of supranationalization that makes us
all more interdependent, and thus increases the need for being protected in one's status as not being
subject to the arbitrary will another. When a member state withdraws from the EU (unilaterally or
not), the status of all EU citizens will continue to be seriously affected by and dependent on both
EU decisions and decisions made in the withdrawn state. But the citizens whose equal freedom is in
question will have lost some of their ability or power to influence decisions that affects their status.
20
Thus, the democratic ambition to approximate an identity between the status of being a right bearer
and being a ruler has been curtailed, not promoted.
It is important to note that this forward-looking argument does not rely on the premise that
(existing) democratic procedures have been violated but rather on the premise that a fundamental
principle has been violated, a principle that informs both which procedures count as democratic and
which people ought to be included in which decisions – or which political units ought to be
defended or established. Thus, the forward-looking argument concerns what ought to be decided
regarding withdrawal, whoever decides it. And the argument is that withdrawal cannot be defended
on democratic grounds, because it entails (it has the future consequence of) moving us further away
from (rather than closer to) the democratic ideal that the people whose status is mutually
interdependent ought to make decisions together. They ought to make decisions together in order to
secure their freedom from being subject to alien decisions, that is, to be guarded against decisions
regarding their status made by others without including them.
V.
Objections
It may be objected that by way of the Lisbon Treaty a large segment of those EU citizens potentially
affected by withdrawal from the Union already through a democratic procedure (i.e. treaty
ratification) have granted each other the right as citizens of individual member states to withdraw.
After all, democratic procedures generally produce a number of rights which excludes others from
having a say in the activity individuals or groups are allowed to undertake with reference to those
rights, even when those activities affect others' status. Moreover, since they are a result of a
democratic procedure, how could they be undemocratic? Our response is that beyond a certain
21
threshold when some rights are detrimental to future democracy, they cannot be defended with
reference to democracy. Since the (utilization of the) right to withdrawal impair realizing
democratic principles, it cannot be justified on democratic grounds. Withdrawal undermines the EU
as a democratic project that aims at realizing the ideal that people's whose status depends on each
other ought to share democratic procedures.
Another objection to our argument is that the value people ascribe to the rights they have as EU
citizens is not very great and that there is something odd about defending rights that people don’t
really care about.
There are two aspects to this discussion. One concerns whether people’s freedom really is affected.
The other concerns whether people value their rights, including their ability to influence what
affects them. Now, many EU citizens do not utilize their EU citizen rights. For example in 2009
only about 2.4 per cent of EU citizens used their right to free movement and lived in other EU
countries than their own (Vasileva, 2010). Also, voter turnout was only around 43 per cent in the
last European Parliament election (EU27 average). This is not a great problem for our argument.
The fact that one does not use a certain right does not mean that it is not crucial for protecting one’s
freedom. Whether or not a right protects one’s freedom depends on which possibilities one has and
not on which desires one has. Otherwise, we would have to accept that one could become more free
by extinguishing one’s desires (Berlin, 1969, p. xxxviii ff). Thus, the fact that people do not use
rights connected with EU citizenship and European decision making generally does not mean that
losing the rights would not affect their status freedom.
The second aspect of this discussion concerns the possibility that EU citizens value their European
rights very little and much less than their national rights. The withdrawal clause may be seen as an
22
indication of this. Again, reverting to national sovereignty and national political rights only would
entail a diminished ability to influence decisions which affect you and hence diminished political
autonomy. Nonetheless, it might be that some or even many EU citizens do not value their ability to
influence something that affects their status. They cannot, however, defend this position on
democratic grounds, i.e., with reference to the principle that one should have a say in what affects
one’s status. To be more precise, a people can without violating democratic decision-making
procedures make decisions that are detrimental to democracy, but they cannot defend the latter with
reference to democratic principles or on the basis that it promotes democracy.
To sum up, the principle of affected status suggests that it is not democratic to leave the EU. The
fact that European citizens have granted each other a right to unilateral withdrawal does not in itself
make this right or its utilization democratic. Also, the fact that people do not use or think much of
their European rights compared to their national ones, perhaps evidenced with the withdrawal
clause, does not mean that (some of) these rights are not necessary from a democratic point of view.
However, a further objection could be that EU's democratic deficit makes it legitimate for a state to
withdraw because the democratic deficit triggers a remedial right to secession as some theories of
secession suggest (Buchanan 2004, 2008). The democratic deficit would represent a violation of
fundamental democratic rights. In the next section, we briefly address this question and discuss the
related problem of subsidiarity.
EU’s Democratic Deficit and the Right to Withdraw
For a long time the standard critique of the democratic deficit in the EU was that it was dominated
by the executive branch and technocracy and was beyond the proper control of directly elected
parliamentarians (national and European) and the general public (because of lack of European
23
public sphere etc.). Moreover, it supposedly had an inbuilt ‘policy drift’ towards neoliberal policies
directed against the welfare state. However, Andrew Moravcsik (2002) argues that the EU should
be measured by the standard that we usually apply for developed industrial democracies. So
measured there is no democratic deficit: The EU is not a dominating super state with own powers
and an un-checked capability for intervention into European society; the democratic credentials of
the member state governments and the powers of the European Parliament ensure the democratic
input; delegating certain tasks to institutions like the Commission, the ECJ and the ECB, does not
go beyond what is normally deemed legitimate at the national level since it enable these institutions
to reinforce prior negotiated deals at an arm’s length from the fray of normal politics; and there is
no significant ‘race to the bottom’ within the EU due to neoliberal policy bias. Finally, Moravcsik
argues that more political participation from ordinary citizens in EU affairs should not be expected
since the issues with which the EU is dealing generally have low salience and rightfully so because
they are mainly regulatory (following a logic of Pareto optimality) rather than redistributive.
Andreas Føllesdal and Simon Hix (2006) accept much of this argument but reply to Moravcsik that
to meet democratic standards there must be institutionally structured processes in place which give
confidence that the true preferences of citizens have been tracked. This requires an open and
explicit political contestation over competing political programmes. They also deny that EU
policies have no redistributive consequences, making public political contestation of political
programmes all the more pertinent. For us the main point is that Hix and Føllesdal find that
democratic shortcomings are mainly due to a failure among political actors to use the institutional
structures and procedures already in place at the European level to create proper political opposition
and competition between alternative political programmes in the appeal to European voters.
Shortcomings depend less on the institutional structures and procedures themselves (Føllesdal &
24
Hix, 2006, p. 557). Some of the minor changes that Føllesdal and Hix call for in 2006 have been
introduced with the Lisbon Treaty including a procedure which could make the election of the
Commission president more competitive in the future, increasing contestation between different
political programmes.
Given its relatively small size, EU's remaining democratic deficit could hardly trigger a remedial
right to unilateral withdrawal. Moreover, granting and/or using a right to unilateral withdrawal are
not necessarily the appropriate first response to a violation of fundamental democratic rights. The
more appropriate response would be to restore fundamental rights and design the constitutional
order such that infringements become unlikely, for example by including ‘checks and balances,
federalism, a specification of protected rights and judicial review’ (Sunstein, 1991, p. 657), which,
indeed, the EU to a large extent has done.
Regarding local autonomy or subsidiarity a concern could be that the principle of affected status, as
all-affected principles, implies that ‘we should give virtually everyone a vote on virtually
everything virtually everywhere in the world’ (Goodin 2007, p. 64) hence entailing a form of ‘world
government’. However, the application of the principle does not necessarily require a high degree of
centralisation. Many decisions are decomposable, meaning that they can be assigned to sub-systems
without the decisions made there interfere with other subsystems. Moreover, in (con)federal
systems, like the EU, the lower levels are not necessarily directly hierarchically subjected to the
higher authority since the lower levels participate at the higher level decisions (e.g. the Council of
Ministers, national parliaments' subsidiarity procedure) and that some degree of consensus has to be
reached to move a specific issue to a higher or lower level. This is certainly the case in the EU.
More generally, the distribution of competences has to be the subject of an on-going democratic
25
discussion and is most likely to leave a many decisions at the national or local level due to the value
placed on liberty and subsidiarity or because the mutual effects across subsystem boundaries are
considered trivial.
To summarize, there is no convincing case for a remedial right to withdraw unilaterally from the
EU based on EUs alleged democratic deficit. The EU facilitates democratic co-determination across
borders and boundaries in the EU thereby ensuring an approximation to the principle of affected
status. In addition, it is not clear that the first logical response to a democratic deficit in the EU
would be to grant a right to withdrawal. Moreover, the principle of affected status does not
necessarily imply highly centralised government in the EU since decisions are decomposable.
Finally, it follows from the status principle that the EU cannot itself be closed off from outsiders or
evade international political cooperation. The EU should have flexible external boundaries in
relation to who(se voices) should be included in decision and policymaking processes.
VI.
Conclusion
References [Incomplete]
Abizadeh, A. (2002) ‘Does Liberal Democracy Presuppose a Cultural Nation? Four Arguments’
American Political Science Review, Vol. 96, No. 3, pp. 495-509.
Abizadeh, A. (2008) ‘Democratic Theory and Border Coercion. No Right to Unilaterally Control
Your Own Borders’, Political Theory, Vol. 36, No. 1, pp. 37-65.
Berlin, I. (1969) ‘Introduction’, in Four Essays on Liberty. Oxford: Oxford University Press.
26
Bohman, J. (2007) Democracy Across Borders, Cambridge Mass.: MIT Press.
Brettschneider, C. (2007) Democratic Rights: The Substance of Self-Government. Princeton:
Princeton University Press.
Buchanan, (2004) Justice Legitimacy, and Self-Determination: Moral Foundations of International
Law. New York: Oxford University Press.
Buchanan, A. (1995) ‘Secession and Nationalism’, in R.E. Goodin & P. Pettit (eds.) A Companion
To Contemporary Political Philosophy. Oxford: Blackwell Publishers, pp. 586-596 .
Buchanan A. (2008) ‘Secession’, The Stanford Encyclopedia of Philosophy (Fall 2008 Edition),
Edward N. Zalta (ed.), URL =
<http://plato.stanford.edu/archives/fall2008/entries/secession/>.
Buchanan, A. (1998)’ Democracy and Secession’, in M. Moore (ed.), National Self-Determination
and Secession. Oxford: Oxford University Press, pp. 14-33
Copp, D. (1997) ‘Democracy and Communal Self-Determination’ in J. McMahan and R. McKim
(eds) The Morality of Nationalism. New York: Oxford University Press.
Dahl, R.A. (1989) Democracy and Its Critics. New Haven: Yale University Press.
Dahl, R.A. (1990) After the Revolution? Authority in a Good Society, Rev. ed. New Haven: Yale
University Press.
Danmarks Radio (2011) Borgerlige unge er imod EU [Right-Wing Youths are against the EU].
Available from: http://www.dr.dk/Nyheder/Politik/2011/11/21/071040.htm [accessed
19 September 2012].
Davis, D. (2011) We're ready to fight for the nation's future. Daily Mail. Available
from: http://www.dailymail.co.uk/debate/article-2036318/DAVID-DAVIS-Wereready-fight-nations-future.html#ixzz26vL7plAN [accessed 19 September 2010].
27
Dryzek, J. (2006) Deliberative Global Politics: Discourse and Democracy in a Divided World,
Cambridge: Polity.
De Burca, G. (2011) ‘The Evolution of EU Human Rights’, in P. Craig & G. De Burca (eds) The
Evolution of EU Law. Oxford: Oxford University Press, pp. 464-97.
Føllesdal, A. & Hix, S. (2006) ‘Why There Is A Democratic Deficit In The EU: A Response To
Majone And Moravcsik’, JCMS, Vol. 44, No. 3, pp. 533-62.
Goodin, R. (2007) ‘Enfranchising All Affected Interests, and Its Alternatives’, Philosophy and
Public Affairs, Vol. 35, No. 1, pp. 40-68.
Hofmeister, H. (2010) ‘”Should I Stay or Should I Go?” – A Critical Analysis of the Right to
Withdraw From the EU’, European Law Journal, Vol. 16, No. 5, pp. 589-603
Holberg, J. S. (2010) ‘The Treaty of Lisbon – Towards an Ever Closer Union, With a Formal
Withdrawal Procedure’, The Columbia Journal Of European Law Online, Vol. 17, pp.
10-16.
Joerges, C. & Neyer, J. (1997) ‘From International Bargaining to Deliberative Political Processes:
The Constitutionalization of Comitology, Europan Law Journal, Vol. 3, No. 3, pp.
273-99.
Kalypso, Nicolaidis, 2013, European Demoicracy and Its Crisis, JCMS, Vol. 51, No. 2, pp. 351369.
Lechner, S. & Ohr, R. (2011) ‘The Right Of Withdrawal In The Treaty Of Lisbon: A Game
Theoretic Reflection On Different Decision Processes In The EU’, Eur J Law Econ,
Vol. 32, pp. 357-75.
28
Marchetti, R. (2012) 'Models of Global Democracy: In Defence of Cosmos-Federalism", in
Archibugi et al. Global Democracy: Normative and Empirical Perspectives,
Cambridge: Cambridge University Press, pp. 22-46.
Miller, D. (1995) On Nationality, Oxford: Oxford University Press.
Moravcsik, A. (2002) ‘In defence of the “democratic Deficit: reassessing Legitimacy in the
European Union, JCMS, Vol. 40, No. 4, pp. 603-24.
Müller, J.-W. (2008) ‘A European Constitutional Patriotism? The Case Restated.' European Law
Journal, Vol. 14, pp. 542–557.
Näsström, Sophia. 2011. "The Challenge of the All-Affected Principle", Political Studies 59 (1):
116-34.
Olsen, T.V. (2011) The Political Constitution of the EU Citizen Rights Regime, Journal of
European Public Policy, Vol. 18, No. 1, pp. 35-52.
Philpott, D. (1995) ‘In Defense of Self-Determination’, Ethics, Vol. 105, No. 2, pp. 352-385.
Saunders, B. (2011) ‘Defining the Demos’, Politics, Philosophy & Economic, Vol. 11, No. 3, pp.
280-301.
Sunstein, C. (1990) ‘Constitutionalism and Secession’ The University of Chicago Law Review, Vol.
58, No. 2, pp. 633-670.
Vasileva, K. (2010) Foreigners in the EU are Diverse and Largely Younger than the Nationals of
the EU Member States. Statistics in Focus 45/2010. Luxembourg: Eurostat. Available
from: http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-SF-10-045/EN/KSSF-10-045-EN.PDF
Watt, Nicholas 2013 'David Cameron calls for UK exemption from EU's 'ever-closer' union', The
Guardian, 23 January 2013.
29
Weiler, J.H.H., Haltern, U., Mayer, F. (1995) ‘European Democracy and Its Critique’, EUI Working
Paper RSC, 95 (11).
30