Scotland leaving the UK poses major legal headaches for Scotland, Westminster and the EU.
On the 15th October 2012, the Scottish Government and the UK Government signed the “Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland”. Since then, there has been an intensification of the discussion as to the merits of Scottish independence.
I will confess at the outset that I believe the Union should remain but I recognise the Scottish people can go their own way if they choose. I will also confess, as an aspiring lawyer who is very interested in International Relations, the theoretical underpinnings as to what status a territorial unit has, interests me just as much as how it acts- Why is it that some nations are recognised as states and others are not?
Rather helpfully, the UK Government has released the first of its ‘Scotland analysis’ series, in line with an announcement made to the UK Parliament last June. It is based on the independent conclusions of Professor James Crawford and Professor Alan Boyle, two preeminent international law scholars. It focuses on the international law framework and the questions that would follow independence. This article is a study of that document and what it says about each side’s competing views on the legal mechanism of Scottish independence.
At its most basic, you don’t need that much to be a state. As reflected by Danny Wallace’s ‘How to start your own country’ BBC TV program a few years ago, all you need a permanent population and territory, a Government and the ability to enter into relations with other states. This is laid out in Article 1 of the Montevideo Convention of 1933.
He still failed though, as he did not claim his ‘territory’ (i.e. his flat) was distinct from that of the UK. More to the point, even if he made such a claim, I’m not sure there would have been a large queue of nations waiting to set up an embassy in his bathroom. This goes to prove the point- statehood is as much about political reality as it is international law. Anyone in doubt should investigate the Kosovan Declaration of Independence and the statehood claims of South Ossetia and Abkhazia.
WHAT BECOMES OF SCOTLAND? AND OF THE UK?
Thankfully, Scotland is none of those places. But it is currently a constituent part of the UK. A key question becomes then, what would Scotland be if it left? Another would be, what becomes of the UK?
The Scottish Government position is clear. First Minister of Scotland, Alex Salmond, stated in a BBC interview with Andrew Neil in March 2012 that “Scotland would be a successor state. One of two successor states.” (The other being the UK.) This gives the impression that both the UK and an independent Scotland would be on the same footing. There is no doubt Mr Salmond used this word deliberately, and in my view unhelpfully. Deputy First Minister Nicola Sturgeon appears to share this view as she said in oral evidence to the Foreign Affairs Select Committee (so far uncorrected it must be said,) that an independent Scotland would “inherit treaty obligations.”
Professor Crawford and Professor Boyle write in their Annex to the Scottish Analysis report that there is a fundamental difference between the concept of “state continuity” and “state succession.” State continuity, they note, exists when the same state continues to exist notwithstanding changes in population and territory, if it is “substantially” the same. That describes the UK post Scottish independence as England, Wales and Northern Ireland account for 92% of the population and 68% of the land mass, not to mention most Governmental institutions.
State succession is more complex. To begin with, it assumes the creation of a new state, created within the confines of International Law. It then focuses on the consequences of a change in sovereignty. A “new” state following the transfer of sovereignty is a “successor” state.
It is established international practice that there is nearly always a continuing state. For example, when Singapore left Malaysia to form a new state in 1965, Malaysia remained as before. In 2011, when Southern Sudan gained independence, Sudan carried on as the continuator state. There is no serious individual who suggests that Scotland could be the sole continuator state.
There can logically only be one continuator state. If there were two, how would an independent Scotland be constitutionally different from what it is now? This is why Alex Salmond is so keen to describe the UK as a potential “successor state”. For political reasons, it benefits him to state this as it means he can claim that both sides come out of the Independence process with the same status. They don’t. England, Wales and Northern Ireland continue as the UK while it is Scotland that is something new and different i.e. a new state.
Another factor to be born in mind here is that if England, Wales and Northern Ireland do not collectively continue to be the UK, then what Scottish independence would have de facto (and probably de jure) done is dissolve the UK. However, there is no mandate from the peoples of England, Wales or Northern Ireland to do this and the Scottish Government does not have the power to do it unilaterally.
It is for this reason that the case of the 1993 dissolution of Czechoslovakia offers little aid to Mr Salmond or Ms Sturgeon- there both Czechs and the Slovaks wanted to dissolve the state and had a mandate to do so. This is why Czechoslovakia ceased to be. There is no such mandate from the peoples of England, Wales and Scotland in this case.
While on the subject of mandates, a further point must be made. The Scottish Government, despite agreeing that there would be no pre-negotiations in advance of the referendum, is now pushing for “technical discussions.” The nature of these remains unclear and the UK government has rejected such calls as they recognise they no mandate to conduct them.
This is because of the inherent way Scotland is governed i.e. from both Westminster and Holyrood. Therefore, before an independence vote, the UK government is obliged to consider the interests of all peoples in the UK including the Scottish. If the Scottish government win an independence vote, the UK Government would have to consider the interests of only the people of England, Wales and Northern Ireland in negotiating the terms upon which the Scottish leave. In matters where these are zero sum, for example in apportioning the national debt, it is absurd to claim that it would be possible for the UK government to change who it represents in these discussions part way through them.
DOES THE LEGAL POSITION MATTER?
It must be recognised that expert opinion on this issue is not settled. Nevertheless, the overwhelming body of opinion supports the UK Governments view that Scotland would be a new state. It seems that the Scottish Government’s view about the status of Scotland post independence, as espoused by Ms Sturgeon, is that “when you have an agreed consensual constitutional process for Scotland becoming independent… we would not have these things settled not by law but by political discussion.”
Most people agree that it would be easy for a new Scotland to join the UN. A more interesting case comes about with the EU. Theoretically, if Scotland were a new nation they could have to reapply to the EU, with all members having to agree to their membership. The President of the EU Commission Jose Manuel Barroso stated that this would likely be the case in a BBC Hardtalk interview in December last year. This could mean that Scotland had to accept the Euro or the Schengen travel area, with consequences for its relationship with the UK. It is recognised by everyone that the Treaty on the Functioning on the European Union is silent on the issue of whether a successor state to an existing EU member is “born into” the EU.
Notwithstanding the fact that leading proponents of Scottish independence do not consider Scotland a new successor state per se, they do argue that the negotiation of the terms of Scotland’s continuing membership would take place from within the EU. This is because they would take place after a referendum, but before formal independence i.e. when they are still part of the UK. Assuming the Westminster government lets them use UK institutions for the purpose, they are correct. (They will presumably not negotiate on behalf of a Scotland which is to be independent shortly afterwards.) To this extent, Ms Sturgeon’s view is vindicated, although she is possibly too optimistic in her view that Scotland will largely be able to secure an extension to the status quo. This is since it seems that the commission is committed to treating Scotland as a new state, although there is scope to vary the terms of membership since they are coming from the so far unique position of already being in the EU, albeit under different political auspices.
Taking the two points together then, in law and in terms of historic state practice, it seems the world would treat Scotland as a new nation. However, at least in terms of their relationship with the EU, with some skillful Scottish negotiation, labels of new or old, successor or continuator may in the end be a distinction without a practical difference.
Matt McCoig- Lees has an MA in Terrorism and Security Studies, receiving a Distinction in Legal Practice. His extended essay for his GDL was on the issue of Kosovan Independence. He tweets (mostly about football) as @MattMccoig-Lees