INTERNATIONAL LAW ASPECTS
OF SCOTTISH INDEPENDENCE
David Edward
PROBLEM OF DEFINITION
• Secession / Separation / ???
• United Kingdom of Great Britain & Northern
Ireland
• Treaty of Union (1707) Article 1:
“that the Two Kingdoms of Scotland and England
shall upon the 1st May next .., and forever after, be
United into One Kingdom by the name of GREAT
BRITAIN”
INTERNATIONAL LAW TREATMENT OF
SECESSION / SEPARATION
• Where a smaller proportion of the State decides to
secede, the remainder of the State will normally be
treated as a “continuing State”, and the seceding State
as a new State.
• The continuing State will succeed to all the Treaty
rights and obligations of the original State
• The seceding State, if it wishes to continue
membership of international organisations will have to
apply for membership.
• Question: whether, or how far, the seceding State will
continue to be subject to Treaty obligations
• However, this is all dependent on State practice
EXAMPLES
• South Sudan was treated as a new State of UN
• After dissolution of United Arab Republic, both Egypt and
Syria were treated as continuing States
• After dissolution of Serbia-Montenegro, neither was
treated by UN as the continuing State, but both were
accepted by IMF and World Bank
• Kosovo is still not universally recognised as a State
• Czech Republic and Slovakia had to apply to join the Council
of Europe, but were both treated as continuing States by
IMF, World Bank, Universal Postal Union and International
Atomic Energy Organisation
• Former Soviet Republics were asked to “confirm” their
membership of WIPO
THE E.U. – THE “OFFICIAL” VIEW
• Prodi (President of EU Commission 2004)
– When a part of the territory of a Member State ceases
to be part of that state .. the treaties will no longer
apply to that state
• Barroso (President of the Commission 2012) to
the same effect
• Van Rumpuy (President of EU Council 2012)
– Scotland will need to re-apply for EU membership
• UK government opinion from Professors Crawford
& Boyle to the same effect
THE ALTERNATIVE VIEW
BASIC PREMISES
• Separation of Scotland from rest of UK (RoUK) will occur
– As a result of a vote conducted in accordance with democratic
principles, and
– In a manner accepted as “constitutional” according to UK
constitutional Law
• “Yes” vote in the 2014 referendum will not bring about
immediate separation
• Separation will occur only after a (long) period of
negotiation as to the terms of separation and as to the
moment of time when separation will occur
• Until the moment of separation, the United Kingdom as
such will continue to be the Member State of the EU with
all treaty rights and obligations
• Relations between the UK (including Scotland)
and the EU and other Member States are
governed by the EU Treaties
– Treaty on European Union (TEU)
– Treaty on the Functioning of the EU (TFEU)
– Charter of Fundamental Rights
• Rights and obligations under the Treaties are
to be determined in the first instance by
reference to the Treaties
VIENNA CONVENTION ON THE LAW OF
TREATIES
ARTICLE 31 (1)
– A treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in
light of its object and purpose.
ECJ IN VAN GEND EN LOOS (1963)
• To ascertain whether the provisions of an international
Treaty extend so far in their effects, it is necessary to
consider the spirit, the general scheme and the wording of
those provisions.
• The community constitutes a new legal order of
international law for the benefit of which the states have
limited their sovereign rights, albeit within limited fields,
and the subjects of which comprise not only member states
but also their nationals. Independently of the legislation of
member states, Community law therefore not only imposes
obligations on individuals but is also intended to confer
upon them rights which become part of their legal heritage.
TEU, Article 2
• The Union is founded on the values of respect
for human dignity, freedom, democracy,
equality, the rule of law and respect for
human rights
TEU Article 4
• 2. The Union shall respect the equality of Member
States before the Treaties as well as their national
identities, inherent in their fundamental structures,
political and constitutional.
• 3. Pursuant to the principle of sincere cooperation, the
Union and the Member States shall, in full mutual
respect, assist each other in carrying out tasks which
flow from the Treaties.
• The Member States shall take any appropriate
measure, general or particular, to ensure fulfilment of
the obligations arising out of the Treaties or resulting
from the acts of the institutions of the Union.
CHARTER OF FUNDAMENTAL RIGHTS
• Article 45(1): Every citizen of the Union has
the right to move and reside freely within the
territory of the Member States.
• ECJ in Grzelczyk (2001):
– 31. Union citizenship is destined to be the
fundamental status of nationals of the Member
States, enabling those who find themselves in the
same situation to enjoy the same treatment in law
irrespective of their nationality, subject to such
exceptions as are expressly provided for.
TEU Art. 3(2) &TFEU Art. 26(1)
• The Union shall establish an internal market
• The internal market shall comprise an area
without internal frontiers in which the free
movement of goods, persons, services and
capital is ensured in accordance with the
provisions of the Treaties
TEU Article 50
• 1. Any Member State may decide to withdraw from the Union
in accordance with its own constitutional requirements.
• 2. A Member State which decides to withdraw shall notify the
European Council of its intention … the Union shall negotiate
and conclude an agreement with that State, setting out the
arrangements for its withdrawal, taking account of the
framework for its future relationship with the Union. …
• 3. The Treaties shall cease to apply to the State in question
from the date of entry into force of the withdrawal agreement
or, failing that, two years after the notification referred to in
paragraph 2, unless the European Council, in agreement with
the Member State concerned, unanimously decides to extend
this period.
ANALYSIS
• Article 50 expressly provides that withdrawal
from the EU requires negotiation of the terms of
withdrawal
• Withdrawal will take effect only on the date
agreed or two years after notification – but
certainly not immediately.
• This is evidence of the spirit and general scheme
of the Treaty, which must be taken into account in
dealing with a situation with which the Treaty
does not deal expressly.
• Article 50 requires a period of negotiation
because withdrawal from the Union would
involve the unraveling of a highly complex skein
of budgetary, legal, political, financial,
commercial and personal relationships, liabilities
and obligations.
• These relationships, liabilities and obligations are
multilateral and, in general, reciprocal.
– The Scots have acquired rights of citizenship and free
movement of goods, persons, services and capital visà-vis the rest of the EU.
– So too have the nationals of other Member States visà-vis Scotland, its territory, its institutions and its
people.
• Until the moment of separation, Scotland would
remain an integral part of the EU;
– the Scottish people and all EU citizens living in
Scotland would enjoy all the rights of citizenship and
free movement; and
– the same would apply, correspondingly, to all other EU
citizens and companies in their relations with
Scotland.
• Examples:
–
–
–
–
investors in the corporate sector
hundreds of Erasmus and other students,
thousands of migrant workers
fishermen from other Member States operating in
Scottish waters (the largest sea area of the EU
whatever the basis of measurement).
THE LEGAL QUESTION
• Can it reasonably be supposed to have been the
intention of the Treaty-makers, who provided
expressly for the case of withdrawal, that in the
case of separation of an existing Member States,
all these relationships, rights and duties will
continue until the moment of separation and will
then, “at the midnight hour” abruptly come to an
end
• AND that the EU institutions and Member States
have no obligation whatever to do anything to
prevent this result?
MY ANSWER
• In accordance with their obligations of good faith,
sincere cooperation and solidarity, the EU institutions
and all the Member States (including the UK as
existing), would be obliged to enter into negotiations,
before separation took effect, to determine the future
relationship within the EU of the separate parts of the
former UK and the other Member States.
• The outcome of such negotiations, unless they failed
utterly, would be agreed amendment of the existing
Treaties, not a new Accession Treaty.
• Beyond that, the only certainty is uncertainty!