Politicians must act now to lay the foundations for an independent Scotland’s place in Europe, writes Marc Weller
Would an independent Scotland automatically become a member of the EU? The answer to this question will influence the decision of the electorate in the referendum on possible independence. However, none of the diverging views that are being put forward by the political parties are in fact correct.
The first view claims that Scotland would automatically inherit EU membership. It is argued that EU law protects individuals from the arbitrary withdrawal of their nationality. As a denial of continuous EU membership would imply a withdrawal of EU citizenship from the people of an independent Scotland, such a denial could not occur.
This is not true. EU citizenship is expressly subsidiary to national citizenship – it follows nationality. If the home state leaves the Union, EU citizenship and the benefits it brings can be lost. And while the EC/EU legal instruments do not foresee a withdrawal from the Union, it is nevertheless possible for territories to depart. Greenland left the EC in 1985 in the context of its enhanced home rule granted by Denmark.
A further argument is based on fundamental or human rights. International law assigns these to individuals, rather than states. The human rights of individuals should persist if the status of the territory they inhabit changes. However, this doctrine applies only to specialist human rights treaties. It does not ensure continuous membership in an international organization like the EU that is not exclusively or even primarily focused on human rights.
While these points do not deliver automatic EU membership for Scotland, they emphasize the serious responsibility of the authorities in Edinburgh when contemplating independence. A gap in EU membership, and a consequent disruption of the EU citizens’ entitlements of the Scottish population, needs to be avoided at all cost.
The second theory asserts that neither Scotland nor the rest of the UK would retain membership. Both would end up outside of the EU. Ironically, Scotland would then most likely join the Union, whereas the remainder of the UK might have to stay out. It is conceivable that there might not be sufficient support in a referendum on renewed membership in the South.
True, state unions such as federations or confederations dissolve when all or most of their members leave. Hence, the legal identity of Czechoslovakia vanished when Slovakia and the Czech Republic divorced in 1993. Czechoslovakia had in fact been a founder-member of the UN, but both entities were still treated as new states and had to apply afresh for UN membership.
During the 1990s, Serbia claimed to succeed to the rights and membership status of the dissolved Yugoslav federation. But this claim was internationally rejected. Instead Belgrade had to seek UN membership, just like the other former Yugoslav republics.
Only the Russian Federation exceptionally inherited the rights and obligations of the dissolved USSR, in particular its permanent seat in the Security Council. This was due to a special agreement reached among all of the constituent states of the former Soviet Union. The agreement reflected a sense that dominant Russia should inherit the special position in the UN Security Council and the desire to ensure that Moscow alone should emerge as a nuclear power from the dissolution of the union.
Scotland position in the United Kingdom is based in the Act of Union of 1706-7. However, Britain is no state-union. It is a unitary state. Even if devolution had rendered it a federal-type state, its continuous legal identity would not be put into question should only one of its constituent units, Scotland, leave.
Even under this theory, rather like Russia in relation to the USSR, the South would be accepted as the universal heir, leaving Edinburgh to fend for itself outside of the Union.
This leaves the third possibility of secession. This doctrine applied to the recent departures of Eritrea from Ethiopia, Southen Sudan from Sudan, and Kosovo from Serbia, and it would also apply to Scotland. The mother country continues the legal personality of the state, while the seceding entity has to apply anew for membership in international organizations
The EU accession process is complex. The Eastern European candidate states had to demonstrate compliance with what are now 35 hefty chapters of the aquis communautaire—the body of common standards and rules applicable to members. This took a number of years.
Jose Manuel Barroso, the President of the EU Commission, has reportedly confirmed that Scotland would indeed need to apply for membership as a new state. The Spanish Foreign Minister, José Manuel García-Margallo, has added that it would need to ‘join the queue’, apparently having to take its place after Croatia, Serbia and perhaps other states. But these claims are not realistic either.
Obviously, as Graham Avery, Honorary Director-General of the EU Commission has noted, as a part of the EU, Scotland already complies with all aspects of the acquis.
Nevertheless, difficult accession negotiations would still need to be held with Brussels. They would need to address preferential rights for Scotland to its fisheries, opt-outs in relation to particular parts of EU laws, representation and voting rights, and contributions to the budget.
These talks would take place after a referendum favouring independence and before independence is declared.
They would be held in parallel with the equally complex negotiations about the terms of a divorce with Westminster.
During this period, Scotland would need to achieve an unprecedented “accession from within” the EU. This would require the goodwill and diplomatic support of London. Several EU member states strongly oppose secession. Cyprus, Greece, Slovakia, Spain and Romania have frustrated EU recognition of Kosovo to make this point.
They would need to understand that Scotland is a different case. As the UK would accept any decision Scotland may reach on its future, in contrast to Belgrade’s adverse relations with Kosovo, this would not be a precedent in favour of opposed secession.
Hence, Scottish EU membership in the event of secession is definitely not automatic. On the other hand, it should be possible to negotiate a seamless transition towards independence with EU membership that does not disrupt the lives of the people of Scotland. However, such an outcome requires significant preparation and pro-active diplomatic engagement, instead of the present state of confusion.
• Marc Weller is professor of international law and international constitutional studies in the University of Cambridge and director of the Lauterpacht Centre for International Law. He was legal advisor for Kosovo in its independence negotiations, and consultant for the African Union in the pre-referendum negotiations on South Sudan, advisor to Kofi Annan in the present crisis concerning Syria, and served as senior mediation expert of the United Nations. The views expressed are not attributable to any institution or organization.