Scottish Independence: a Question of International Law or of the EU’s “New Legal Order”? (Part II)

Scottish Independence through the Prism of European Union Law

In the previous post, we discussed Professor Crawford and Professor Boyle’s legal opinion on Scottish independence and set down the framework for state continuity, state succession and succession to membership of international organizations. In this post, we turn to the crux of their enquiry: would Scotland have to reapply to join the EU? In a word, their answer is “yes”. However, Crawford and Boyle are at pains to emphasize that this is, in legal terms, unknown territory:

“All this is not to suggest that it is inconceivable for Scotland automatically to be an EU member. The relevant EU organs or Member States might be willing to adjust the usual requirements for membership in the circumstances of Scotland’s case. But that would be a decision for them, probably made on the basis of negotiations; it is not required as a matter of international law, nor, at least on its face, by the EU legal order.” [para.164]

It should be mentioned that, as far as the remainder of the UK is concerned (the “remainder of the UK” following Scottish separation is referred to as “rUK” throughout, to distinguish it from the UK as it currently exists), its continuing membership in the EU would be relatively uncontroversial (without engaging, for the time being, with the far more controversial question of whether the UK intends to remain in the EU at all!) The reduction of their territory would not have any effects on their obligations under EU law, since the definition of territory is a matter for Member States and not for EU law (Case 148/77 Hansen v Hauptzollamt Flensburg, consider also the case of German reunification). The EU Treaties would simply cease to apply to their former territory. The authors do recognize, however, that the UK’s voting rights and its representation in the European Parliament would have to be adjusted to take account of their reduced population.

Returning to Scotland, there is of course no clear precedent for this situation (the independence of Algeria in 1962 and Greenland situation can be distinguished on the facts, see paras.143 et seq) and the Treaties are silent on the question of succession to state membership. Crawford and Boyle, echoing Barroso’s position, deem Article 49 TEU, the legal basis for accession to the EU, to be quite clear on its face – as a new state, it must apply for EU membership in accordance with the requisite procedures and an accession agreement must be ratified by all Member States.

The opinion does not discuss the question of whether Scotland could maintain the Treaty opt-outs that the UK currently enjoys, but simply notes that the Treaty does not contemplate a situation whereby the accession procedures could be varied (and elsewhere, the Commission has made it quite clear that adoption of the acquis is non-negotiable; see also Article 7, Protocol 19 of the Treaties on the Schengen acquis). If the procedure to admit Scotland was to be modified, this would be a political, rather than a legal, concession. Either way, a Treaty amendment would still be necessary to accommodate the increase in membership.

Usefully, the authors note that a legal vacuum – resulting from the Treaties ceasing to apply to Scotland – is unlikely to eventuate, since EU law could continue to apply in Scotland by virtue of domestic law, specifically the European Communities Act 1972.

The Role of European Citizenship

In the final section of their opinion, Crawford and Boyle recognize that their conclusions under public international law might not convince the EU law establishment, which “might be expected to resist allowing part of a current EU Member State to withdraw automatically from the EU, especially insofar as it would affect the individual rights of current EU citizens.” The Court of Justice of the European Union (CJEU), in particular, might attach significance to the role of Union citizenship – if, of course, they ever got to consider the question, which the authors think is unlikely. They proceed to warn the CJEU that any judicial intervention on this subject would be an overreach of their judicial function, “effectively usurp[ing] the role of the Member States in negotiation a political solution” [para.183].

There are essentially two types of objection to the international law analysis, a “light” and a “strong” version, both of which rely on the European citizenship provisions and case-law, and the oft-cited aphorism that “the EU constitutes a new legal order of international law” which counts individuals as well as sovereign states among its subjects, first uttered in the Van Gend en Loos case.

The “light” version takes the position that there is a legal obligation incumbent on the EU and all Member States to negotiate Scottish independence in good faith. The opinion cites the writing of Lane, who in turn refers to the principle of self-determination, a reference which is rightly dismissed as being of little relevance to this situation, since it is generally agreed that self-determination of peoples is to be exercised within the framework of existing states, so long as there is a representative government based on equality and non-discrimination [see para.175; see also Reference re Secession of Quebec].

Crawford and Boyle suggest that the argument that the EU would be bound to negotiate in “good faith”:

“would have to rely on a creative and expansive reading of EU treaty provisions that has no legal precedent. There is no provision that obviously gives rise to such a requirement.” [para.177]

However, there is, arguably, such a provision. Article 50 TEU, introduced by the Treaty of Lisbon, provides for the possibility to withdraw from the EU and imposes an obligation on that state to notify and to negotiate and conclude an agreement governing its withdrawal. Sir David Edward, a considerable authority given his 15 years of experience as the British Judge in Luxembourg, has elaborated a contemporary version of the “good faith” argument by relying on Article 50 TEU and the citizenship provisions.

Sir David argues that while the EU is a creature of international law, it has become “a new legal order”, and consequently:

“the solution to any problem for which the Treaties do not expressly provide must be sought first within the system of the Treaties, including their spirit and general scheme.  Only if the Treaties can provide no answer would one resort to conventional public international law (including doctrines of state succession).”

Article 50 TEU provides that withdrawal shall take place two years after negotiation or notification, time that is necessary to “unravel a complex skein of relationships, liabilities and obligations.” It follows that, in the light of Article 50 and the numerous rights and obligations vested in individuals and

“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.”

He surmises that the Treaty drafters cannot “have intended that there must be prior negotiation in the case of withdrawal but none in the case of separation”. This teleological reading of Article 50 TEU is a convincing one, one which is also advanced by Aidan O’Neill, but which the legal opinion does not seriously address.

O’Neill’s position is portrayed the “radical” or “strong” form of the argument, maintaining that both states should succeed to the EU and that automatic succession is possible (see his posts on the eutopia blog here, here and here). O’Neill relies on the distinct nature of the EU legal order, its primacy and purposive approach to interpretation and the prominent place given to individuals as subjects of EU law. He argues that the nature of EU citizenship rights espoused in Zambranocombined with the holding in Rottman, where the withdrawal of German citizenship was found to fall within the scope of EU law, would lead the CJEU to the conclusion “that Scotland and [the rUK] should each succeed to the UK’s existing membership of the EU, but now as two States rather than as one”. In these matters, the EU law should have primacy over international law and the CJEU should be “the final arbiter on such weighty matters of State(s)”.

Crawford and Boyle dismiss this argument by simply pointing to the contingent and derivative nature of EU citizenship, from which it results that citizens of an independent Scotland would no longer be able to invoke the citizenship provisions. Article 20(1) TFEU provides that citizenship of the Union is “additional to and [shall] not replace national citizenship”. Articles 24 and 25 of the ILC Articles on the Nationality of Natural Persons in Relation to the Succession of States (2000) provide that persons having their place of habitual residence in the successor state will receive the nationality of that state while the predecessor state “shall withdraw its nationality from persons concerned qualified to acquire the nationality of the successor State”. Therefore, persons acquiring Scottish nationality would no longer be UK citizens and therefore, could no longer avail of the protections of Union citizenship.

This is, to my mind, the correct approach: the citizens of an independent Scotland would, albeit regrettably, simply not be citizens of the Union any longer. Moreover, the jump from Rottmann to a conclusion that Scotland should automatically succeed to membership of the EU appears to be a leap too far. I would, in any event, question the pertinence of the Rottmann holding to this situation. While it is characterized as a case concerning the withdrawal of national citizenship rights, one crucial aspect of that case was, in my view, the fact that he would have been left stateless without German citizenship. In that respect, it is different from a situation where the withdrawal of UK, and consequently EU, citizenship would only occur where Scottish citizenship had already been granted and statelessness would not arise.

I do wonder, however, whether the reverse argument could be made: could EU citizens currently resident in Scotland find a cause of action on the ground that the rights acquired under the EU Treaties have been withdrawn? The vested or acquired rights doctrine suggests that a change of sovereignty cannot affect the interests of individuals. Would these EU citizens have any claim against the redefinition of the territory of the EU and therefore the scope of application of EU law?

Conclusion

Given the UK Government’s objectives, the opinion is perhaps less conclusive than it might have hoped: the opinion recognizes that we are simply in unchartered waters and there is no definitive answer as to the legal status of an independent Scotland.

However, the divergence in position between public international law and advocates relying on EU law is particularly marked. The often rocky relationship between EU law and international law is well-known, with the CJEU’s “infidelity” to international law most apparent in the infamous Kadi decision.

This situation, however, is not the place to affirm the “sacrosanct” primacy of EU law over international law nor to vindicate the role of the CJEU. EU law simply has no role in the birth, creation or formation of states – rather, it is an area where the supremacy of EU law simply has to give way to the laws of public international law. Crawford and Boyle succinctly sum this tension up and it is to them that I leave the last word:

“Of course, there might be a distinction between the position in public international law generally and the position in the EU legal order. Public international law (as already discussed) is the proper law for answering questions of state continuity and succession outside the specific context of the EU. Even if the ECJ were to take a different approach, that would not affect the status of the rUK and Scotland generally. It would only affect their position within the EU legal order.” [para.184]

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