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

Monday, 11 February, may prove to be a decisive day in Holyrood’s quest for independence.

David Cameron presented a prelude of sorts on Sunday evening, issuing a statement which proclaimed: “Britain works well. Why break it?” Shortly thereafter, the UK Government announced that it would publish a legal opinion prepared by two eminent international lawyers, Professor James Crawford and Professor Alan Boyle of the Universities of Cambridge and Edinburgh respectively, on the legal aspects arising from Scottish independence. A pre-released summary indicated that the opinion would confirm the position held by the UK Government as well as the President of the European Commission, José Manuel Barroso (expressed in a letter to the House of Lords), according to which an independent Scotland would become a new state in international law and would not “inherit” any of the treaty obligations of the UK, but would instead have to renegotiate and reapply to join international organizations, including the European Union.

The Scottish Government responded quickly by releasing, first thing on Monday morning, a report prepared by the Fiscal Commission Working Group attesting to the economic viability of an independent Scotland. The Working Group, composed of internationally renowned economists including two Nobel Prize winners, recommended that Scotland retain the Sterling and form a monetary and currency union with the rest of the UK under the supervision of the Bank of England, in which Scotland could have an ownership and governance role.

However, given the UK’s recurring refrain and the tone of their Report on “Devolution and the Implications of Scottish Independence”, released later that day, the Working Group’s recommendations and proposal to keep the pound sounded a discordant note. The UK Government’s Report sought to highlight numerous difficulties an independent Scotland would encounter, reiterating that Scotland would no longer enjoy the services of the Bank of England nor those of the security and intelligence agencies; it would have to rebuild numerous public organizations, establish border controls and assume an equitable share in the UK’s national debt and liabilities.

Crawford and Boyle’s legal opinion, “Referendum on the Independence of Scotland – International Law Aspects”, was published in annex to the Report. It is the first time since the Iraq war that the government has made its legal advice public: the “highly unusual move” was seen as an attempt to heap pressure on Scottish Prime Minister Alex Salmond by highlighting the obstacles hindering Scotland’s path to independence.

Crawford and Boyle’s opinion focuses on the status of an independent Scotland in international organizations, concluding that, as a new state, it would have to renegotiate its membership with each organization, including the EU. The opinion is however more nuanced than the maelstrom of headlines (and political reactions) would suggest and it recognizes that this is an area where ad hoc negotiations and political cooperation, rather than international law, may prove determinative

Fittingly, the report concludes by recognising that there may “a distinction between the position in public international law generally and the position in the EU legal order”. However, “public international law is the proper law for answering questions of state continuity and succession outside the specific context of the EU.”[para.184]

This is, in my view, the correct approach. In this first post, I will discuss the first part of Crawford and Boyle’s opinion, which sets down the principles under international law governing the separation and succession of states. Having established this framework, a second post will address the particular issue of accession to the EU and evaluate the opinion in light of contrary arguments based on EU citizenship provisions and Article 50 TEU.

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Crawford and Boyle present three possible legal outcomes of Scottish independence:

  • “reversion” to the pre-1707 Scottish state;
  • the dissolution of the UK giving rise to two entirely new states; or
  • the separation of Scotland from the rest of the UK to become a new state under international law while the remainder of the UK would continue to exist as it had before (the “remainder of the UK” is referred to throughout as “rUK” to distinguish it from the UK as it currently exists).

1. Reversion to Pre-1707 Scotland?

The first two outcomes were quickly discounted. The somewhat peculiar proposal that Scotland could rescind the 1707 instruments which united England and Scotland to create the Kingdom of Great Britain, thus reverting to its pre-1707 legal status prior was deemed unlikely, since in state practice, most situations of reversion followed the illegal annexation of one country by another and generally for periods much shorter than a non-negligible 300 years.

Elsewhere, Northwestern Professor David Scheffer has invoked the notion of reversion in support of the argument that the:

“break up would be viewed as two successor states of equal legitimacy … and in that circumstance both successor States should lay equal claim to the continuation of treaty relations established in the past by the UK. This means continuation for both States” (see his speech of 22 January).

However, there is only one potential – and remote – precedent for such a claim, namely the short lived United Arab Republic, and a closer examination illustrates that it could not be applied by analogy to Scotland. The United Arab Republic (UAR) was created in 1958 by the union of Syria and Egypt. It declared that Syria and Egypt’s existing international treaties and obligations would remain valid within the relevant territory and it was admitted to the UN. Three years later, Syria withdrew from the UAR and regained its former seat at the UN without the need for formal readmission. Meanwhile, Egypt, which retained the name UAR until 1971, also maintained its membership of the UN.

Even if this could be characterised as a case of reversion, it would be of little added value to Scotland since the pre-1707 Scottish state would inherit few treaty obligations and could not claim to be a member of the UN or the EU. Furthermore, Crawford and Boyle suggest that in this unusual case, UAR never in fact became a unitary state but was simply a “loose association whose existence was not inconsistent with the continuing international personality of its constituent units”, which is to say, “Syria’s international personality never ceased to exist”.

2. State Dissolution

The “state dissolution” scenario, whereby the UK would become extinct and two entirely new states would emerge, was equally deemed an unrealistic outcome. There are only two clear examples of state dissolution or dismemberment in practice. In the case of Czechoslovakia, both of the emerging states agreed that Czechoslovakia would cease to exist and that neither would claim to be its continuation. Such an agreement could not be envisaged in the case of “rUK”, which has made it clear that it will not renege on its claim to be the continuation of the UK.

Conversely, in the case of the Socialist Federal Republic of Yugoslavia (SFRY), the Federal Republic of Yugoslavia (which later became Serbia and Montenegro) claimed to be the legal and political continuation of the SFRY, but its claim was rejected by the international community and consequently, the SFRY was considered to have dissolved (see Opinion No.1 of the Badinter Arbitration Commission). Similarly, this example could not be applied to the UK situation, since there is no indication that “rUK’s” claim to continuity would be disputed.

3. Continuity and Succession

Hence, the most likely outcome would be the separation of Scotland from the UK to create an entirely new entity under international law known as the successor state, while “rUK” would continue to exist and would retain the legal identity of the UK, known as the continuator or predecessor state.

The opinion carefully distinguishes between state succession and state continuity.

State succession concerns “a change of sovereignty over a territory”. It has been defined as “the replacement of one State by another in the responsibility for the international relations of territory”. Whether the new successor state is bound by the international obligations, rights and duties that bound the predecessor state is governed by the law of state succession – admittedly an “area of uncertainty and controversy” where “much of the practice is equivocal” and few settled rules have emerged. (Brownlie’s Principles of Public International Law, 2012, p.424).

State continuity denotes a situation where the state continues to exist, notwithstanding sometimes significant changes to its territory and population. In practice, the continuator state is the state which, after separation, retains the majority of the territory and population and substantially the same governmental institutions, although it will ultimately depend on “subjective factors such as state claims and recognition” [para.19].

Numerous examples of state practice abound [see para.53 et seq] but the example of “direct relevance” to the present situation is the creation of the Irish Free State in 1922. Irish independence “was treated just as a change in territory rather than a break in the UK’s continuity” [para.65]. The 1921 Treaty between Great Britain and Ireland indeed “appears to have been premised on the personality of the UK continuing uninterrupted.”

It follows then, that, with 92% of the population, two-thirds of the territory and the principal governmental institutions, “rUK” would be the “continuator state” of the UK and the “the weight of international opinion would favour recognising the rUK as the continuator” [para.70].

State Succession and International Organizations

The main focus of the opinion revolved around the status of the successor state – Scotland – in international organizations: could they concurrently succeed to the UK’s membership along with “rUK”, or would they have to reapply? The Scottish Government have evidently argued in favour of the former, relying on the Vienna Convention on Succession of States in Respect of Treaties 1978, Article 34 of which provides that successor states will continue to be bound by treaties that were in force over the entire territory at the date of succession.

Aside from some (fairly significant) preliminary objections – the UK is not a signatory to the 1978 Convention and Article 34 provoked controversy for departing from established international law and the “clean slate” principle – reliance on this provision is, in any event, precluded by Article 4 of the same Convention, which expressly states that succession to constituent instruments of an international organization is:

“without prejudice to the rules concerning acquisition of membership and without prejudice to any other relevant rules of the organization.”

Thus, “the prevailing view [is] that principles of succession to treaties have no application to membership of international organizations” and will instead “depend on the particular constitution or rules of each organization”. [para.126]

Consequently, there is no “one size fits all” answer we must look at the practice of each individual organization.

The position before the UN is quite clear:

“if a state is a continuator state then its UN membership will continue, whereas a new state must be formally admitted to membership” [para.128].

This follows from the Sixth Committee of the General Assembly’s rules on the membership of “a State entering into international life through the division of a Member State”. Moreover, given the UK’s permanent seat on the Security Council, it would be illogical, not to mention incompatible with the Charter, for two countries to inherit the UK’s membership of the UN.

The ECHR presents a particularly interesting case. On the one hand, the “condition precedent” of membership of the Council of Europe is governed by Article 4 of its Statute, which requires a new state to deposit an instrument of accession to the Secretary General.

Accession to the ECHR itself, however, is a different matter. In the case of Bijelic v Montenegro and Serbia (29 April 2009), the Strasbourg court held that the ECHR remained in force over the territory of a successor state (in this case, Montenegro) at all times, despite independence. It explained:

“given…the principle that fundamental rights protected by international human rights treaties should indeed belong to individuals living in the territory of the State party concerned, notwithstanding its subsequent dissolution or succession … the Court considers that both the Convention and Protocol No. 1 should be deemed as having continuously been in force in respect of Montenegro as of [the date it entered into force in respect of Serbia and Montenegro through to the date of Montenegrin independence] as well as thereafter.”

This is in keeping with the school of thought that human rights treaties will automatically bind successor states, represented by the UN Human Rights Committee’s General Comment No. 26 on the continuity of obligations. Therefore, it would appear that the ECHR will continue to apply to Scotland uninterrupted, although it would have to accede to the Council of Europe as a new member.

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Finally, the Opinion broaches the thorny question of accession to the EU, a topic which I will assess in my next post. While the opinion does not discuss any other international organizations, it is made plain that accession will depend on the rules of each organization: some, like the IMF and World Bank, have in fact accepted that a state may directly succeed to membership if they are satisfied that the necessary requirements are fulfilled (see “State Succession in Treaties” Max Planck Encyclopedia of Public International Law); the WTO, on the other hand, has a complicated process which includes lengthy bilateral market access negotiations and a vote by the WTO Members on the terms of the accession package (a process navigated most recently by Tajikistan who will become the 159th Member on 2 March).

The point to take away from this discussion is that the rules of state succession are not a science in regard to membership in international organizations. This issue will depend on the rules and practice of each organization and will often be determined by negotiation and agreement rather than the operation of law.

 

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