A Quarrel in a Faraway Country?: Scotland, Independence and the EU

Aidan O’Neill QC

Arabella Thorp and Gavin Thompson, researchers in the International Affairs and Defence Section and the Economic Policy and Statistics Section of the House of Commons Library Research have jointly authored – for the benefit of UK Parliamentarians – a short paper entitled Scotland, Independence and the EU. The authors consider the possible legal consequences for the EU and the UK of Scottish independence and state:

“This is a major question in the independence debate, and one to which there is no clear answer. There is no precedent for a devolved part of an EU Member State becoming independent and having to determine its membership of the EU as a separate entity, and the question has given rise to widely different views.”

They note that there are at least three different possibilities under international law:

(i)              Scotland is to be regarded as a wholly new State, with the remaining Union of England Wales and Northern Ireland (EWNI) being treated in international law as a (territorially decreased) continuation of the UK. The authors cite the precedents of the 1947 partition of India and the creation of Pakistan, and of the 1962 translation of Algeria from a series of départements integrated into metropolitan France to an independent State.

(ii)            Scotland and EWNI are each to be regarded as successor States to the divided UK.   The authors refer in this context to the de-merger of the short-lived United Arab Republic (1958-1961) back into its original constituent States of Syria and Egypt

(iii)          neither Scotland or EWNI are to be regarded as successor States to the dissolved UK.   The authors here allude to the birth, in 1993, of two wholly new States, Slovakia and the Czech Republic, from the territory of the former Czechoslovakia.

On the first scenario (which Thorp and Thompson term “continuation and secession”) EWNI as the “continuing UK” would retain the UK’s pre-secession treaty obligations and its membership of international organisations, including the EU and NATO, the Council of Europe, the UN and the IMF.  Scotland would start with a blank slate in terms of treaty rights and obligations, and would have to apply to be admitted in its own right as a new member of all and any international organisations.

On the second scenario (which they call “separation”) Scotland and EWNI would each succeed to the UK’s existing international commitments, and would each automatically accede to the international organisations of which the UK was a member, but now as two States rather than as one.

On the third scenario (which the authors describe as “dissolution”) neither Scotland and EWNI would succeed to any of the UK’s international obligations or memberships. Both States, newly independent of each other, would have to sign anew any treaties they wished to be bound by, and enter into negotiations with any international organisations they wished to be members of.

Of course, as the precedents of the break-up of the former USSR and the break-down of the former Yugoslavia show, the reality is likely to be more complex and one which may change over time. In international politics, just as much as international law, context is everything. Thus, some States and international organisations may choose to recognise EWNI as the “continuing UK”, or as the sole successor State to the UK.  Others might prefer to hold both EWNI and Scotland to the UK’s prior obligations and memberships.  And yet others could seek to take advantage of what they would characterise as the “dissolution” of the UK to escape the international obligations formerly owed to it, and/or to declare the UK’s previous membership of international organisations to be void.  This is, in a sense, where international law runs out and international Realpolitik takes over.  Everything depends on the particular terms of constitutions of international organisations, the extent of international recognition and the degree to which an international consensus is reached as to the status to be accorded to an independent Scotland and/or to a continuing UK shorn of its northern territories.

But what of the EU?  According to the Court of Justice of the European Union (the CJEU), the EU differs from other international organisations in being “based on the rule of law, inasmuch as neither the Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.” The Luxembourg Court has continually stressed the distinctiveness of the EU legal order from, and its primacy over, other systems of public international law, including the UN Charter, noting as long ago as 1964 that:

“By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply.    By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.”

From the perspective of the Court of Justice, EU law is an overarching supranational legal order binding on and enforced against the Member States. Membership of the EU may be likened to a form of international citizenship for nations. Just as the citizen cannot select obligations once citizenship has been accorded, so Member States may not reject Treaty obligations which prove uncongenial.  And EU law – unlike general public international law – also imposes obligations and confers rights directly on individuals.  Article 20(1) of the Treaty on the Functioning of the European Union (“TFEU”) re-asserts the concept of EU citizenship, first created in the 1992 Maastricht Treaty. The status of EU citizen is automatically afforded to “every person holding the nationality of a Member State” though “citizenship of the Union shall be additional to and not replace national citizenship”.  However, in Zambrano v Office national de l’emploi (ONEm) the CJEU Grand Chamber claimed that “citizenship of the Union is intended to be the fundamental status of nationals of the Member States. … In these circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.”  While the conferral on individuals of rights associated with national citizenship remains wholly within the exercise of the sovereign power of the Member States, the CJEU has held that the purported withdrawal of a Member State of national citizenship rights or status once conferred may bring matters within the ambit of EU law. Thus in Rottmann v Bavaria the Grand Chamber of the CJEU found that EU citizenship required a Member State to exercise its powers to deprive or withdraw an individual’s nationality compatibly with the principles of EU law. The fact that such issues fell centrally within the legal competence of the Member States did not, in the view of the Grand Chamber, preclude the concurrent application of EU law in this area. Because the exercise of that Member State power against its own nationals also directly affected the rights conferred on that Member State’s national qua EU citizen, the matter was held to fall within the jurisdiction of the CJEU as the ultimate guardian of the EU citizen’s EU law rights.

Further, the EU Charter of Fundamental Rights now has the same legal value as the Treaties (Article 6(1) Treaty on European Union). The opening recitals to the Charter’s preamble are in the following terms (emphasis added):

“The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.”

How do those considerations impact upon the question as to the effect, as a matter of EU law, of Scottish independence on the UK’s membership of the EU ? I would suggest that rather than analyse the matter from the classic viewpoint of public international law – which recognizes only States and international organisations are the subject and object of international rights and obligations – EU law requires one to look at the issue from the viewpoint of the individual EU citizen.

Seen from that angle, the question to ask is whether the CJEU would consider that the fact that Scotland became independent required that all (or any portion) of the previous UK citizenry thereby be deprived of their acquired rights as EU citizens?  Given the CJEU’s high theology of the primacy of EU law, and of EU citizenship as being “the fundamental status of nationals of the Member States”, it is suggested that the most likely position that the Luxembourg court would take, if faced with the question of Scottish independence, would be the second scenario – “separation”, as outlined by Thorp and Thompson above.  That is to say that the CJEU would rule that Scotland and EWNI should each succeed to the UK’s existing membership of the EU, but now as two States rather than as one.  Such a ruling by the Court would affirm the primacy of EU law over national and international law, confirm the role of the CJEU as the final arbiter on such weighty matters of State(s), and be presented as EU law re-connecting with, and protecting the acquired rights of, individual EU citizens.

The very form and structure of the EU Treaties might also lead the CJEU to refuse to countenance the possibility of any form of automatic secession from the EU, whether by the splitting of a Member State into two or more international persons or by any other mechanism not expressly provided for in the Treaties.The EU Treaties have been concluded for an unlimited period (see Article 53 TEU).  Indeed, until the insertion of a new Article 50 TEU by the 2007 Lisbon Treaty, the Treaties contained no provision for the secession or unilateral withdrawal of Member States from the EU.  Before that, a State or part thereof might leave the EU not by unilateral act, but only after negotiation and agreement; thus, in 1985, Greenland left the EU after formal amendment of the Treaty. Article 50(3) TEU now provides that the Treaties shall cease to apply to a Member State from the date of entry into force of any withdrawal agreement; or failing which, two years from the date of notification of withdrawal has formally been given by the Member State to the European Council. In sum, a Member State can now lawfully get out of the EU, but only by timeously and expressly applying so to do.

So, contrary perhaps to the as yet unexpressed hopes of some UK Eurosceptics, Scottish independence is unlikely to provide either Scotland or the rest of the UK with a “get out of (EU-) gaol free” card. But the implications for the UK’s other international obligations, relations and memberships, would remain to be determined should Scotland ever leave the (British) Union.

11 thoughts on “A Quarrel in a Faraway Country?: Scotland, Independence and the EU

  1. Very interesting piece. Much the most persuasively argued thing I’ve seen on the topic (and no reference to the Vienna Convention)

    I wonder if you could offer a view on whether Scotland would inherit the EU existing rights and obligations (including the derogations, for example in relation to economic and moentary union).

  2. A very interesting piece, that is vitally important in the referendum debate.

    I’m interested in whether any guarantee (perhaps through an Advisory Opinion, although the ECJ may reject this) could be given of what would happen. This would certainly allow a more informed vote in the Referendum.

  3. This seems in keeping with both Stephen Noon’s assertion that EU citizenship is becoming the fundamental status for nation state membership of the EU (http://stephennoon.blogspot.com/2011/12/20-years-out-of-date.html) and the EU lawyer who told the French press association that Scotland and rUK would likely both be seen as successor states (http://www.google.com/hostednews/afp/article/ALeqM5iajSMJN37uamGND6TquhcLqsJTkQ?docId=CNG.d5034f37cebe7fb3262d88d351279af2.161).

    It’s articles such as these (and your own) which should be getting prominence in the debate, rather than the ill-informed diatribes that usually appear in the media.

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