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.