INTERNATIONAL LAW ASPECTS OF SCOTTISH INDEPENDENCE - David Edward

INTERNATIONAL LAW ASPECTS
 OF SCOTTISH INDEPENDENCE
        David Edward

PROBLEM OF DEFINITION
• Secession / Separation / ???
• United Kingdom of Great Britain & Northern
  Ireland
• Treaty of Union (1707) Article 1:
  “that the Two Kingdoms of Scotland and England
  shall upon the 1st May next .., and forever after, be
  United into One Kingdom by the name of GREAT
  BRITAIN”

INTERNATIONAL LAW TREATMENT OF
      SECESSION / SEPARATION
• Where a smaller proportion of the State decides to
  secede, the remainder of the State will normally be
  treated as a “continuing State”, and the seceding State
  as a new State.
• The continuing State will succeed to all the Treaty
  rights and obligations of the original State
• The seceding State, if it wishes to continue
  membership of international organisations will have to
  apply for membership.
• Question: whether, or how far, the seceding State will
  continue to be subject to Treaty obligations
• However, this is all dependent on State practice

EXAMPLES
• South Sudan was treated as a new State of UN
• After dissolution of United Arab Republic, both Egypt and
  Syria were treated as continuing States
• After dissolution of Serbia-Montenegro, neither was
  treated by UN as the continuing State, but both were
  accepted by IMF and World Bank
• Kosovo is still not universally recognised as a State
• Czech Republic and Slovakia had to apply to join the Council
  of Europe, but were both treated as continuing States by
  IMF, World Bank, Universal Postal Union and International
  Atomic Energy Organisation
• Former Soviet Republics were asked to “confirm” their
  membership of WIPO

THE E.U. – THE “OFFICIAL” VIEW
• Prodi (President of EU Commission 2004)
  – When a part of the territory of a Member State ceases
    to be part of that state .. the treaties will no longer
    apply to that state
• Barroso (President of the Commission 2012) to
  the same effect
• Van Rumpuy (President of EU Council 2012)
  – Scotland will need to re-apply for EU membership
• UK government opinion from Professors Crawford
  & Boyle to the same effect

THE ALTERNATIVE VIEW
               BASIC PREMISES
• Separation of Scotland from rest of UK (RoUK) will occur
   – As a result of a vote conducted in accordance with democratic
     principles, and
   – In a manner accepted as “constitutional” according to UK
     constitutional Law
• “Yes” vote in the 2014 referendum will not bring about
  immediate separation
• Separation will occur only after a (long) period of
  negotiation as to the terms of separation and as to the
  moment of time when separation will occur
• Until the moment of separation, the United Kingdom as
  such will continue to be the Member State of the EU with
  all treaty rights and obligations

• Relations between the UK (including Scotland)
  and the EU and other Member States are
  governed by the EU Treaties
  – Treaty on European Union (TEU)
  – Treaty on the Functioning of the EU (TFEU)
  – Charter of Fundamental Rights
• Rights and obligations under the Treaties are
  to be determined in the first instance by
  reference to the Treaties

VIENNA CONVENTION ON THE LAW OF
           TREATIES
 ARTICLE 31 (1)
 – A treaty shall be interpreted in good faith in
   accordance with the ordinary meaning to be given
   to the terms of the treaty in their context and in
   light of its object and purpose.

ECJ IN VAN GEND EN LOOS (1963)
• To ascertain whether the provisions of an international
  Treaty extend so far in their effects, it is necessary to
  consider the spirit, the general scheme and the wording of
  those provisions.

• The community constitutes a new legal order of
  international law for the benefit of which the states have
  limited their sovereign rights, albeit within limited fields,
  and the subjects of which comprise not only member states
  but also their nationals. Independently of the legislation of
  member states, Community law therefore not only imposes
  obligations on individuals but is also intended to confer
  upon them rights which become part of their legal heritage.

TEU, Article 2
• The Union is founded on the values of respect
  for human dignity, freedom, democracy,
  equality, the rule of law and respect for
  human rights

TEU Article 4
• 2. The Union shall respect the equality of Member
  States before the Treaties as well as their national
  identities, inherent in their fundamental structures,
  political and constitutional.
• 3. Pursuant to the principle of sincere cooperation, the
  Union and the Member States shall, in full mutual
  respect, assist each other in carrying out tasks which
  flow from the Treaties.
• The Member States shall take any appropriate
  measure, general or particular, to ensure fulfilment of
  the obligations arising out of the Treaties or resulting
  from the acts of the institutions of the Union.

CHARTER OF FUNDAMENTAL RIGHTS
• Article 45(1): Every citizen of the Union has
  the right to move and reside freely within the
  territory of the Member States.
• ECJ in Grzelczyk (2001):
  – 31. Union citizenship is destined to be the
    fundamental status of nationals of the Member
    States, enabling those who find themselves in the
    same situation to enjoy the same treatment in law
    irrespective of their nationality, subject to such
    exceptions as are expressly provided for.

TEU Art. 3(2) &TFEU Art. 26(1)
• The Union shall establish an internal market

• The internal market shall comprise an area
  without internal frontiers in which the free
  movement of goods, persons, services and
  capital is ensured in accordance with the
  provisions of the Treaties

TEU Article 50
• 1. Any Member State may decide to withdraw from the Union
  in accordance with its own constitutional requirements.
• 2. A Member State which decides to withdraw shall notify the
  European Council of its intention … the Union shall negotiate
  and conclude an agreement with that State, setting out the
  arrangements for its withdrawal, taking account of the
  framework for its future relationship with the Union. …
• 3. The Treaties shall cease to apply to the State in question
  from the date of entry into force of the withdrawal agreement
  or, failing that, two years after the notification referred to in
  paragraph 2, unless the European Council, in agreement with
  the Member State concerned, unanimously decides to extend
  this period.

ANALYSIS
• Article 50 expressly provides that withdrawal
  from the EU requires negotiation of the terms of
  withdrawal
• Withdrawal will take effect only on the date
  agreed or two years after notification – but
  certainly not immediately.
• This is evidence of the spirit and general scheme
  of the Treaty, which must be taken into account in
  dealing with a situation with which the Treaty
  does not deal expressly.

• Article 50 requires a period of negotiation
  because withdrawal from the Union would
  involve the unraveling of a highly complex skein
  of budgetary, legal, political, financial,
  commercial and personal relationships, liabilities
  and obligations.
• These relationships, liabilities and obligations are
  multilateral and, in general, reciprocal.
   – The Scots have acquired rights of citizenship and free
     movement of goods, persons, services and capital vis-
     à-vis the rest of the EU.
   – So too have the nationals of other Member States vis-
     à-vis Scotland, its territory, its institutions and its
     people.

• Until the moment of separation, Scotland would
  remain an integral part of the EU;
  – the Scottish people and all EU citizens living in
    Scotland would enjoy all the rights of citizenship and
    free movement; and
  – the same would apply, correspondingly, to all other EU
    citizens and companies in their relations with
    Scotland.
• Examples:
  –   investors in the corporate sector
  –   hundreds of Erasmus and other students,
  –   thousands of migrant workers
  –   fishermen from other Member States operating in
      Scottish waters (the largest sea area of the EU
      whatever the basis of measurement).

THE LEGAL QUESTION
• Can it reasonably be supposed to have been the
  intention of the Treaty-makers, who provided
  expressly for the case of withdrawal, that in the
  case of separation of an existing Member States,
  all these relationships, rights and duties will
  continue until the moment of separation and will
  then, “at the midnight hour” abruptly come to an
  end
• AND that the EU institutions and Member States
  have no obligation whatever to do anything to
  prevent this result?

MY ANSWER
• 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.
• The outcome of such negotiations, unless they failed
  utterly, would be agreed amendment of the existing
  Treaties, not a new Accession Treaty.
• Beyond that, the only certainty is uncertainty!