International Political and Legal Implications of Scottish Independence - David Scheffer
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International Political and Legal Implications of Scottish Independence David Scheffer Working Papers m 2013:01
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The University of Glasgow, charity number SC004401Working Papers m 2013:01 International Political and Legal Implications of Scottish Independence David Scheffer February 2013
Adam Smith Research Foundation . Working Papers Series Acknowledgements An earlier version of this paper was delivered by the author at the University of Glasgow, Scotland, on 22 January 2013 in its Security and an Independent Scotland lecture series. Professor Scheffer’s views in this paper are solely his own and do not necessarily reflect the view of any organization to which he is affiliated. He wishes to thank Amanda Leese, a law student at Northwestern University School of Law, for her research assistance and Visiting Assistant Professor Caroline Kaeb at Northwestern Law for her review and advice regarding this paper. All rights reserved by the author. No part of this paper may be republished quoted without the express permission of the author. About the author Professor David Scheffer is Mayer Brown/Robert A. Helman Professor of Law and Director, Center for International Human Rights, Northwestern University School of Law, Chicago, Illinois. 2
International Political and Legal Implications of Scottish
Independence
M
y late colleague at Northwestern University School of Law, Professor Ian MacNeil, was the
46th Chief of the MacNeil Clan. His Kisimul Castle was granted to Historic Scotland in 2000
and his estate on the island of Barra was transferred to the Scottish Government in 2003.
Professor MacNeil, whose clan motto is “Victory or Death,” was a persistent advocate of Scottish
independence within our law school walls in Chicago and habitually referred to “William the usurper.”
When I joined the faculty at Northwestern Law in 2005, I quickly found fierce Scottish blood flowing
through the halls, and it reminded me of an earlier time in my life, one that remains relevant for
contemporary realities.
Almost four decades ago I wrote in The Harvard of North Sea Oil.” I had spent September 1974 on
Political Review: “To visit Scotland today is to witness buses and trains throughout Scotland, with the heather
a nation convulsed by the throes of modernization. transforming gloriously before my eyes, including an
Caught between the lost prosperity of the industrial extraordinary rail journey from Inverness to Kyle of
revolution and the sudden wealth of North Sea Lochalsh, interviewing Members of Parliament, young
oil, Scotland is a land fixated upon change. Old SNP politicians, oil executives, and scholars about
industrial structures and dismal economic statistics the rising tide of Scottish nationalism and the pull of
are being surpassed by technological breakthroughs North Sea oil. A year later, in late 1975, while at Oxford
in oil exploration and falling unemployment rates. In studying law I wrote in The Nation magazine that,
the course of one year, 1974, Scottish politics has “Devolution means that a single act of Parliament will
emerged from centuries of stagnation to become the restructure British democracy without constitutionally
most innovative regional phenomenon in Western mandating what is basically a politically motivated
Europe. Two British elections, in February and October, hodgepodge of government by appeasement… .
revolutionized not only the entire spectrum of politics in The British have lost themselves in the devolution
Scotland, but they laid the foundation for the possible maze. Devolution poses so many hypothetical
re-emergence of a country subsumed since 1707. uncertainties and dangers that it seriously threatens
The possibility of independence from Great Britain is the stability of the existing political system. Once the
no longer a laughing matter. Pressure to disentangle Scottish National Party gains a majority in the Scottish
politico-economic centralization from London has Assembly (a predictable certainty), it will not accept
guaranteed the Scots certain political upheaval for
years to come. In even the most remote areas of
Scotland, the talk is of change. Scots who have been
isolated all their lives in backward heather country now
bicker over the siting of oil-platform construction sites.
Never in its history has Scotland been in such ‘civil’
turmoil. By the close of this decade, the home of the
kilt promises to be a significantly different nation from
what it was only a year ago.”
I wrote those words at Harvard University, where I
was a student writing my senior thesis on “Processes
of Modernization in Scotland: The Political Economy
3Adam Smith Research Foundation . Working Papers Series
responsibility without power… . Without a modern skeptically in the halls of policy-making. Scotland’s past,
constitution that specifies the divisions of government, present, and future are sui generis and that fact alone
provides for a bill of rights, and establishes a legal makes an enormous difference in how law and politics
alternative to the sovereignty of Parliament, the United pragmatically join in coming months to chart a pathway
Kingdom is embracing an ambiguous and unbalanced either to a state of continued devolution of political
scheme of democracy that will fuel the fires of and economic power within the United Kingdom or to
separatism.” And so it has. a state of independence for Scotland apart from the
United Kingdom.
Shortly thereafter, during the summers of 1976 and
1977, I labored in London for the General Counsel If there were ever a debatable area of law to examine
of Phillips Petroleum Europe-Africa on tort liability publicly, this is it. International law issues bear greatly
and joint venture issues arising in its North Sea oil upon any upheaval of State sovereignty, but in the
explorations, and witnessed up close the reality of end political factors will shape the legal parameters
North Sea oil. Aside from my abiding interest in self- of the quest for Scottish independence. Politicians will
determination, however, this is my first opportunity to do what they must to reflect the will of the people and
return to a passion I once held and now reaffirm for the international law will be so instructed and influenced
fate of Scotland. when they do.
I ask you, somewhat remarkably, will we, two years The most important principle regarding the
from now following the referendum, witness a legal implications of Scottish independence is
significantly different nation from what it is today? that while nothing in international law prevents
Will we observe a nation on a certain path towards Scottish independence, nothing in international
restored sovereignty, independence, and economic law or European Union Law is certain about the
prosperity? Surely, there are many different views consequences of Scottish independence. This is not
about that question. terra firma. It is an exercise that should draw upon both
the heritage of a distant sovereignty and the pragmatic
The modern exercise of self-determination has realities of modernization.
advanced far beyond what most would have predicted
decades ago. The Scotland Act of 1998 created the The fate of Scotland under international law rests on
Scottish Executive and Scottish Parliament as central the realities of Scotland’s unique history of union with
pillars of devolution. In 2011, the Scottish National the remainder of the United Kingdom since 1707, of
Party won a majority of seats in the Scottish Parliament the United Kingdom’s membership and role in the
and First Minister Alex Salmond assumed greater European Union and the Security Council of the United
power at the head of the Scottish Government and Nations—facts that deeply intertwine Scotland with the
continued the Scottish National Party’s advocacy for fate of the United Kingdom before those organizations,
independence. In October 2012, British Prime Minister and of the complex of treaties in which the United
David Cameron and First Minister Salmond signed Kingdom is a party—the number (14,000) and diverse
the Edinburgh agreement setting up a referendum on character are such that determining the role of
Scottish independence that will be held in late 2014. Scotland in those treaties as independence unfolds
For decades North Sea oil has generated significant will be no easy formula.
financial resources for the British Government, of
which Scotland receives a percentage that has been But every one of these tough issues, and so many
deemed inadequate by the Scottish Government. more, can be resolved through a combination
of smart diplomacy by and political negotiations
I have read a great deal in recent months about the between Holyrood and London and with the family of
drive for Scottish independence and the views and governments and institutions comprising the European
assessments of many scholars, lawyers, and politicians Union and, with singular importance, the U.N. Security
about what the law may pronounce and what politics Council. While law will have its role to play in the
may dictate. I certainly do not intend on these pages months and years ahead, Scottish independence,
to provide the definitive ruling on what international if that is indeed what emerges from the referendum
law requires if the Scottish people vote “yes” for vote, will be a high-stakes political endeavor of
independence in 2014. Frankly, anyone who pretends to unprecedented risks and opportunities. International
know precisely what international law mandates under law will inform every step of the way, but political
these fairly unique circumstances should be viewed negotiations and diplomacy will dictate the outcome.
4International Political and Legal Implications of Scottish Independence . Scheffer
The uncertainties, indeed flexibility, of international law that have rapidly emerged in the last two decades
in the Scottish experiment with modern governance following the dissolution of the Soviet Union and the
nonetheless will be grounded in at least seven former Yugoslavia. These standards present no real
areas of inquiry, including: Scotland’s Right of difficulty for Scotland and will be examined more
Self-Determination, Recognition of an Independent thoroughly later. So there should be little controversy
Scotland, State and Treaty Succession, The European over Scotland’s capabilities to exercise, successfully,
Union, International Organizations, NATO, and Law the standards set for modern expressions of
of the Sea. Note that I take the liberty of referencing self-determination.
a United Kingdom that one day may be without
Scotland as a constituent part as the “remainder The right of self-determination, enshrined in the 1966
of the United Kingdom,” or “rUK.” I realize others International Covenants on Civil and Political Rights
prefer other formulations, including just sticking (ICCPR)12 and on Economic, Social, and Cultural
with the “United Kingdom.” But I have to distinguish Rights (ICESCR),13 as well as the U.N. Charter and in
between the United Kingdom today and what might numerous UN resolutions over the decades,14 creates
result if Scotland achieves independence, so that the foundation upon which much else follows. But
we have clarity in our discussion without suggesting one should interpret this right using a modern frame
prejudicially any particular formulation. of reference and not the decolonization theories and
practices of the past century. I would part ways with
such legal scholars as the late Antonio Cassese,
I. Scotland’s Right of Self-Determination
whom I knew well, worked with, and deeply respected,
First, the right of self-determination is a very powerful but who held a rather narrow and anachronistic
core principle in both human rights law and the view of self-determination, one that was grounded
broader field of international law; it is a right that must in the primacy of sustaining national cohesion
not be debilitated by dated presumptions of its true following decolonization. Scotland is not a case of
character in the modern world. The legal principle decolonization and certainly not one of simple “internal
of self-determination has deeply influenced the self-determination.”15 That constitutes an entirely
devolution era of Scottish politics and it can have a unsatisfactory description.
profound impact on the quest for independence.
For Scotland represents a fresh manifestation of
The right of self-determination has been long held to be modern self-determination, evolving step-by-step
a jus cogens principle under international law. Scotland through stages of sophisticated and politically
is one of the most dynamic laboratories in the world for dynamic devolution to the doorstep of a popular
the modern expression of that principle and how it will referendum. Whatever benefits accrue to Scotland
be defined for the 21st Century. Following decades of from exercising the jus cogens right of self-
evolving theory and practice of devolution, which is one determination, they should be recognized as such.
of the more pragmatic expressions of self-determination However, this also means that considerable power
of our time, the democratic expression of the free will of resides in the people and thus much rests upon the
the Scottish people in a referendum for independence projected 2014 referendum and its result. This will
held in 2014 should fulfill the most ideal formulation have an impact on the prospects for recognition of
for self-determination in the post-colonial world. The an independent Scotland by foreign nations and
Scottish experience has almost nothing to do with international organizations as well.
colonialism and the understanding of self-determination
during the 20th century following either World War I
and the Versailles Treaty or the post-World War II era of
decolonization.10
Scotland’s endeavor is a very modern form of self-
determination with deep historical roots reaching back
to its own sovereign nationhood and yet centered on
what I have described elsewhere as sub-state self-
determination, only in this unique case the “sub-state”
was once the sovereign nation of Scotland prior to
the Treaty of Union in 1707.11 The exercise of this
right normally would need to fulfill certain standards
5Adam Smith Research Foundation . Working Papers Series
As noted, Scotland, as a modern manifestation of the the devolution movement has been the internal self-
principle of self-determination, is an example of sub- determination moment for Scotland. This embodies
state self-determination, which embraces devolution the concept that the people have the right to
and yet is defined by a historical union of formerly meaningful participation in the political process. Only
independent nations now confronting separation that through such participation could people choose their
restores their original sovereignties. Twenty years own social order and form of government—thus fully
ago, in my co-authored book, Self-Determination in exercising a right to internal self-determination. The
the New World Order, my co-authors and I wrote that, Scotland Act of 1998 and the creation and operation
“‘Sub-state’ self-determination describes the attempt of the Scottish Executive and Parliament are signal
of a group within an existing state to break off and indicators of such internal self-determination.
form a new state or to achieve a greater degree of
political or cultural autonomy within the existing state. “External self-determination” means that people have
[Footnote 5: We avoid using more common terms the right to choose their own sovereignty—that is, to
such as ‘secessionist’ or ‘separatist’ self-determination be free from external coercion or alien domination.
to emphasize that a sub-state movement may not President Woodrow Wilson embraced this notion
seek full independence and that self-determination when, in identifying American war aims in 1917, he
claims can often be resolved with steps short of spoke of upholding “the liberty, the self-government,
full independence.] Sub-state self-determination and the undictated development of all peoples…. No
movements may be based on ethnic, geographic, people must be forced under sovereignty under which
historical, or economic factors. They include only it does not wish to live. No territory must change hands
claims by groups concentrated in a particular except for the purpose of securing those who inhabit it
geographic area; claims of dispersed peoples are a fair chance of life and liberty.”20
treated in a separate category.”16 At the time, 1992,
with respect to the United Kingdom, we identified But Scotland is greatly distinguished from the
Northern Ireland, Scotland, and Wales as examples decolonization concept of self-determination that
of sub-state self-determination movements within dominated primarily the post-World War II landscape
the United Kingdom, obviously of varied degrees of for several decades. It has moved far beyond that,
strength and practical relevance.17 which is why I have long identified Scotland with
sub-state self-determination as it moved through
My co-authors and I further wrote that, “Sub- devolution and now stands at the precipice of full-
state claims often have been reasonably met by scale independence. The novel feature of the Scottish
federalism. Francophone movements in Canada, experience is that one is dealing primarily with a
Tamil movements in India, and Ibo movements in dual-state historical phenomenon, of two states joined
Nigeria have been contained—albeit with occasional in 1707 and now on the verge of potentially splitting
eruptions—within federal structural bargains. For apart. The sub-state of Scotland actually is the former
many years, the same could have been said for Tamil independent state of Scotland, of more than three
claims in Sri Lanka or Albanian claims in the Serbian centuries past, reasserting its full sovereignty. There is
province of Kosovo in Yugoslavia. Once the federal no rule of international law preventing that restoration
bargains were broken…in the mid-1950s in the case of sovereignty through peaceful means and within the
of Sri Lanka and, more recently, by Serbian president context of modern self-determination theory. Thus the
Slobodan Milosevic in the case of Yugoslavia, basis for and legitimacy of the referendum of 2014 is
the sub-state claims focused on demands for full well established.
independence.”18 Although Tamil sub-nationalism has
been thwarted, Kosovo today stands as a de facto
II. Recognition of an Independent
and perhaps by now de jure independent nation,
recognized as such by more than 90 countries,
Scotland
including the United Kingdom and 21 other European In the event the Scottish people vote in the affirmative
Union states.19 for independence in the 2014 referendum, there
should be a strategy in place for ultimate recognition
Scotland has experienced both the classical formula of an independent Scotland by foreign governments.
of internal self-determination and is moving relatively That strategy should include Scottish pledges on
quickly now towards a modern expression of external a number of good governance factors normally
self-determination, but it is doing so based upon its expected of new governments and states. Prior
largely sui generis character. In conventional terms, consultation with foreign governments about Scottish
6International Political and Legal Implications of Scottish Independence . Scheffer
commitments to core principles of good governance independence. International law consists of
should facilitate rapid recognition of an independent both a large body of customary norms (that
Scotland if and when it is formally achieved, perhaps in the view of many scholars automatically
as early as 2016.21 would bind any newly emerging state) and of
numerous treaties and conventions, some of
Scottish emissaries should be laying the ground which may have complicated outcomes with
work through a coordinated plan to ensure that two successor States. Therefore, the Scottish
once independence is on the horizon following an pledge will need to be specific with respect to
affirmative referendum vote, if that indeed occurs, what codified international law will be endorsed
key foreign governments recognize both the state and comprehensive enough to guarantee the
and government of Scotland as a sovereign unity rights and obligations found in customary
in one step. One could embrace, for pragmatic international law.
reasons, periods of de facto recognition of Scottish
independence similar to Kosovo prior to de jure c). Inviolability of Borders. Scotland should
recognition, and there are historical examples of explicitly recognize and respect existing
this tactic.22 But Holyrood should strive for obtaining international boundaries and internal borders
de jure recognition with the fewest complications dividing Scotland and England, both on land
following independence. The recognition formula and at sea, and of course the territorial sea
should be manageable to negotiate, with the Scottish demarcations with Norway and the remainder
envoy pledging that an independent Scotland is of the United Kingdom. The territorial sea
going the extra distance to meet modern conditions boundary in the North Sea between Scotland
for recognition that have emerged during the last two and rUK will be subject to negotiation, which I
decades. also examine below, but as long as there is a
peaceful negotiation or adjudication process
I take the liberty to draw upon some of the underway, that should suffice for recognition
conditionality that my co-authors and I proposed 20 purposes.
years ago in connection with the break-up of the Soviet
Union and of Yugoslavia, which admittedly are two d). Non-Use of Force. The “peace-loving”
very different scenarios from the Scotland experience. condition of Article 4(1) of the U.N. Charter is
But they provide a useful back-drop to what Scotland easily embraced by an independent Scotland.
can easily satisfy, thus facilitating rapid recognition of But there could be some utility, in laying the
its independence and timely admission to the United groundwork for rapid recognition by major
Nations. These criteria for transition to independent governments, to go a bit further with Scotland’s
statehood are as follows: pledge. The Scottish National Party already
has staked its foreign policy on a non-nuclear
a). U.N. Standards of Admission. Pursuant to weapons future24 and that could be freshly
Article 4(1) of the U.N. Charter, the standards articulated, although it may require a pragmatic
for admission of a state to the United Nations caveat regarding the immediate future of British
require that the state be “peace-loving,” nuclear submarines at Faslane. Beyond that,
accept the obligations in the U.N. Charter, however, Scotland could pledge, 1) that it will
and be “able and willing to carry out these not seek to use force to settle any boundary
obligations.”23 Scotland so qualifies and could
not be plausibly challenged on those criteria at
the United Nations.
b). Adherence to International Law. I will have
more to examine about this when discussing
the law of succession of states below, but
under this condition Scotland would pledge to
adhere to the general principles of international
law. In addition, Scotland could commit to
upholding the specific international legal
obligations of the predecessor United Kingdom
that logically carry over with Scotland’s
7Adam Smith Research Foundation . Working Papers Series
dispute or to resolve an irredentist claim, and it means as freedom of the press and assembly. In
will resolve such disputes by peaceful means order to ensure rights for all peoples, the government
including, if necessary, submitting the matter should enact limits on the right of the police to arrest
to mediation, conciliation, arbitration, or the people and to hold them without public charges or
International Court of Justice; 2) to adhere a trial. Such rights and limitations already are well
to the Nuclear Non-Proliferation Treaty as a recognized in Scottish law.28 The real challenge for
non-nuclear weapons state once the situation constitution-drafting in Scotland is to envisage what
with Faslane and British nuclear-armed might be required beyond what the Scottish people
submarines is satisfactorily resolved, and that will naturally determine is reflective of and thus should
could take time; and 3) to accept limits on be incorporated from existing rights under Scottish law
the size of conventional military forces that and European Union law.
are consistent both with self-defense and
NATO membership if indeed Scotland wishes In January 2013, First Minister Alex Salmond
to remain part of NATO; and 4) to commit to articulated the need to consider, in the context
resolve disputes by peaceful means, to use of Scotland’s Constitution, “fundamental human
force only in self-defense or as part of an action concerns, the key economic, social and environmental
of collective security (including NATO and U.N. needs of every citizen and the responsibilities of state
peacekeeping operations), and to comply with and citizen towards each other.”29 He referenced
the procedural requirements of the U.N. Charter the right to education, the rights of the homeless,
and Article 5 of the NATO Treaty to confront a constitutional ban on the possession of nuclear
aggression by other states.25 weapons, and the use of Scottish armed forces and
what constitutional safeguards should be established
e). Peaceful Settlement of Disputes. Scotland for the use of Scottish troops.30
should commit to peaceful settlement of
international disputes. It should consider Although the First Minister’s proposal has provoked
joining, at the appropriate time, relevant responses from some who view the proposed rights
arbitration conventions and submitting to the and duties as too constraining on the Scottish
compulsory jurisdiction of the International Government following independence,31 they are not
Court of Justice.26 particularly provocative. From a comparative point of
view, economic, social, environmental, and indeed
f). Constitutional Democracy. The security concerns are reflected in constitutions around
Scottish Government is well on the way to the world in modern times. For example, environmental
demonstrating its adherence to fundamental rights and duties provisions appear in many
tenets of a modern constitutional democracy. constitutions in addition to roadmaps for implementing
The Scottish National Party introduced basic such rights, as with the constitutions of India,32
principles for a Constitution in 2002 and Poland,33 Argentina,34 and Ghana.35 The South African
the Scottish Government elaborated on its Constitution guarantees everyone the “right to have
desired methodology in February 2013.27 access to adequate housing.”36 It also provides the
There are several basic constitutional elements right to have access to health care services, sufficient
that Scottish law and European Union law food and water, and social security.37
address in one form or another, but not within
a Scottish or, for that matter, United Kingdom In India, the constitutional nod to “directive principles
constitutional framework. of state policy” (Part IV of the Indian Constitution)
at first was interpreted as it reads, namely, “The
In its totality, the constitution of Scotland must provide provisions contained in this Part shall not be enforced
protection for the rights of individuals and of minority by any court, but the principles therein laid down
groups and protect them from arbitrary governmental are nevertheless fundamental in the governance of
and police action. Periodic free elections, of course, the country and it shall be the duty of the State to
are a cornerstone of constitutional democracy. So too apply these principles in making laws.”38 Article 39
is guaranteeing the right of political dissent. People elaborates this concept by stating that, “The State
must have the right, free from the fear of arrest, to shall, in particular, direct its policy towards securing”
express their opposition to the government and its adequate means of livelihood, equal pay for equal
policies and actions. They must have the ability to work for both men and women, the health and
communicate these views to others through such strength of workers, both men and women, and that
8International Political and Legal Implications of Scottish Independence . Scheffer
children are protected against exploitation and moral democracy in Scotland should be a powerful tool in
and material abandonment.39 Article 41 of the Indian the nation’s recognition strategy.
Constitution provides that, “The State shall, within
the limits of its economic capacity and development
III. State and Treaty Succession
[important qualifiers, no doubt], make effective
provision for securing the right to work, to education International law is, in essence, both a journey through
and to public assistance in cases of unemployment, history and a leap towards a vision for the future.
old age, sickness and disablement, and in other cases Scotland and its quest for independence is Exhibit A.
of undeserved want.”40
While it is tempting to discover customary international
The Supreme Court of India, in an important line law that would confirm immutable rules, there is not
of cases41 has begun to transform some of these enough content to that customary law to address the
so-called “directive principles” into constitutionally peculiarities of Scotland. So one must proceed very
protected rights and duties.42 But the concept of cautiously when speaking of customary international
India’s “directive principles” is one that should not be law, particularly when its content remains subject to
ignored in the drafting of the Scottish Constitution as conflicting views.46 In that context, the law of state
they can provide a political bridge to the incorporation succession is hardly settled47 and involves modern
of these additional categories of rights and duties into evolutionary trends that will be greatly informed by the
a constitution. Scottish example. Particularly in the realm of treaty law,
both bilateral and multilateral, the fate of Scotland’s
Further, an independent Scotland’s presumed ties to the treaties currently binding the United
continued participation in the European Convention Kingdom is uncertain but also susceptible to a great
on Human Rights43 and the International Covenant deal of pragmatic reformulation in the years ahead.
on Economic, Social, and Cultural Rights,44 where a
broad range of rights are well-known and increasingly The two legal procedures of state succession
established now, would provide added momentum and treaty succession will be perhaps the most
and legitimacy to the proposals tabled by First Minister complex endeavor of any serious bid for Scottish
Salmond. Such concepts found in the International independence. In my view, contemporary application
Covenant on Economic, Social and Cultural Rights of legal principles in both fields of succession points
as “progressive realization” and “appropriate steps” to the following conclusions: While the remainder of
and “appropriate means” can be applied to national the United Kingdom of 57.4 million citizens would
constitutional law as well, so that the skeptical view be larger than Scotland of 5.2 million citizens, the
fearful of automaticity of state obligations for such fundamental premise of Scottish independence
rights and duties is addressed realistically within the is to regain the sovereignty of pre-1707. Thus the
constitutional text. break-up should be viewed as two successor States
of equal legitimacy—not size, wealth, or power, but
It likely will not be possible to finalize the Scottish legitimacy—and in that circumstance both successor
Constitution prior to independence, as one would States should lay equal claim to the continuation of
assume a constitutional convention for that purpose treaty relations established in the past by the United
would be convened immediately after independence, Kingdom. This means a continuation for both States,
as has First Minister Salmond has suggested.45 But and not some static notion of United Kingdom treaty
Scotland would want to entice diplomatic recognition
as quickly as possible upon achieving independence.
So the sooner the text of a plausible concept for
the draft constitution is tabled in anticipation of the
constitutional convention, and that tabling is well
communicated to foreign governments, they may feel
more comfortable recognizing the newly independent
Scotland as soon as possible upon independence. Of
course, some foreign governments may not care, but
others may care or use the absence of a constitution
as the basis, however credible, for delaying
recognition, perhaps in deference to their long-held
loyalty to London. Thus the prospect for constitutional
9Adam Smith Research Foundation . Working Papers Series
relations unaltered while Scotland has to start fresh, a pragmatic political framework, carefully considered
either under a flawed clean slate theory or alone in the and deftly negotiated, of what should and should not
world of unilateral declarations. Continuation of two be continued in force for an independent Scotland.
States, separated once again, albeit more than three London and foreign governments will have key roles
centuries later, could be the operative presumption; to play in politically endorsing or acquiescing in
modern international law can absorb, indeed Scotland’s continuation of a large number of British
encourage, that concept because it rests upon the treaty obligations, but that should be a natural feature
rich heritage of the origins of the territory of the United of negotiated strategies with London and governments
Kingdom, and that is something that international and international organizations in the future. Scottish
jurists can comfortably grasp. officials would be mistaken, however, to believe that
they would negotiate from weakness. They would
Most examples of self-determination and of the law negotiate within the realm of modern international
of state succession and treaty law do not exhibit the law, even if they may find themselves precariously
simplicity of the historical fact of Scottish sovereignty positioned at times during its implementation.
three centuries ago. There were sharp demarcations
of sovereignty, albeit ruled under a single crown for Bear in mind that customary international law,
many years, between Scotland from the remainder of particularly as it is interpreted by scholars schooled
the United Kingdom before 1707 and there is no basis in the decolonization era, has very little to do with
in international law to ignore that reality today despite Scotland’s sui generis and recently thoroughly
the Treaty of Union’s presumptive union of “forever.” modernist character. Every aspect of Scottish
We have seen unfold in Scotland since the 1970s a independence will be largely sui generis and the
distinctly modern adaptation to that historical reality, legal formulas applied to it will evolve accordingly.
one fueled with the economic prospects of North The Scottish situation does invite a simpler formula,
Sea oil and the political forces of devolution. If one though. Each of the two States, Scotland and rUK,
were to plot a natural progression from a kingdom of would declare, preferably following negotiations, which
unity, namely the United Kingdom, to the separation treaties they intend to continue to enforce and which
of Scotland and rUK into two sovereign nations once treaties they would withdraw from where withdrawal is
again, then a rational pathway through devolution to permitted. Scotland, probably more than the United
independence demonstrates a logical trajectory. The Kingdom, will have to take its chances with other
2014 referendum is the next reasonable step. In short, nations and whether or not they accept the new treaty
under international law there are no insurmountable arrangements (bilateral or multilateral). This is where
obstacles to achieving independence. There is advance diplomacy, seeking essentially acquiescence,
however a political process that must address the would prove helpful. As London already has rejected
presumptive requirements of international law. this notion, and insists on viewing Scotland as
a successor State alone while rUK remains the
Article 34(1) of the 1978 Vienna Convention on predecessor and continuing or “continuator” State,
Succession of States in Respect of Treaties,48 which that posture would prove needlessly disruptive of
confirms the continuation of treaty obligations by a transition to Scottish independence. But if that
a successor state in a modern context outside of remains London’s position, then Scotland could
decolonization efforts, falls, in the views of some issue a unilateral declaration of interpretation of its
scholars, short of customary international law.49 The treaty relations and wait for any objections from other
Convention came into force in 1996, and only 22 governments. Provided the diplomatic work is carefully
nations have joined it,50 but there remains an oddly undertaken in advance, such objections may not be
static view held by some scholars that what they delivered.
believe to be customary international law trumps
the 1978 Convention, thus sustaining what is now From this exercise a new precedent for international
an utterly antiquated allegiance to the clean slate law may emerge: Where a State resurrects its former
theory, which itself was grounded in the long-passed nationhood and sovereignty through peaceful
decolonization era. referendum in accordance with democratic principles,
the restored nation may sustain existing treaty relations
Welcome to 2013, for the time has arrived to challenge where practical and provided there are no explicit
that presumption. Modernity and surely the will of objections from relevant State Parties that cannot be
the international community suggest that Scotland overcome.
embrace the continuation of treaty obligations, within
10International Political and Legal Implications of Scottish Independence . Scheffer
Scottish independence would not be an exercise Union. The fate of Scotland within the European
in “clean slate” independence, as enabled under Union, however, is not going to be determined with
international law for the era decolonization.51 There a one-page pronouncement by the President of the
will be British treaties that Scotland may not wish European Commission on a cold December morning
to continue to adhere to as an independent nation, in Brussels. President José Manuel Barroso claimed
but that decision should not be based upon a broad that Scotland would have to go cold turkey and apply
“clean slate” theory of treaty law on the heels of state for European Union membership, as if it were a newly-
succession. Rather, there should be a thoughtfully introduced State to the halls of Brussels following
negotiated parsing of treaties to determine which independence.
should continue in force for Scotland and which ones
should be abandoned. Let us step back for a moment and examine President
Barroso’s 10 December 2012 letter. The European
The conventional “clean slate” approach ignores the Commission president wrote, “If part of the territory of
deeply intertwined and complex character of treaty a Member State would cease to be part of that state
commitments by the United Kingdom and its sub-state because it were to become a new independent state,
entity, Scotland, and the needs of independence. the Treaties would no longer apply to that territory. In
In short, this should not be an exercise of rUK other words, a new independent state would, by the
continuing as the sole treaty party, for either bilateral fact of its independence, become a third country with
or multilateral treaties, and Scotland somehow being respect to the EU and the Treaties would no longer
cast adrift into a vacuum shorn of all treaty relations. apply on its territory.”52 There is nothing previously
In fact, Scotland would abdicate its responsibility as written anywhere in EU treaties or jurisprudence that I
a member of the international community if it were to am aware of that actually stipulates this point of view.
walk away from the obligations of, to mention only a
few categories, international human rights, territorial, I could just as easily write the following, which is
law of the sea, and trade treaties, and thus into some a viable option under the law but would be almost
duty-free zone of blissful but reckless independence. contrary in argument and outcome to President
Legal obligations will flow to an independent Scotland Barrosso’s statement: “If part of the territory of a
because of its long engagement with United Kingdom Member State would cease to be part of that state
treaties and its status as a co-equal successor State. because it were to become a new independent State
Law of recognition principles will require that of that wished to continue the membership of its territory
Scotland as a responsible member of the international and citizens, who are EU citizens, in the European
community committed to the rule of law. Union and continue its participation in the Treaties,
talks with appropriate authorities would be arranged
Perhaps the most workable formula for succession to confirm the modalities for achieving that objective.
would be for the British and Scottish Governments to In other words, such a new independent State would,
issue a “declaration of continuity” or “notification of by virtue of its membership in the European Union
succession” to the depositary of each relevant treaty as part of the predecessor Member State, be entitled
declaring that Scotland and the rUK will continue to to continued membership and continued application
perform designated treaty obligations, followed by the of the Treaties on its territory.” There is an alternative
comprehensive consent of the British and Scottish framing with the same outcome, particularly if one
Parliaments to such declarations or notifications, thus accepts the prospect of two co-equal successor
establishing a highly credible political decision that will States arising in the aftermath of a vote for Scottish
influence the determination of what international law
requires under the circumstances. Another path would
be a unilateral declaration by the Scottish Parliament
declaring continued adherence to those treaties that
the Scottish Government desires to continue.
IV. The European Union
I am deeply respectful of the European Union and the
European Commission, including its president, and
know how important is the future relationship between
a possibly independent Scotland and the European
11Adam Smith Research Foundation . Working Papers Series
independence. The second sentence might read: peace and stability in Europe and the protection
“In other words, such a new independent State of democratic values,54 of which Scottish self-
would, by virtue of sharing successor status with determination has been expressing itself for decades
the predecessor State, retain its membership in the through the devolution process and more recently the
European Union and remain party to the Treaties work of the Scottish Executive and Scottish Parliament.
following talks with appropriate authorities to confirm That too is part of the European Union story, as
the modalities for the transition to two Member States reflected in part by the fact that the European Union
where formerly there was one Member State.” received the Nobel Peace Prize in 2012, and that was
not for strictly economic achievements.55
Writing these words, either on my laptop or from
within the Brussels bureaucracy, is not such a big leap The best outcome for Scotland, assuming it wants
because there is no clear guidance in European Union to confirm EU membership following a vote for
law. Brussels’ real objective should be to face this independence, surely will be one that has been arrived
challenge without being intimidated by the prospect at through cooperative negotiations with London and
of an independent Scotland and without a strategy Brussels and not through issuance of legally-framed
that clearly would alienate the Scottish Government pronouncements to the endless frustration and
and people from the European Union itself and the probable detriment of Scottish citizens and EU citizens
European Commission bureaucracy. resident in Scotland.
There are requirements for State accessions under Assuming that an independent Scotland wishes to
the EU treaty that some might claim constitute lex remain within the European Union, two factors should
specialis to any claimed relevant international rules strengthen the assumption of continued EU citizenship
and standards. According to Article 49 of the Treaty considerably. First, the fact that two successor States
on the European Union,53 the Council of Ministers emerge from this process, rather than a continuator
decides unanimously whether to accept a new State of the remainder of the United Kingdom and
applicant State after consulting the Commission and the successor State of Scotland, should enhance
receiving the consent of the European Parliament. Scotland’s future with the European Union unless
The European Council may set the “conditions of Brussels requires both States, rUK and Scotland, to
eligibility” according to the treaty. The Council of start from scratch with EU membership, and that is
Ministers and the European Council usually act on not going to happen. Scotland should be a successor
the basis of a Commission opinion that assesses state on co-equal terms, at least technically, with rUK.
the eligibility of a candidate State for membership. Thus, Brussels would be under considerable political
Thus, President Barroso may have framed his, and pressure to negotiate a smooth transition of sustained
his advisers’ thinking, in accordance with the usual membership for both successor states and obviously
accession procedure that guided the admission of continuation of EU citizenship throughout the isles.
Eastern European States into the European Union.
But that overlooks the reality that the Scottish issue is British Prime Minister David Cameron’s announced
not a clear-cut accession situation, but rather a matter in a speech on 23 January 2013 his government’s
of succession. Of course, if the Scottish Government intention to renegotiate parts of the United
advocates a succession strategy with the European Kingdom’s relations with the European Union and
Union, then Holyrood essentially has chosen to retain hold a referendum by 2017 to determine continued
membership in the European Union as a successor membership in the Union.56 Holding a referendum on
State, so that would be an important initial position to European Union membership for the United Kingdom
hold firm on. in the future ironically casts doubt on London’s
commitment to the European Union at precisely
The economic nature of the European Community the same time that the Scottish National Party is
and now Union tends to be over-accounted for at advocating continued European Union membership
times, while the traditional or historical premise of for the successor State of Scotland if its independence
the European Community is sometimes forgotten or referendum receives an affirmative vote.57
at least neglected. The focus on economic issues
within the European Union and how they influence Unless European Union and EU Member State leaders
membership should not eclipse the fundamental are determined to alienate and punish Scotland and
issues that created the European Community in the its people for seeking independence, and indeed
first place after World War II, namely the search for achieving it, what political advantage is to be gained
12International Political and Legal Implications of Scottish Independence . Scheffer
by extinguishing EU citizenship if the aim is to maintain independent sovereignty as a successor State while
or entice Scotland’s EU membership? The rights of the predecessor or continuing State remains party to
EU citizenship should follow the successor State, the international organization under its original national
particularly if two successor States emerge from the identity with continuing rights and obligations. In the
break-up of the United Kingdom. latter example, the successor State presumably must
apply de novo for membership in the international
The Scottish are EU citizens with individual rights organization while the predecessor or continuing State
under Scottish law and EU law and these are rights enjoys sustained membership.
obviously relevant for an independent Scotland.58
If an independent Scotland were not to achieve An authority on international organization law, C.F.
membership in the European Union, would those Amerasinghe, writes, “A more difficult question
rights be automatically extinguished, or is there a arises when states break up, as when in 1947 India
residual body of rights with the European Union that was divided [to] form Pakistan and India, when in
individual Scots would be entitled to enjoy and enforce 1991 the Soviet Union disintegrated, when in 1992
for at least some period of time? And if there are the Czechoslovak Republic was dissolved or when
residual rights, then will not an independent Scotland in 1992 Yugoslavia broke up. While each case has
be tied to the European Union in a sui generis way? been treated on its merits and each institution must
The easy answer would be that those rights flow technically decide the issues itself to the extent
with the State of Scotland itself, and if Scotland is that the solutions are not dependent on solutions
excluded from the EU, then so too are the Scottish in other organizations, the basic principle applied
people and anyone resident on Scottish soil claiming has been that, if a continuator state to the previous
EU citizenship. But I believe there is more to this member can be identified, then that state continues
issue than some observers have recognized and what the membership of the previous member. The
Brussels probably wishes to focus on, for we are all on identification of a continuator could depend on
uncharted territory here. the agreement or vote of the other members of
the organization…. It would seem that, while these
Given such an unprecedented event not contemplated questions [of continuation] may usually be decided
by any EU treaty, one should be extremely cautious by agreement among the involved states themselves,
to dictate any sudden loss of EU citizenship and the ultimately there are no obvious principles upon which
rights associated therewith. Indeed, if an aggrieved the issues have been decided. There has always
party were to bring this issue before the European been some element of pragmatism in the solution
Court of Justice, it would not be surprising if judges, reached.”59
on equitable grounds alone, would find that EU
citizens in Scotland are entitled, at a minimum, to a Another well-known scholar, Jan Klabbers, counsels,
reasonable transition period during which their rights “[T]he rules of each international organization
as voters and to seek redress before the European will prevail. The problem, however, is that few
Court of Justice are protected and enforced before organizations have their own rules on the topic,
whatever successor regime is established, including a perhaps for two reasons. One is that issues of
Scotland that completely separates from the European succession are relatively rare (or, more accurately,
Union in all respects. were thought to be rare when most constituent
documents were drafted) and tend to come in waves.
V. International Organizations
One of the great unknowns is how the larger
international organizations, among which the
United Kingdom is typically a major member State,
will accommodate sustained membership for
an independent Scotland. There are commonly
no codified rules in the charters of international
organizations envisaging this procedure whereby
an existing member State of the organization
either separates into two free-standing new States
or a part of a member State breaks off to claim
13Adam Smith Research Foundation . Working Papers Series
Thus, decolonization took place largely in the early The negotiated acquiescence of an independent
1960s; the map of Europe was seriously shaken in Scotland in the rUK retention of the permanent seat
the early 1990s. Second, it is notoriously difficult to in the Security Council is no small matter. London
make rules on succession because the modalities of will look to Holyrood following a “yes” vote for the
succession may differ greatly from case to case.”60 referendum to engage in active diplomacy with major
governments to support the continuation of the United
The issue of an independent Scotland’s membership Kingdom permanent seat, controlled by London. That
in the United Nations and in other international actually will be a key opportunity to retain Scottish
organizations such as the World Bank, the International influence in the Security Council, but the strategy
Monetary Fund, and the International Labour for using reasonable leverage on London must be
Organization, need not be a legally-impaired exercise, carefully plotted. The long-term gain for Scotland’s role
but each organization and the fate of Scotland’s in world politics as well as the continuation of rUK’s
membership in it will require much advance work to global power could be substantial.
facilitate. If the groundwork is properly laid, and there
is clearly time to do that, Scotland’s membership in the So, rather than simply sacrifice its current participation
United Nations, for example, should not be that difficult in a permanent seat on the Security Council, an
to accomplish. The formula for U.N. membership imminently independent Scotland could negotiate
will be almost entirely a political one and in the end a continuing de facto role in Security Council
the exercise will stand as yet one more example of deliberations through the United Kingdom permanent
uniquely crafted membership exercises dictated by the seat. Holyrood could condition its acquiescence to a
circumstances, big power interests, and the good will continuation of London’s control over the permanent
cultivated by Scottish diplomats between now and any Security Council seat with the requirement, first,
prospective date of independence. that the Scottish permanent representative to the
United Nations would have a permanent chair
One critical challenge, as well as one of Scotland’s among the British seats behind the British permanent
greatest leverage points with London, is the United representative in the U.N. Security Council chamber.
Kingdom’s status as a permanent member of the Second, the Scottish permanent representative
U.N. Security Council and how that singular seat of would have the right to address the Security Council
power could be affected by Scottish independence. following full consultation with the British permanent
The example always raised is the break-up of the representative and with credentials facilitated by
Soviet Union and the survival of Russia not only as the the British Government, and only for the purpose
predecessor state that consumed the former USSR of amplifying and supporting the British position. If
membership at the United Nations, but also as the the Scottish Government disputes a British position
state, among all that broke out of the Soviet orbit, being advocated before the Security Council, such
that continued with the full power of the former Soviet as might have the been the case in 2003 when the
permanent seat on the U.N. Security Council.61 Labor Government pressed for and authorized military
intervention into Iraq alongside American forces, the
Regardless of the outcome of the independence Scottish permanent representative would vacate his
referendum, the United Kingdom will want to retain its or her seat in the Security Council chamber during
full power and authority as a permanent member of the consideration of the relevant matter. That would
U.N. Security Council, either as the reaffirmed United send a visual signal of disagreement but not entitle
Kingdom following a “no” vote in the referendum or as the Scottish ambassador to openly disagree in the
rUK following Scotland’s independence. But the latter chamber with the rUK ambassador.
will not come without a price. No one should assume
that certain European Union members (consider Even without such privileges, Scotland can leverage
Germany, Italy, Spain) or major nations long seeking its acquiescence to the rUK permanent seat on
a permanent seat on the Council (consider Japan, the Security Council remaining “status quo” and
Brazil, India, Nigeria, South Africa) will easily accept as powerful as it currently is in exchange for rUK
a continuation of a British permanent seat when an concessions on other legal or political issues.
important part of the United Kingdom casts off into
independence. This may not be a simple re-play of There is another feature of international organizations
Russia’s charmed continuation of the Soviet seat on that should be advantageous for both Scotland
the Security Council more than 20 years ago. and rUK if independence is achieved. There can be
effectively two seats occupied where only one seat
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