Scottish Independence & the EU

September 18th 2014 could be a watershed moment for both the UK and the EU. It is on that date that a referendum on Scottish independence takes place. A positive vote would signal the start of a process that will result in the creation of a newly independent Scotland and reconstituted UK. This possible outcome raises questions relating to the membership of the EU for both what remains of the UK and an independent Scotland.

The question has raised varied and contradictory responses from political leaders and legal experts on both sides of the debate, as well as comments from two EU Commission Presidents. The absence of a definitive answer to the question is both frustrating and confusing. So why is this question so difficult to answer?

Firstly, existing EU Treaties are silent on this issue. While explicit legal mechanisms for leaving and joining the EU exist there are no legal provisions that expressly address the break-up of an EU Member State.

Secondly, there are no precedents for this situation. The Scottish independence movement is in favour of retaining membership of the EU. This is obviously different from an independence movement that expressly sought to leave the EU as was the case of Greenland in 1985.

Thirdly, this question has considerable political significance because it is not limited to the UK. There are other EU Member States where independence movements are very active, notably Catalonia in Spain and Flanders in Belgium. While all of these movements need to be understood within the context of their own national debates, any precedent in Europe will obviously impact both politically and legally, on their situations.

Finally, philosophically and practically, there are other concerns of a more fundamental nature. Some have questioned whether the very nature of the EU’s evolution is contributing to the break-up of its own Member States as older European identities are reasserted.  Would Member State fragmentation, making the EU a coalition of a larger number of smaller countries, make a federal European State more likely in future? If so, are we witnessing the start of a European constitutional crisis?

In this special briefing EU Issue Tracker will present a summary of the key legal issues that are posed by this question, examining the different legal arguments and presenting the possible outcomes focusing on the question of Scottish independence.

The Impact of Independence

In seeking an answer to the question of the impact of Scottish independence upon EU membership it is necessary first to examine what status would be accorded to a newly independent Scotland and to the rest of the UK (England, Northern Ireland and Wales).

Scotland choosing independence would of course change the make-up of the United Kingdom territorially, as well as politically. Fundamentally the question is whether or not the UK would cease to exist (dissolution) as a result of Scottish independence.

In international law, there are a certain number of possibilities;

1) Dissolution of the UK

In this scenario the UK would be considered to have been dissolved and two new countries would be created – Scotland and remaining parts of the UK, (England, Northern Ireland and Wales). Neither of the new countries would be bound by international treaties entered into by the previous UK and each would have to apply to be admitted in its own right as a new member of international organisations.

This scenario was the case with the former Czechoslovakia, which separated in 1993, into two wholly new States, Slovakia and the Czech Republic.

2) Joint Succession to the UK

In this scenario both Scotland and the remaining parts of the UK would be considered to be successor States to the UK. As successor States these new countries would inherit the international obligations of the old State.

This scenario is based upon the United Arab Republic which reverted back into its original constituent States of Syria and Egypt in 1961.

This view has been put forward by Professor Scheffer who argues that as Scotland and England were independent States before the 1707 Acts of Union, they should revert back to being separate States.

3) Continuation of the UK

In this scenario, following Scottish independence, the remaining parts of the UK would be treated as a (territorially reduced) continuation of the UK retaining its international obligations and its membership of international organisations, the UN, IMF and the EU.

Scotland would be regarded as having seceded from the UK and, as a wholly new State, it would no longer be bound by previous international treaties. Consequently, it would be required to apply to be admitted as a new member of international organisations.

This scenario occurred in the UK when the Irish Free States gained independence from the UK in 1922.

In general a State can be considered to be the continuation of a previous State if the following factors are retained: 
• a substantial majority of the former member's territory;
• a majority of its population;
• a majority of its resources; 
• a majority of its armed forces; 
• the seat of the government and control of most central government institutions, and 
• a devolution agreement on UN membership with the other components of the former State agreed.

When the USSR collapsed, Russia claimed to be the continuator of the Soviet Union, on the grounds that it contained 51% of the population of the USSR and 77% of its territory. This was recognised by the international community. However, when the former Yugoslavia collapsed no continuation of the state was recognised by the international community. This was partly based on the fact that the territory, population and resources of the Yugoslavia had been greatly reduced.

In the context of Scottish independence, the remainder of the UK would retain 65% of the previous territory, 90% of the population and the majority of its resources, armed forces, its seat of government and government institutions. It is likely that it could claim to be the continuation of the UK. This argument is put forward by Professors Crawford and Boyle in their legal opinion to the UK government on Scottish Independence.

However, international politics could also play a major role here. Although some States and international organisations might recognise the continuation of the UK, other States might not and instead denounce international obligations formerly owed to it. This could affect membership to certain organisations and could for example put the UK’s seat in the UN Security Council at risk.

The Vienna Convention on the Succession of States in Respect of Treaties (1978)

The Vienna Convention of 1978 is an international treaty that sets out rules on the succession of states and has at times been cited during the debates on this topic.

Article 34 of the Convention states that a newly formed State remains bound by the treaty obligations of the previous State(s) from which it separated. This would mean that Scotland would be bound by previous Treaties.

However, the UK has neither signed nor ratified this Convention and therefore it is not legally binding. Furthermore The Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986) has not yet entered into force and there is also some doubt as to whether these Conventions would govern EU membership.

Scottish Membership of the EU: Continuity or a New Deal?

As previously mentioned, the EU Treaties (the Treaty of the EU and the Treaty on the Functioning of the EU) do not include specific provisions with regard to EU membership of a former territory after secession.

There is no clear historical precedent either. Those that do exist predate the EU in its current form. Algeria did not seek to remain part of the European Economic Community (EEC) after it gained its independence from France. Greenland became autonomous within the Kingdom of Denmark and then in a referendum voted to leave the EEC.

Again there are a number of possible interpretations of what should happen:

Classical Interpretation: The Need for Reapplication

Following the strict classical interpretation of international law, the act of secession from the UK would mean that Scotland was also removing itself from the EU. The territorially reduced UK as the continuation of the former UK would retain EU membership. Independence therefore comes at a price - Scotland would have to apply for membership under Article 49 of the Treaty and get the approval of all current EU member states.

This scenario reflects the position of the UK government, following the legal opinion of two experts, Professors James Crawford SC and Alan Boyle. This interpretation has also been put forward by the President of the Council of the EU, Herman van Rompuy, and the President of the Commission, Jose Manuel Barroso. It should be noted, however, that the European Commission does not make the decision on membership – this is quite clearly the decision of the Member States.

The shortest time the accession process has taken to complete is 3 years (in the case of Finland). Considering the range of topics that would have to be negotiated - for example Scottish involvement in the Schengen Accords, the euro, the UK budget rebate, the structural funds, cooperation in the fields of justice and home affairs, and the Agricultural and Fisheries Common Policies – the negotiations are unlikely to be able to be completed in less than 3 years.

Although unlikely, there is also the issue of whether current Member States might veto Scottish membership of the EU. It should be borne in mind that membership of the EU is not guaranteed or automatic. The current Member States all possess a veto on Scottish membership of the EU and it would only require one Member State to exercise this right. 

Alternative Interpretation: A Negotiated Solution

Another interpretation is that as the UK is a member of the EU, Scotland’s continued membership could simply require an amendment to the EU Treaties. The special procedure for amending the existing EU Treaties under Article 48 of the Treaty of the European Union could therefore be used.

This scenario is the position taken by the Scottish independence movement notably that following a vote for independence, the Scottish government would immediately enter into negotiations with Westminster and EU Member States to ensure that an independent Scotland achieved a smooth and timely transition to independent membership of the EU, enabling it to become a Member State at the point of independence - namely March 2016.

However a former judge of the European Court of Justice, Sir David Edward, points out that no entity called Scotland would exist to negotiate with the EU until its independence. It is therefore clear that following a vote in favour of independence, the negotiations between Edinburgh and London-based governments will need to agree on the details of the separation of Scotland from the UK.

At the same time the UK would need to be in discussions with the EU regarding amending the EU Treaties to reflect its eventual status - its contribution to the EU budget would be necessarily reduced by virtue of Scotland’s independence, as would the weight of its voting rights within the Council and the number of MEPs that represented it. Could a negotiated solution for Scotland be part of this process? If so, the UK government would be negotiating on Scotland’s behalf for EU membership. 

A Treaty amendment is not unprecedented. Two examples come to mind; the reunification of Germany and Greenland’s decision to withdraw from the EEC. The latter was a negotiated outcome and Greenland left after formal amendment of the Treaty. However, this exit from the EEC was carried out at a time when there was no express mechanism for leaving. The Lisbon Treaty now expressly allows this under Article 50.

This approach would obviously depend heavily on successful political discussions between the UK and EU Member States on a managed outcome for its new status and that of Scotland’s. One possible practical and political solution could be for Scotland being accorded a “passive membership” while it negotiated its accession proper.  

A number of Member States– Spain, Cyprus and Belgium are potentially problematic here. These Member States are not opposed to Scottish membership of the EU in principle but are concerned that a political arrangement for Scotland will set a precedent that could have consequences at the national level for these States.

The Involvement of the European Court of Justice

Yet another point of view has been set out by legal professional Aidan O’Neill QC. The unprecedented nature of new states coming into existence within existing EU members is a constitutional issue for the EU legal order and without a specific mechanism provided for in the Treaties this could lead to the European Court of Justice becoming involved.

The European Court of Justice recognised in 1964 the EEC Treaty as having created its own legal system which became an integral part of the legal systems of the Member States and which their courts are bound to apply. The EU was therefore different in nature to other international organisations.

Whereas public international law recognizes only States and international organisations as being the only subjects and objects of international rights and obligations, EU law imposes obligations and confers rights directly on individuals.  In order to do this the new legal order created by the Treaties has primacy over national law.

If Scotland was considered to have left the EU and needed to reapply, what would happen to Scottish citizens in the EU? Would and should they be considered to have lost their EU citizenship rights?

In the case of Rottmann v Bavaria, the European Court of Justice has recognised that while the question of citizenship is a solely national competence, where national measures would deprive citizens of the their rights as citizens of the EU the national measures would also fall within the scope of EU law.

However, EU citizenship is additional to and does not replace national citizenship and this is clearly expressed in the Treaty.

Notwithstanding this point, the automatic loss of EU citizenship status for Scottish nationals could well lead to the European Court of Justice becoming involved in the question of Scottish independence particularly in the absence of express provisions in the existing Treaties and clear precedents.

It is not inconceivable that the Court would rule that Scotland and the rest of the UK should each succeed to the former UK’s existing membership of the EU.  The opportunity for such a ruling would allow the Court to reaffirm the primacy of EU law over national and international law, thereby confirming its own role as the final arbiter on matters affecting the constitutional order of the EU as well protecting the acquired rights of EU citizens.

Conclusions

The possible positive vote for Scottish independence will present the UK and the EU with a number of legal and political challenges

With the EU Treaties silent on the issue and with no similar historical precedent, the final decision on whether Scotland remains a member of the EU, in the event of its independence, is likely to be a political one.

The key areas that will require clarification include:

1) The future status of the UK (without Scotland) and Scotland’s status as a newly created State; 
2) Whether the former UK’s international obligations are succeeded to by the remainder of the UK or by both Scotland and the newly formed UK.
3) Whether EU Member States are willing to accept Scotland’s membership of the EU either through a Treaty amendment or by a formal application for accession.

These negotiations will be decisive on whether other States accepted their positions on such matters as continuity and succession. Such negotiations will not be able to be rushed due to their complexity but should not take too long either, for risk of creating uncertainty. They are however unlikely to be completed by 2016.

Any major disagreements in negotiations within the UK or with other EU Member States are likely to lead to the involvement of the European Court of Justice and trigger a much wider and more fundamental debate about the constitutional order of the EU.