If the First Minister won’t take legal advice on EU accession, Better Nation will get some on his behalf – in this case advice contrary to one of the editors’ perspectives on the issue.  

Stuart MacLennan teaches European Union Law at Trinity College, Dublin, where he’s a doctoral researcher. He is a former advisor to Labour on Europe and External Affairs in the Scottish Parliament.

The debate surrounding the question of a newly-independent Scotland’s membership, or otherwise, of the European Union is, to many, a confusing one. This is likely due, in part, to the fact that two parallel debates appear to be taking place. The question as to whether or not a newly-independent Scotland would be a member of the European Union is often confused with the question of whether or not such membership would be automatic. It is the opinion of this author that while a newly-independent Scotland would almost certainly be a member of the EU, it would certainly not be “automatic”.

It is worth noting that there is five recognized means by which a state can be created:

  • Secession;
  • Dissolution;
  • Merger;
  • Absorption;
  • Decolonisation.

It is important, in the context of the current discourse, to correctly categorize Scotland, as each category tends to attract different treatment under International Law. Some have argued, quite incorrectly, that Scottish Independence would be a dissolution of the United Kingdom. This would have significant consequences for the remainder of the United Kingdom, as it would have to seek recognition as a “successor state” rather than simply being a continuing state.

There is no precedent, nor any unique grounds, to suggest that the forthcoming referendum could result in the dissolution of the United Kingdom through the repeal of the Act of Union. First, Irish independence did not result in any change in status for the United Kingdom, despite being merged by a similar Act of Union in 1800. Secondly, the s30 Order agreed by the Scottish and UK Governments only “unreserves” the holding of a referendum on “The Constitution” under the general reservations contained within Schedule V of the Scotland Act 1998, leaving the Schedule IV specific protection for the Act of Union reserved. A semantic point, but nonetheless significant in that it appears to be a recognition by the SNP that Scottish Independence would be a secession on the part of Scotland, rather than a dissolution of the United Kingdom. It is the opinion of the author that that Scottish independence would certainly be a secession.

Heavy reliance has been placed upon the Vienna Convention on Succession of States in respect of Treaties, in particular by the SNP. It is worth, at this point, making a few cautionary notes about the Vienna Convention however. First, the Convention is principally concerned with decolonization – with “successor states” being colonial powers and “newly independent states” former colonies. The International Law Commission wanted to insert a category of “quasi-newly independent states” to deal with secessions in the non-colonial context, which would apply more specifically to cases like Scotland, however France and Switzerland objected, not wanting to encourage separatist movements within their own territories.

Secondly, the European Union has shown scant regard for the principles of International Law in the past (it began with Van Gend en Loos v. The Netherlands, and just spiralled from there).

Finally, a mere 22 states have ratified the Vienna Convention, only six of which (Cyprus, Czech Republic, Estonia, Poland, Slovakia, & Slovenia) are presently in the EU. However as the SNP’s arguments are firmly rooted in the application of the convention, it is therefore necessary to give it further consideration.

The case on which the proponents of automatic EU membership relied hinges on Article 34(1) of the Convention, which states:

When a part or parts of the territory of a State separate to form one or more States, whether or not the predecessor State continues to exist:

(a) any treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed;

On that basis alone Scotland would surely accede to all of the United Kingdom’s treaties upon independence. However international practice would suggest otherwise. Following the dissolution of the Soviet Union, only Russia was deemed to succeed to most international instruments. Furthermore when Pakistan separated from India, the United Nations (hardly a difficult club to gain membership of) admitted Pakistan as a new member and recognized India as a continuing member – a practice which has been followed in every subsequent case of secession.

International practice was recognized by the International Law Commission in its commentary on the Vienna convention:

In many organizations, membership, other than original membership, is subject to a formal process of admission. Where this is so, practice appears now to have established the principle that a new State is not entitled automatically to become a party to the constituent treaty and a member of the organization as a successor State, simply by reason of the fact that at the date of the succession its territory was subject to the treaty and within the ambit of the organization.

This practice was therefore recognized in Article 4 of the convention, which states that:

The present Convention applies to the effects of a succession of States in respect of: (a) any treaty which is the constituent instrument of an international organization without prejudice to the rules concerning acquisition of membership and without prejudice to any other relevant rules of the organization;

(emphasis added)

It is clear, therefore, that both customary norms of international law, as well as positive international law, would not see an independent Scotland as a continuing member of the European Union.

However, it has also been suggested that EU Law is different from all other instruments of international law, because it purports to be directly effective. In particular, it has been suggested that the “EU citizenship” rights enjoyed by Scots would continue by virtue of the doctrine of direct effect. This is quite incorrect. The concept of “EU Citizenship” is often confused with citizenship of Member States of the European Union. While it is the case that the Treaty of Maastricht establishes the concept of citizenship of the European Union, it is by no means clear that such citizenship exists independently of citizenship of the Member State. One cannot, therefore, rely upon EU citizenship rights as somehow creating or continuing EU membership – they are the product of a state being a member of the EU, not the cause.

EU Law is, of itself, only directly effective by virtue of EU membership. It is not a super-sovereign authority that is effective without the consent of the governed (Member States). EU Law is only effective because the authorities of the Member State give effect to it (through the courts, administration, police, etc.) even if the legislation itself originates from Brussels. Without its own means of enforcement, the purported “supremacy” of EU Law over a territory is dependent upon continuing membership and acquiescence of Member States. Membership, therefore, marks both the beginning and the end of the direct effect of EU Law. It is, therefore, a fallacy to suggest that the direct effect of EU Law over the territory of Scotland exists in perpetuity.

Of course, the foregoing discourse is merely one of European and International Law – perhaps the sort of discourse that might be contained in legal advice from the Lord Advocate to the First Minister. Given the body of evidence that suggests that Scotland would not be a continuing member of the European Union, it is perhaps hardly surprising that the Scottish Government has not sought formal legal advice on the matter.

That is not to say that just because Scotland would not automatically be a member of the European Union, that it would not be a member at all. International law is inherently intertwined with international relations. It is the opinion of the author that – while not a continuing member of the European Union – Scotland would find itself in the position of a candidate state that satisfies all of the accession criteria. In that circumstance, it is entirely possible that immediate accession could be achieved through negotiation. However such matters of European politics are beyond the scope of this discussion.