Boyle and Crawford on Scottish Independence

Last month, Joseph Weiler’s post on Catalonian independence and the European Union triggered a lively discussion here on EJIL!Talk (including Nico Krisch’s reply). Yesterday’s publication by the British government of a legal opinion by Alan Boyle of the University of Edinburgh and James Crawford of the University of Cambridge, entitled ‘Referendum on the Independence of Scotland: International Law Aspects’ has already received extensive news coverage (eg BBC, New York Times, Guardian, FT) and was labelled as ‘incredibly arrogant’ by the Scottish deputy first minister.  In a riposte, the Scottish government accelerated publication of a report on the macroeconomic framework in case of Scotland’s independence. A committee composed of economists, including Nobel prize winners Joseph Stiglitz of Columbia University and Sir James Mirrlees of the University of Cambridge, suggested that if the Scottish people voted for independence in 2014, a formal currency union between UK and Scotland, with a 10 percent Scottish stake in the Bank of England, would be the most likely outcome.  The currency that Scotland would use in the event of independence and Scottish membership in international organisations, most importantly the European Union, have been focal points of the discussion in the lead-up to the referendum.

In their legal advice, Alan Boyle and James Crawford take the view that the remainder of the UK would continue the legal personality of the UK, whereas Scotland would be a new state. As such, it would need to seek admission to international organisations and the European Union. Whereas Scotland would in their view need to apply to become a member of the Council of Europe, the European Convention on Human Rights would continue to apply to Scotland. However, they recognise that there is considerable uncertainty about the effect of Scottish independence on the rights under the EU treaties of UK citizens who would become Scottish nationals in the period (potentially drawn out) while Scotland negotiates its accession to the European Union. In Rottmann, the Court of Justice of the European Union took the view that EU citizenship, as a derivative add-on to the nationalities of member states, might significantly constrain the power of EU member states to strip their nationals of nationality where the result would be to render them stateless and losing their rights under the EU treaties.

Scotland would be the first case of state succession governed by complex a interplay of international and European Union law (in particular EU citizenship and fundamental rights). Which was the law deemed to apply to particular questions would be crucial factor in working out the legal implications.  It seems clear that unilateral Scottish independence would be a legal nightmare, or legal bonanza for the lawyers, depending on how one looks at it. It would also leave important decisions about the future arrangements between Scotland, the UK and the European Union in the hands of potentially a multitude of different courts and tribunals that might reach inconsistent results. Should the Scottish people vote for independence, only  independence prior to independence would avoid years of uncertainty and litigation. On this crucial point, the international lawyers and the economists agreed. Negotiations, with respect to currency arrangements and all of the complex legal issues raised by Scottish independence, would offer the only sensible way forward.