Jure Vidmar is Leverhulme Early Career Fellow in the Oxford Law Faculty, and Research Fellow, St Johns College, University of Oxford. His book Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice will be published in March 2013.
As has already been noted on this blog (here and here) Professors Alan Boyle and James Crawford recently drafted an opinion on the international legal consequences of the Scottish referendum on independence. The Boyle/Crawford argumentation is very straightforward and, in my view, a conventional and uncontroversial account of the applicable international legal framework. However, I see one potential problem which was not (or could not) be considered in the Opinion drafted in December last year. In January 2013, Prime Minister Cameron announced another referendum; this one would be on the UK exiting the EU. Which UK would exit – the one with or the one without Scotland?
It is true that this referendum is not a legal reality at this stage and is merely a political pledge to be fulfilled should the Conservatives win at general elections. But with this possibility on the table, it is not entirely possible to separate the two referenda. Given the special nature of the EU, it is arguable that Scots now no longer know for what kind of an arrangement they are voting if they choose to stay in the UK. Or to put it differently, Scots do not know whether a vote for the UK is also vote to stay in the EU. And this may well be problematic under international law which requires that terms of a referendum on independence should be clear and unambiguous.
What if you are a Scottish voter who does not care about the UK but would vote against independence mainly (or only) because you do not want Scotland to be out of the EU and you do not want to lose your EU citizenship? How do you vote? If you support the UK, you might be out of the EU in the very near future anyway – because of the other referendum. What is more, if the UK eventually leaves the EU, it is quite likely that a vote for Scottish independence would have been a vote for the EU. Indeed, it is more likely that Scotland would join in due course than that the UK, if it left, would re-enter any time soon. So, if you are a Scottish voter and motivated by Scotland staying in the EU; how should you vote in 2014? Assuming you are not a fortune teller and cannot predict what would happen in 2017, you do not know. In 2014, Scots might be asked to go off the deep end without being assured that there is water in the pool. This is precisely what the clarity standards regarding independence referenda try to prevent. Read the rest of this entry…