Scottish Independence and EU Membership: Part I

Introduction

As the campaigns for and against Scottish independence move into their final rounds of sparring before the vote on 18 September, the question of Scottish membership of the European Union (EU) sits (relatively) quietly in the background. And no wonder: a question which involves the interaction between the complexities of international, EU and domestic law, as well as the vagaries of international politics is a headache for which the average voter has little appetite, and nuanced discussion of which is unlikely to win many votes. Nonetheless, the question of Scottish EU membership is of considerable practical importance if a ‘Yes’ vote is returned and raises very interesting legal issues. (For previous posts on this blog raising some of those issues, see here, here and here).

Due to the complexity (and controversial nature) of the issues involved, my analysis will be split into two posts. This first post sets out the broad position of the campaigns, explores the relationship between international law and EU law, and considers whether there is any merit in the view that an independent Scotland would become a member of the EU automatically (the ‘automatic succession’ argument). It is argued that the automatic succession argument is unpersuasive even as a matter of EU law. The second post will consider the arguments concerning the correct legal basis in the European Treaties for negotiated EU membership, as well as some of the problems involved in the negotiations, the consequences if they fail, and how such issues might come to be considered by the Court of Justice.

The position of those campaigning against Scottish independence is that if Scotland becomes independent, it would not be an EU member state, and would have to reapply to join, possibly languishing at the back of a queue of other applicant states.

The separatist position has been a somewhat movable feast. At one point, the Scottish Government suggested that an independent Scotland would automatically be a member of the EU and some eminent commentators, such as Aidan O’Neill QC, have also sought to defend that outcome (see here). However, the Scottish Government has now disavowed that position, and the White Paper recognises that EU membership would need to be negotiated after all (as does O’Neill, see: here). Nevertheless, it seeks to make the case that such negotiation would be seamless and therefore the risks of not being welcomed with open arms are small.

Both sides have attracted prominent academics to their cause, and their evidence was considered at length by the Scottish Government’s European and External Affairs Committee in their 2nd Report, 2014 (Session 4): Report on the Scottish Government’s proposals for an independent Scotland: membership of the European Union. Clearly, such a wealth of information cannot be addressed here in all its aspects, although I seek to highlight some of the more important issues.

International Law and EU Law

One of the fault lines in the debate has been between what we might loosely term ‘international lawyers’ and ‘EU lawyers’. Deploying an oversimplified view which might be used by one group to typify the other, an ‘international lawyer’ sees the question as one of state succession and the law of treaties (see e.g. the Report of Professors Crawford and Boyle). On this view, the UK without an independent Scotland (rump UK or ‘rUK’) is the continuing state, retaining the international personality of the UK and remains an EU member state. Scotland is a new state, having been created by secession, and is not a state party to the multilateral treaties which constitute the EU. Therefore, Scotland must follow the procedure to accede to the EU treaties. The ‘EU lawyer’ on the other hand says that this gets it all wrong. The EU is not simply a creature of public international law – it is a new legal order, it is sui generis. The ordinary rules of state succession do not apply, as there are compelling reasons found within the European project and European legal order which mean that Scotland would not need to accede to the EU treaties as if it were simply another applicant state.

Each position, at least on the face of it, suggests that its own perspective should be treated as paramount. However, in reality, there is no conflict between international law and EU law on this issue. Rather, international law and EU law agree that the answer is to be found by reference to the EU legal order.

As regards international law, Art 4 of the Vienna Convention on the Succession of States to Treaties 1978 (VCSST) defers questions of state succession to international organisations to the rules of those international organisations, as previously pointed out by Professor Happold on this blog. Importantly, during the drafting of the VCSST, this article was accepted as reflective of customary international law.

As far as EU law is concerned, since C-286/90 Poulsen, the Court of Justice has considered that customary international law binds the EU and forms part of the internal legal order, and norms of customary international law have been accepted and applied in a number of cases. In addition, Art 3(5) TEU now provides that the EU shall contribute to “the strict observance and the development of international law.” On its own terms, therefore, EU law looks to Art 4 VCSST, which points it back to EU law. However, deference to customary international law also leads to the principle that treaties bind only by consent, such that prima facie, an independent Scotland would not automatically be a member of the EU on independence day (proposed to be some 18 months after the referendum). This outcome is consistent with the view taken by the Court of Justice in C-148/77 Hansen v Hauptzollamt Flensburg, that the definition or delimitation of the High Contracting Parties, in that case, France, was a matter for domestic law. As of independence day, the rUK will not define itself as including Scotland. Consequently, the prima facie position in both international and EU law is that the consent of the other EU member states would be required before Scotland could become a member.

However, instead of immediately addressing the question of negotiated membership (which I will turn to in my next post), it is worth considering two possible counterarguments to the above view which have been recently summarised by Professor Douglas-Scott in an illuminating working paper to which I further refer later. Taking them in reverse order, there is an argument from human rights treaties, to which succession is said to be automatic, and there is an argument from EU citizenship, formerly advanced by Aidan O’Neill QC. Each of these could be used to suggest that succession to EU membership could also be automatic, employing a more teleological approach to interpretation to overcome an initial literalist interpretation. This is consistent with the approach taken by the Court of Justice to matters of interpretation generally, and so should not be lightly dismissed.

Human Rights Treaties

Professor Douglas-Scott, in her working paper, states “There exists a compelling school of thought in international law that human rights treaties automatically bind successor states.” For present purposes I would simply observe that the question of automatic succession to human rights treaties in general is hotly contested and there is significant academic disagreement on this issue. In particular, there has not been a coherent international law analysis which explains exactly how and why such automatic succession occurs. More pertinent, however, is her discussion of the Bijelic case before the ECtHR, in which the Court determined that Montenegro remained bound by the ECHR even in the period between its secession from its predecessor state (Serbia and Montenegro) and its accession to the Council of Europe, which is normally a condition precedent to the application of the ECHR.

Notwithstanding the ECtHR’s analogy with acquired rights (which encounters considerable difficulty in explaining why procedural aspects of the ECHR would continue to apply, including the ability to bring a case to the Court), a better way of understanding the decision is that the ECtHR displayed interpretative creativity with regard to references to the “High Contracting Parties” in the Convention, implicitly interpreting them to mean “High Contracting Parties (and their successor states)”. Thus, it might be said that the ECtHR, as guardian of the Convention and authentic interpreter of that instrument, decided that automatic succession should take place, such a view being justified on the basis that the effectiveness of human rights protection should not be impaired.

The approach of the ECtHR is valuable to the present discussion for two reasons. Firstly, it will be directly applicable to the case of an independent Scotland – the ECHR will continue in force there (although Council of Europe membership will need to be separately agreed). Secondly, it demonstrates the type of creative approach that might be applied by the authentic interpreter of an international treaty, despite relatively clear wording, to ensure automatic succession. Thus, if sufficient justification could be found by the Court of Justice, it might choose to take a similar attitude toward an independent Scotland’s EU membership and interpret the references to the “United Kingdom of Great Britain and Northern Ireland” in the European Treaties as meaning the “United Kingdom of Great Britain and Northern Ireland (and its successor states)”.

Overall, however, such any such justification would be unstable and subject to considerable practical difficulties. Indeed, the very fact that ECHR rights will continue automatically removes significant force from an argument that the Court of Justice would need to step in to protect fundamental rights of newly independent Scots. Nevertheless, this point is subject to the important caveat that the concept of EU citizenship protects an important package of rights which the ECHR does not protect, particularly as regards free movement, and so it become necessary to address the argument formerly advanced by Aidan O’Neill QC.

EU Citizenship

O’Neill (see here) begins with the Court of Justice’s repeated statement that EU citizenship is destined to become the fundamental status of nationals of the Member States, and suggests that EU citizenship involves access to rights of such importance that it cannot be lightly removed. As Art 20(1) of the Treaty on European Union (TEU) maintains the position that EU citizenship is contingent or parasitic upon nationality of a Member State, he argues that because Scottish independence would result in an automatic loss of UK nationality, this would have the consequence of removing EU citizenship from Scots. Such a dire consequence, he concludes, would not be accepted by the Court of Justice, and so it would conclude that Scotland is automatically a Member State in order to avoid that outcome. However, there are a number of problems with this argument.

Firstly, as is correctly recognised by both O’Neill and Douglas-Scott in their more moderate versions of this argument (i.e. EU citizenship as an important factor driving negotiation rather than supporting automatic succession of an independent Scotland to EU membership), there is no obligation incumbent upon the UK Government to remove UK citizenship from Scots. If the UK Government maintains UK citizenship for Scots, it is difficult to see how the argument bites at all.

Secondly, by means of the inclusion of Art 50 TEU in the Lisbon Treaty, the right of a Member State to leave the EU was made explicit for the first time. It provides that withdrawal is to be effected by notification of a state’s intention to the European Council, and ideally, the EU then negotiates a withdrawal agreement with the withdrawing state. The Treaties cease to apply as of the date of entry into force of the withdrawal agreement or, if no agreement was concluded, two years after notification. The inclusion of Art 50 TEU clearly demonstrates that membership of the EU and the rights and obligations that flow from that may not necessarily last forever. As a result, if a state chooses to leave the EU, then the respective rights of that state and its citizens will cease, if all attempts at agreement fail, two years after notification. In this way, there is already implicit recognition in the EU Treaties that EU citizenship rights can be removed. However, should that arise as a consequence of a decision affecting all nationals of a Member State (i.e. a decision to leave the EU), the Treaties recognise a two year minimum guarantee for such rights as appropriate.

Thirdly, O’ Neill’s argument relies heavily on C-135/08 Rottmann. Although the Court of Justice does not have general competence to regulate matters of nationality, it has developed a line of jurisprudence which requires national decision makers to have due regard to EU law when taking decision which will affect EU citizenship. In the context of the removal of nationality, the meaning of having ‘due regard’ to EU law arose for the first time in Rottmann.

In that case, Mr Rottmann was born in Austria and so acquired Austrian nationality as a result. Many years later, and facing investigation in Austria for fraudulent activity, he moved to Germany, where he applied for German nationality. On becoming a German national, he lost his Austrian nationality. It was subsequently discovered that he had deceived the German authorities in failing to disclose the investigation in Austria. This represented a ground under German law for removing his newly acquired German nationality, and so Mr Rottmann was left both stateless and without EU citizenship as a result. The Court of Justice held that it was for the German court to decide whether, on the facts before it, the response of the German authorities in removing Mr Rottmann’s nationality had been proportionate.

O’Neill’s argument neglects two important aspects of Rottmann. The first is that in Rottmann itself, there was clear evidence of a cross border element such as to engage EU law. This rationale does not apply, however, to the numerous Scots who have never and will never exercise their free movement rights. Whilst it is correct to observe that the Court of Justice’s citizenship jurisprudence as seen in the C-34/09 Zambrano line of cases has moved away from a strict requirement for actual cross border activity, such development is controversial, and has not yet been applied in cases concerning the removal of nationality. The second is that, even in Rottmann, the Court of Justice recognised that the removal of nationality was permissible where such removal was determined to be proportionate by a national court. On the assumption that EU law considers it proportionate to treat EU citizenship at an end after two years if a state decides to leave the EU (as explained above in relation to Art 50 TEU), then it is certainly arguable that it would be proportionate for the UK Government to terminate UK nationality two years after independence day.

Practical Difficulties with Automatic Succession

The foregoing points demonstrate that the case for automatic succession as a matter of EU law is unpersuasive. However, as alluded to already, significant practical difficulties would also result. The most obvious of these are the consequential amendments to the European Treaties which would be required which could not be developed by the Court, such as budget contributions or national allocations of MEPs or Commissioners. The less obvious point is that alongside the Court of Justice’s teleological approach to questions of EU law, it also engages with deeper constitutional considerations. As neatly stated by former Advocate General Maduro:

“The Court of Justice is one in a community of legal actors that ‘constructs’ the EU legal order. Such constitutional pluralism means that the development of EU law is dependent on a discursive process with other actors and that it is both shaped by that discourse and has to be shaped in the light of its likely ‘appropriation’ by those actors.”

Considered from this ‘likely appropriation’ angle, it is difficult to see that automatic succession for an independent Scotland would not go unchallenged in one or more member states. To pick one obvious example, the German Constitutional Court’s consistent jurisprudence emphasises the constitutional importance of the democracy principle. This could well form the basis of a domestic challenge in the case of the automatic addition of an extra member State without prior national consultation (I address the practicalities and likelihood of legal challenges more fully in my next post).

Conclusion

However, whilst it should be clear from this discussion that the case for automatic succession as a matter of EU law is unpersuasive and there would be significant practical difficulties with that outcome, there are also extremely legitimate countervailing concerns in play. The human rights approach and the citizenship argument both highlight the importance of avoiding what we might call ‘protection gaps’. Further to this, the other consequences of Scotland being outside the EU could be extremely destabilising – as Sir David Edward, the former British judge on the Court of Justice points out, this affects issues as diverse as the rights and obligations of individuals and corporations, to maritime security and defence. All of these issues point to the need for negotiations to take place, as most participants in the debate now accept. I attempt to deal with those negotiations in my next post.