Scottish Independence and the European Union

Written by

Matthew Happold is Professor of Public International Law at the University of Luxembourg 

Recent events in a number of European States have pushed the issue of secession up the political agenda.  In Catalonia, the ruling Convergencia i Unio party has announced its intention to hold a referendum on Catalan independence if it wins the forthcoming regional elections, despite the Spanish government’s claim that such action would be illegal.  In the United Kingdom, the Westminster and Edinburgh governments have agreed to the holding of an independence referendum in 2014. In neither case, however, does there seem to be a wish to combine independence with an exit from the European Union. The Scottish National Party (SNP), in particular, have long campaigned on the slogan ‘Independence in Europe’, seeking to persuade voters that they can have the best of both worlds: Scottish independence and EU membership.

In recent years, however, the SNP have quietly modified their position.  Instead of arguing that an independent Scotland would automatically be a member of the European Union, it now claims that it is ‘inconceivable’ that it would not become one.  This reflects a hard truth.  Although as a matter of politics, it may seem inconceivable that an independent Scotland -or an independent Catalonia – would not take its place as an EU member; legally there is no automaticity about the matter at all.  Succession to membership of international organisations (which the EU must, for these purposes, be classed as) is governed by international law.  International law provides that membership of international organisations is governed by the rules of each organisation.  And the Treaty on European Union does not provide for succession to membership.

The TEU has no specific rule for cases of secession from, of the dissolution of a Member State.  However, provisions concerning representation on various EU bodies make it clear that the Treaty is designed only to be applicable to the current Member States.  Since its foundation, new members have always acceded to the EU by means of an Act of Accession, which has set out the conditions for entry and provided for the requisite revisions of the Treaty.  Article 49 TEU makes it clear that a State cannot accede to the EU without the consent of each existing Member State.  The rationale behind this requirement – that each existing member of the club must agree to the admission of any new member – would seem to apply equally however an aspirant member State comes into being. That is the position has been reiterated by European Commission representatives (see here, here and here).  Although reference is sometimes made to the Vienna Convention on State Succession with Respect to Treaties, the UK is not a party to it and even if it did apply, it would not have the effect argued for. Article 4(a) of that Convention makes it clear that an international organisation’s rules on membership take priority over the general rule set out in Article 34(1) [which provides that “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.”]

It might be argued that, as the TEU provides that a Member State can only leave the Union with by agreement, a new State created by secession from an existing Member State must become an EU member because no such withdrawal has been negotiated and taken place.  However, the example of Greenland, often mentioned in support of this position, argues quite the reverse.  The withdrawal of Greenland from the EC had to be negotiated because it remained a part of Denmark (albeit having gained ‘home rule’).  Had Greenland become independent, it would have automatically exited the EC, whereas Denmark would have remained.

Indeed, a more interesting argument is that Scottish (or Catalan) independence might mean the end of the United Kingdom (or Spain) as a State.  Instead, there would be two successor States, the newly independent Scotland and ‘the rest’.  Here matters become more complex.  Advocates for Scottish independence lay considerable stress on the foundational status of the 1706/7 Acts of Union.  Such arguments are, however, irrelevant.  In the first place, they are wrong as a matter of UK constitutional law.  At best, the union legislation is not subject to the doctrine of implied repeal but that does not mean it cannot be repealed expressly without dissolving the UK.   It will be recalled that another Act of Union took place in 1800, yet the establishment of the Irish Free State in 1922 did not see the end of the UK as a State, albeit that a name change was required.  More fundamentally, however, international law applies its own criteria to the matter and is not bound by the dictates of a State’s national law, although they are one factor (among others) to be taken into consideration.

The international law criteria are not precise and in marginal cases it is possible for reasonable people to disagree.  An example was the breakup of the Federal Socialist Republic of Yugoslavia, which was categorised by the United Nations as a case of dissolution, a decision which was the subject of criticism. However, the Federal Republic of Yugoslavia, which claimed to continue the legal personality of the FSR, constituted of only two out of the State’s six constituent republics, containing a mere 40% of its old territory and 45% of its original population.  By contrast, Scotland contains fewer than 10% of the UK’s population and encompasses less than a third of its landmass.  The rump UK would include three out of four of the constituent nations, the capital city and leading financial centre, and would retain the UK’s nuclear weapons.  As regards Spain, Catalonia contains just over 16% of the total population and encompasses only 6% of its landmass.  Taking these figures alone, both Scottish and Catalan independence would appear as instances of secession, rather than as aspects of the dissolution of a State.

Reasons of expediency as well as principle are likely to see the other EU member States taking such a view.  Not only would the Treaty have to be revised to take account of the dissolution of a member State, but a number of EU member States have their own secessionist movements who they would not wish to encourage.  Indeed, such arguments would apply more widely, as regards the UK in particular.  Deciding not to recognize the rump UK as the continuation of the former undivided State would require amending the United Nations Charter (given the UK’s permanent membership of the Security Council) and the Articles of Association of the World Bank and the International Monetary Fund.  Given the controversies likely to would arise in these cases, it seems likely that States would seek to avoid that alternative.

An independent Scotland within the EU could only be the result of negotiated agreement; negotiations, in the first place, with the British government, doubtless under the umbrella of negotiations on the conditions for independence.  Indeed, the necessity of the UK’s consent for the new State to accede to EU membership would give the Westminster government powerful leverage in other issues in the wider negotiations.  Further negotiations would then have to take place with the EU, which would be embodied in a formal Act of Accession.  Again, advantages or privileges previously enjoyed by Scotland might have to be sacrificed as a condition of membership. For example, it has been suggested, albeit unconvincingly, that an independent Scotland would have to join the Euro and Schengen in order to accede to membership.  Also, the opportunity would no doubt be taken to reduce the rump UK’s voting weight in the Council of Ministers and number of MEPs to take account of shrinkage.

The same points would apply to Catalonia also.  However, the Spanish government has already taken a much harder line on Catalan than Westminster has on Scottish independence.  Indeed, its position on the first, at least according to statements made last week, look as if they may have considerable implications for the second.  In a statement made last week, Spanish foreign minister José Manuel García-Margallo told the Spanish Senate that:

“In the hypothetical case of independence, Scotland would have to join the queue and ask to be admitted, needing the unanimous approval of all member states to obtain the status of a candidate country … and to sign the final treaty [of accession].”

What Mr García-Margallo’s comments suggest is there would be no ‘fast track’ procedure for Scotland (which might be thought appropriate not least because Scotland has already adopted the EU acquis and Scots presently enjoy the benefits of EU citizenship); it would have to ‘join the queue’ with the other candidate countries (five at present, following agreement of Croatia’s terms of accession).  All this would considerably lengthen and render more complex Scotland’s accession to the EU.  Indeed, the statement implies Scotland’s application could only be received after independence, preventing negotiations taking place with the Scottish Government earlier.  And because the Spanish position is not motivated by any animus against Scottish independence it may, paradoxically, be more difficult to change.

What can be seen is that EU membership would not be automatic and may come at a cost.  Whilst it may appear politically inconceivable that an independent Scotland (or an independent Catalonia) would not be an EU member, the conditions under which it would do so, the conditions which each country’s central government might seek to impose in return for its support, and the conditions which the EU might require as the price of membership, all need to be considered.

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Angus McLellan says

October 31, 2012

Professor Happold appears to assume that it makes no great difference to the eventual outcome whether an independent Scotland is treated as a new state and sent to the back of the accession queue or as a special case and treated as an existing member. That seems surprising. After all, the EU "lost" Greenland, hasn't persuaded the Faroes or Norway to join and seems to have failed again with Iceland. Some might see a pattern there, and an ominous one at that.

Peter A Bell says

October 31, 2012

José Manuel García-Margallo is not the only one with a view on this matter. Nor does his view carry any particular weight. Graham Avery, for example, envisages a much more pragmatic - not to say credible - approach by the EU to the membership status of an independent Scotland -

Matthew Happold says

November 2, 2012

Angus McLellan misunderstands me. Scotland would have to apply to for membership; the real question concerns the process and whether Scotland could ‘jump the queue’ or not. Given, as I stated, that Scotland has already adopted the EU acquis and that Scots presently benefit from EU citizenship, there would much to be said for expediting a Scottish application to accede to the EU, and nothing in Article 49 TEU, it seems to me, which would prevent it. As for whether acceding to the EU is a good thing or not, the SNP considers that it would be, and it’s this desire on which I base my comments.

As regards Peter A Bell’s comment, plainly the view of José Manuel García-Margallo is one among many. However, Mr García-Margallo is Spanish foreign minister, Spain is an EU member State and Article 49 TEU requires unanimity among the member States for a new State to accede to the Union. So his view does carry weight.

Calum Crichton says

November 2, 2012

The evidence is quite clear. Scotland would need to apply and join the euro and Schengen.

Arman Sarvarian says

November 3, 2012

I wonder whether the role of the Vienna Convention is being potentially undervalued in this process in light of the silence of the EU Treaties on the question of succession to membership. Whilst the Commission has made its view clear, despite its prominent role in membership matters it does not have determinative jurisdiction on the Treaties. This is a matter for the European Court of Justice and, given the importance of this issue, this is where a 'constitutional reference' mechanism would be useful prior to the Scottish referendum being held to clarify the legal position. Possibly a preliminary reference could be brought by a Scottish court on the matter, though of course a 'dispute' would be required. Potentially a direct action could also be brought, with the same admissibility criterion.

In light of the gap in the EU Treaties concerning succession, it is certainly arguable that general international law would fill that gap. Here, the low number of signatories to the Vienna Convention could be brought to argue against the applicability of Article 34(1) as a customary rule notwithstanding the non-ratification by the UK and the EU itself of the Convention as a whole. However, it is difficult to conceive of an alternative rule that commands greater support in State practice. This applies particularly in light of the sparsity of practice to refer to. In present circumstances, there is certainly an argument to be made that Article 34(1) would apply as a gap-filler in light of the silence of the EU Treaties themselves.

The 'continuation' argument presented is compelling, in light of the pragmatic assumption by the rump UK of the previous entity's rights and obligations à la Russian Federation-Soviet Union (and, controversially to the contrary, FRY-SFRY). However, the continuation of the prior personality does not of itself preclude the new personality being created for the putative Kingdom of Scotland automatically receiving EU membership. See, for example, the precedent of Czechoslovakia whereby the Czech and Slovak Republics were admitted as new UN members (the old membership terminating by common consent) but succeeded to membership of other treaties to which Czechoslovakia was already party. Consequently, the modalities depend upon negotiation and the specific treaty regime being considered. In the EU case, it is difficult to conceive that Scotland - having already completely adopted the acquis and being part of the EU for decades - would pragmatically be required to undergo an accession process. Rather, the rump UK could continue the prior personality with the new personality automatically succeeding to membership per Article 34(1).