Home Posts tagged "Scottish Independence"

Brexit: Is everything going to change in law, so that very little would change in fact?

Published on June 27, 2016        Author: 

‘A full calorie Brexit or Brexit lite?’, Marko Milanovic has asked on this blog. The different modalities of Brexit are rooted in Article 50 TEU, which foresees a period of two years to negotiate the precise terms of UK’s exit and a future relationship between the UK and the EU. Moreover, the referendum does not have any self-executing legal effects. It will now be on the UK government to decide when (and whether?) Article 50 should be triggered. We agree with Marko’s excellent analysis and believe that, in principle, a number of lite exit diets could be created. What is also possible is that we would get three parallel Brexits, some with more calories than others. England and Wales could leave on different terms than Northern Ireland (which may at least theoretically even stay via the Republic of Ireland); and it is possible that Scotland would continue the UK’s membership with some revisions – and as an independent state.

Brexit lite: replacing EU law with international treaty law

Article 50 does not exclude – perhaps it even encourages – the conversion of a full-fledged membership into a ‘Switzerland-plus-minus’ arrangement. Hence the phrasing in Article 50(2) TEU: ‘[T]aking account of the framework for its [of the exiting member state] future relationship with the Union.’ If it were envisaged from the outset that this relationship would be the same as the relationship between the Union and e.g. Panama, this phrasing would have been completely redundant. Yet, any Conservative PM would probably have difficulties accepting a single market deal with the present free movement of people package. It is difficult to imagine, on the other hand, that the EU could give the UK an asymmetric free movement deal, without people. But then, there is some room to manoeuvre. Read the rest of this entry…


Scottish Independence and EU Membership: Part II

Published on September 16, 2014        Author: 


In my previous post (here), I addressed the reasons why international law and EU both arrive at the conclusion that an independent Scotland would not automatically succeed to EU membership. Given that it now seems to be accepted on all sides that membership of the EU would therefore need to be negotiated, much of the previous post can be considered a necessary background to the following discussion. In this post, I consider 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.

Due to the complexity of the issues and the consequent length of this post, it is only appropriate to summarise my view from the outset. In theory, I consider that either Article 48 or Article 49 of the Treaty on European Union (TEU) could be utilised in order to facilitate EU membership for an independent Scotland. However, both routes involve significant difficulties, and it is likely that an Article 48 process would be the more problematic of the two, and could be blocked. In any case, it appears that the Scottish Government’s proposals for the timetable from a ‘Yes’ vote to independence day are wildly optimistic.

On balance, and contrary to the position in the Scottish Government’s White Paper, it may therefore be the case that Article 49 should be preferred by the Scottish Government, for the reasons I set out below. However, whichever process is used, if the date for independence day is immovable, then the possibility of the requisite membership steps remaining incomplete at that time is a nettle (or a thistle!) that must be grasped. In such a scenario, I envisage that EU law would be given continuity of effect, and that it would be possible or even likely that a case would reach the Court of Justice which would test this point. However, such a position would probably be an interim solution at best, and could still result, in the worst case scenario, in the EU rights and obligations of an independent Scotland, its citizens, and its companies, coming to an end. Read the rest of this entry…

Filed under: EJIL Analysis, European Union
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Scottish Independence and EU Membership: Part I

Published on September 10, 2014        Author: 


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. Read the rest of this entry…

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EU–UK–Scotland: How Two Referenda Created a Complicated Love Triangle

Published on February 18, 2013        Author: 

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…

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Scottish Independence: Political Rhetoric and Legal Realities

Published on February 16, 2013        Author: 

The recent publication of Professors Crawford and Boyle’s opinion on the international law aspects of Scottish independence is an event not because it says anything new – most commentators (including the present writer) come to the same conclusions – but because it puts the imprimatur of two highly distinguished international lawyers on the matter. On Scottish independence, Scotland would emerge as a new State, with the rump UK (England, Wales and Northern Ireland) continuing the legal personality of the UK. As regards membership of the European Union, this would mean that the rump UK would retain the UK’s membership, whilst Scotland would have to be admitted as a new member.

Nonetheless, although the opinion adds weight to the arguments advanced, it might be thought unlikely to end the controversy, given the political sensitivities involved. Already, nationalist voices have dismissed it as simply the views of two among many commentators, whom of both, moreover, were paid by the British government to provide the advice.

This would be, however, to privilege form over substance. In practice, the two sides have converged in agreeing that negotiations would be required for Scotland to become a Member of the European Union. Read the rest of this entry…

Filed under: States and Statehood
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Boyle and Crawford on Scottish Independence

Published on February 12, 2013        Author: 

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.

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Scottish Independence and the European Union

Published on October 31, 2012        Author: 

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.

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