International Political and Legal Implications of Scottish Independence David Scheffer Working Papers

International Political and Legal
Implications of Scottish Independence
David Scheffer
Working Papers m 2013:01
Adam Smith Research Foundation
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Working Papers m 2013:01
International Political and Legal
Implications of Scottish Independence
David Scheffer
February 2013
Adam Smith Research Foundation . Working Papers Series
Acknowledgements
An earlier version of this paper was delivered by the author at the University of Glasgow, Scotland, on 22 January
2013 in its Security and an Independent Scotland lecture series. Professor Scheffer’s views in this paper are solely his
own and do not necessarily reflect the view of any organization to which he is affiliated. He wishes to thank Amanda
Leese, a law student at Northwestern University School of Law, for her research assistance and Visiting Assistant
Professor Caroline Kaeb at Northwestern Law for her review and advice regarding this paper.
All rights reserved by the author. No part of this paper may be republished quoted without the express permission of
the author.
About the author
Professor David Scheffer is Mayer Brown/Robert A. Helman Professor of Law and Director, Center for International
Human Rights, Northwestern University School of Law, Chicago, Illinois.
2
International Political and Legal Implications of Scottish
Independence
M
y late colleague at Northwestern University School of Law, Professor Ian MacNeil, was the
46th Chief of the MacNeil Clan. His Kisimul Castle was granted to Historic Scotland in 2000
and his estate on the island of Barra was transferred to the Scottish Government in 2003.
Professor MacNeil, whose clan motto is “Victory or Death,” was a persistent advocate of Scottish
independence within our law school walls in Chicago and habitually referred to “William the usurper.”
When I joined the faculty at Northwestern Law in 2005, I quickly found fierce Scottish blood flowing
through the halls, and it reminded me of an earlier time in my life, one that remains relevant for
contemporary realities.
Almost four decades ago I wrote in The Harvard
Political Review: “To visit Scotland today is to witness
a nation convulsed by the throes of modernization.
Caught between the lost prosperity of the industrial
revolution and the sudden wealth of North Sea
oil, Scotland is a land fixated upon change. Old
industrial structures and dismal economic statistics
are being surpassed by technological breakthroughs
in oil exploration and falling unemployment rates. In
the course of one year, 1974, Scottish politics has
emerged from centuries of stagnation to become the
most innovative regional phenomenon in Western
Europe. Two British elections, in February and October,
revolutionized not only the entire spectrum of politics in
Scotland, but they laid the foundation for the possible
re-emergence of a country subsumed since 1707.
The possibility of independence from Great Britain is
no longer a laughing matter. Pressure to disentangle
politico-economic centralization from London has
guaranteed the Scots certain political upheaval for
years to come. In even the most remote areas of
Scotland, the talk is of change. Scots who have been
isolated all their lives in backward heather country now
bicker over the siting of oil-platform construction sites.
Never in its history has Scotland been in such ‘civil’
turmoil. By the close of this decade, the home of the
kilt promises to be a significantly different nation from
what it was only a year ago.”
of North Sea Oil.” I had spent September 1974 on
buses and trains throughout Scotland, with the heather
transforming gloriously before my eyes, including an
extraordinary rail journey from Inverness to Kyle of
Lochalsh, interviewing Members of Parliament, young
SNP politicians, oil executives, and scholars about
the rising tide of Scottish nationalism and the pull of
North Sea oil. A year later, in late 1975, while at Oxford
studying law I wrote in The Nation magazine that,
“Devolution means that a single act of Parliament will
restructure British democracy without constitutionally
mandating what is basically a politically motivated
hodgepodge of government by appeasement… .
The British have lost themselves in the devolution
maze. Devolution poses so many hypothetical
uncertainties and dangers that it seriously threatens
the stability of the existing political system. Once the
Scottish National Party gains a majority in the Scottish
Assembly (a predictable certainty), it will not accept
I wrote those words at Harvard University, where I
was a student writing my senior thesis on “Processes
of Modernization in Scotland: The Political Economy
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Adam Smith Research Foundation . Working Papers Series
responsibility without power… . Without a modern
constitution that specifies the divisions of government,
provides for a bill of rights, and establishes a legal
alternative to the sovereignty of Parliament, the United
Kingdom is embracing an ambiguous and unbalanced
scheme of democracy that will fuel the fires of
separatism.” And so it has.
Shortly thereafter, during the summers of 1976 and
1977, I labored in London for the General Counsel
of Phillips Petroleum Europe-Africa on tort liability
and joint venture issues arising in its North Sea oil
explorations, and witnessed up close the reality of
North Sea oil. Aside from my abiding interest in selfdetermination, however, this is my first opportunity to
return to a passion I once held and now reaffirm for the
fate of Scotland.
I ask you, somewhat remarkably, will we, two years
from now following the referendum, witness a
significantly different nation from what it is today?
Will we observe a nation on a certain path towards
restored sovereignty, independence, and economic
prosperity? Surely, there are many different views
about that question.
The modern exercise of self-determination has
advanced far beyond what most would have predicted
decades ago. The Scotland Act of 1998 created the
Scottish Executive and Scottish Parliament as central
pillars of devolution. In 2011, the Scottish National
Party won a majority of seats in the Scottish Parliament
and First Minister Alex Salmond assumed greater
power at the head of the Scottish Government and
continued the Scottish National Party’s advocacy for
independence. In October 2012, British Prime Minister
David Cameron and First Minister Salmond signed
the Edinburgh agreement setting up a referendum on
Scottish independence that will be held in late 2014.
For decades North Sea oil has generated significant
financial resources for the British Government, of
which Scotland receives a percentage that has been
deemed inadequate by the Scottish Government.
I have read a great deal in recent months about the
drive for Scottish independence and the views and
assessments of many scholars, lawyers, and politicians
about what the law may pronounce and what politics
may dictate. I certainly do not intend on these pages
to provide the definitive ruling on what international
law requires if the Scottish people vote “yes” for
independence in 2014. Frankly, anyone who pretends to
know precisely what international law mandates under
these fairly unique circumstances should be viewed
4
skeptically in the halls of policy-making. Scotland’s past,
present, and future are sui generis and that fact alone
makes an enormous difference in how law and politics
pragmatically join in coming months to chart a pathway
either to a state of continued devolution of political
and economic power within the United Kingdom or to
a state of independence for Scotland apart from the
United Kingdom.
If there were ever a debatable area of law to examine
publicly, this is it. International law issues bear greatly
upon any upheaval of State sovereignty, but in the
end political factors will shape the legal parameters
of the quest for Scottish independence. Politicians will
do what they must to reflect the will of the people and
international law will be so instructed and influenced
when they do.
The most important principle regarding the
legal implications of Scottish independence is
that while nothing in international law prevents
Scottish independence, nothing in international
law or European Union Law is certain about the
consequences of Scottish independence. This is not
terra firma. It is an exercise that should draw upon both
the heritage of a distant sovereignty and the pragmatic
realities of modernization.
The fate of Scotland under international law rests on
the realities of Scotland’s unique history of union with
the remainder of the United Kingdom since 1707, of
the United Kingdom’s membership and role in the
European Union and the Security Council of the United
Nations—facts that deeply intertwine Scotland with the
fate of the United Kingdom before those organizations,
and of the complex of treaties in which the United
Kingdom is a party—the number (14,000) and diverse
character are such that determining the role of
Scotland in those treaties as independence unfolds
will be no easy formula.
But every one of these tough issues, and so many
more, can be resolved through a combination
of smart diplomacy by and political negotiations
between Holyrood and London and with the family of
governments and institutions comprising the European
Union and, with singular importance, the U.N. Security
Council. While law will have its role to play in the
months and years ahead, Scottish independence,
if that is indeed what emerges from the referendum
vote, will be a high-stakes political endeavor of
unprecedented risks and opportunities. International
law will inform every step of the way, but political
negotiations and diplomacy will dictate the outcome.
International Political and Legal Implications of Scottish Independence . Scheffer
The uncertainties, indeed flexibility, of international law
in the Scottish experiment with modern governance
nonetheless will be grounded in at least seven
areas of inquiry, including: Scotland’s Right of
Self-Determination, Recognition of an Independent
Scotland, State and Treaty Succession, The European
Union, International Organizations, NATO, and Law
of the Sea. Note that I take the liberty of referencing
a United Kingdom that one day may be without
Scotland as a constituent part as the “remainder
of the United Kingdom,” or “rUK.” I realize others
prefer other formulations, including just sticking
with the “United Kingdom.” But I have to distinguish
between the United Kingdom today and what might
result if Scotland achieves independence, so that
we have clarity in our discussion without suggesting
prejudicially any particular formulation.
I. Scotland’s Right of Self-Determination
First, the right of self-determination is a very powerful
core principle in both human rights law and the
broader field of international law; it is a right that must
not be debilitated by dated presumptions of its true
character in the modern world. The legal principle
of self-determination has deeply influenced the
devolution era of Scottish politics and it can have a
profound impact on the quest for independence.
The right of self-determination has been long held to be
a jus cogens principle under international law. Scotland
is one of the most dynamic laboratories in the world for
the modern expression of that principle and how it will
be defined for the 21st Century. Following decades of
evolving theory and practice of devolution, which is one
of the more pragmatic expressions of self-determination
of our time, the democratic expression of the free will of
the Scottish people in a referendum for independence
held in 2014 should fulfill the most ideal formulation
for self-determination in the post-colonial world. The
Scottish experience has almost nothing to do with
colonialism and the understanding of self-determination
during the 20th century following either World War I
and the Versailles Treaty or the post-World War II era of
decolonization.10
that have rapidly emerged in the last two decades
following the dissolution of the Soviet Union and the
former Yugoslavia. These standards present no real
difficulty for Scotland and will be examined more
thoroughly later. So there should be little controversy
over Scotland’s capabilities to exercise, successfully,
the standards set for modern expressions of
self-determination.
The right of self-determination, enshrined in the 1966
International Covenants on Civil and Political Rights
(ICCPR)12 and on Economic, Social, and Cultural
Rights (ICESCR),13 as well as the U.N. Charter and in
numerous UN resolutions over the decades,14 creates
the foundation upon which much else follows. But
one should interpret this right using a modern frame
of reference and not the decolonization theories and
practices of the past century. I would part ways with
such legal scholars as the late Antonio Cassese,
whom I knew well, worked with, and deeply respected,
but who held a rather narrow and anachronistic
view of self-determination, one that was grounded
in the primacy of sustaining national cohesion
following decolonization. Scotland is not a case of
decolonization and certainly not one of simple “internal
self-determination.”15 That constitutes an entirely
unsatisfactory description.
For Scotland represents a fresh manifestation of
modern self-determination, evolving step-by-step
through stages of sophisticated and politically
dynamic devolution to the doorstep of a popular
referendum. Whatever benefits accrue to Scotland
from exercising the jus cogens right of selfdetermination, they should be recognized as such.
However, this also means that considerable power
resides in the people and thus much rests upon the
projected 2014 referendum and its result. This will
have an impact on the prospects for recognition of
an independent Scotland by foreign nations and
international organizations as well.
Scotland’s endeavor is a very modern form of selfdetermination with deep historical roots reaching back
to its own sovereign nationhood and yet centered on
what I have described elsewhere as sub-state selfdetermination, only in this unique case the “sub-state”
was once the sovereign nation of Scotland prior to
the Treaty of Union in 1707.11 The exercise of this
right normally would need to fulfill certain standards
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As noted, Scotland, as a modern manifestation of the
principle of self-determination, is an example of substate self-determination, which embraces devolution
and yet is defined by a historical union of formerly
independent nations now confronting separation that
restores their original sovereignties. Twenty years
ago, in my co-authored book, Self-Determination in
the New World Order, my co-authors and I wrote that,
“‘Sub-state’ self-determination describes the attempt
of a group within an existing state to break off and
form a new state or to achieve a greater degree of
political or cultural autonomy within the existing state.
[Footnote 5: We avoid using more common terms
such as ‘secessionist’ or ‘separatist’ self-determination
to emphasize that a sub-state movement may not
seek full independence and that self-determination
claims can often be resolved with steps short of
full independence.] Sub-state self-determination
movements may be based on ethnic, geographic,
historical, or economic factors. They include only
claims by groups concentrated in a particular
geographic area; claims of dispersed peoples are
treated in a separate category.”16 At the time, 1992,
with respect to the United Kingdom, we identified
Northern Ireland, Scotland, and Wales as examples
of sub-state self-determination movements within
the United Kingdom, obviously of varied degrees of
strength and practical relevance.17
My co-authors and I further wrote that, “Substate claims often have been reasonably met by
federalism. Francophone movements in Canada,
Tamil movements in India, and Ibo movements in
Nigeria have been contained—albeit with occasional
eruptions—within federal structural bargains. For
many years, the same could have been said for Tamil
claims in Sri Lanka or Albanian claims in the Serbian
province of Kosovo in Yugoslavia. Once the federal
bargains were broken…in the mid-1950s in the case
of Sri Lanka and, more recently, by Serbian president
Slobodan Milosevic in the case of Yugoslavia,
the sub-state claims focused on demands for full
independence.”18 Although Tamil sub-nationalism has
been thwarted, Kosovo today stands as a de facto
and perhaps by now de jure independent nation,
recognized as such by more than 90 countries,
including the United Kingdom and 21 other European
Union states.19
Scotland has experienced both the classical formula
of internal self-determination and is moving relatively
quickly now towards a modern expression of external
self-determination, but it is doing so based upon its
largely sui generis character. In conventional terms,
6
the devolution movement has been the internal selfdetermination moment for Scotland. This embodies
the concept that the people have the right to
meaningful participation in the political process. Only
through such participation could people choose their
own social order and form of government—thus fully
exercising a right to internal self-determination. The
Scotland Act of 1998 and the creation and operation
of the Scottish Executive and Parliament are signal
indicators of such internal self-determination.
“External self-determination” means that people have
the right to choose their own sovereignty—that is, to
be free from external coercion or alien domination.
President Woodrow Wilson embraced this notion
when, in identifying American war aims in 1917, he
spoke of upholding “the liberty, the self-government,
and the undictated development of all peoples…. No
people must be forced under sovereignty under which
it does not wish to live. No territory must change hands
except for the purpose of securing those who inhabit it
a fair chance of life and liberty.”20
But Scotland is greatly distinguished from the
decolonization concept of self-determination that
dominated primarily the post-World War II landscape
for several decades. It has moved far beyond that,
which is why I have long identified Scotland with
sub-state self-determination as it moved through
devolution and now stands at the precipice of fullscale independence. The novel feature of the Scottish
experience is that one is dealing primarily with a
dual-state historical phenomenon, of two states joined
in 1707 and now on the verge of potentially splitting
apart. The sub-state of Scotland actually is the former
independent state of Scotland, of more than three
centuries past, reasserting its full sovereignty. There is
no rule of international law preventing that restoration
of sovereignty through peaceful means and within the
context of modern self-determination theory. Thus the
basis for and legitimacy of the referendum of 2014 is
well established.
II. Recognition of an Independent
Scotland
In the event the Scottish people vote in the affirmative
for independence in the 2014 referendum, there
should be a strategy in place for ultimate recognition
of an independent Scotland by foreign governments.
That strategy should include Scottish pledges on
a number of good governance factors normally
expected of new governments and states. Prior
consultation with foreign governments about Scottish
International Political and Legal Implications of Scottish Independence . Scheffer
commitments to core principles of good governance
should facilitate rapid recognition of an independent
Scotland if and when it is formally achieved, perhaps
as early as 2016.21
Scottish emissaries should be laying the ground
work through a coordinated plan to ensure that
once independence is on the horizon following an
affirmative referendum vote, if that indeed occurs,
key foreign governments recognize both the state
and government of Scotland as a sovereign unity
in one step. One could embrace, for pragmatic
reasons, periods of de facto recognition of Scottish
independence similar to Kosovo prior to de jure
recognition, and there are historical examples of
this tactic.22 But Holyrood should strive for obtaining
de jure recognition with the fewest complications
following independence. The recognition formula
should be manageable to negotiate, with the Scottish
envoy pledging that an independent Scotland is
going the extra distance to meet modern conditions
for recognition that have emerged during the last two
decades.
I take the liberty to draw upon some of the
conditionality that my co-authors and I proposed 20
years ago in connection with the break-up of the Soviet
Union and of Yugoslavia, which admittedly are two
very different scenarios from the Scotland experience.
But they provide a useful back-drop to what Scotland
can easily satisfy, thus facilitating rapid recognition of
its independence and timely admission to the United
Nations. These criteria for transition to independent
statehood are as follows:
a). U.N. Standards of Admission. Pursuant to
Article 4(1) of the U.N. Charter, the standards
for admission of a state to the United Nations
require that the state be “peace-loving,”
accept the obligations in the U.N. Charter,
and be “able and willing to carry out these
obligations.”23 Scotland so qualifies and could
not be plausibly challenged on those criteria at
the United Nations.
independence. International law consists of
both a large body of customary norms (that
in the view of many scholars automatically
would bind any newly emerging state) and of
numerous treaties and conventions, some of
which may have complicated outcomes with
two successor States. Therefore, the Scottish
pledge will need to be specific with respect to
what codified international law will be endorsed
and comprehensive enough to guarantee the
rights and obligations found in customary
international law.
c). Inviolability of Borders. Scotland should
explicitly recognize and respect existing
international boundaries and internal borders
dividing Scotland and England, both on land
and at sea, and of course the territorial sea
demarcations with Norway and the remainder
of the United Kingdom. The territorial sea
boundary in the North Sea between Scotland
and rUK will be subject to negotiation, which I
also examine below, but as long as there is a
peaceful negotiation or adjudication process
underway, that should suffice for recognition
purposes.
d). Non-Use of Force. The “peace-loving”
condition of Article 4(1) of the U.N. Charter is
easily embraced by an independent Scotland.
But there could be some utility, in laying the
groundwork for rapid recognition by major
governments, to go a bit further with Scotland’s
pledge. The Scottish National Party already
has staked its foreign policy on a non-nuclear
weapons future24 and that could be freshly
articulated, although it may require a pragmatic
caveat regarding the immediate future of British
nuclear submarines at Faslane. Beyond that,
however, Scotland could pledge, 1) that it will
not seek to use force to settle any boundary
b). Adherence to International Law. I will have
more to examine about this when discussing
the law of succession of states below, but
under this condition Scotland would pledge to
adhere to the general principles of international
law. In addition, Scotland could commit to
upholding the specific international legal
obligations of the predecessor United Kingdom
that logically carry over with Scotland’s
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Adam Smith Research Foundation . Working Papers Series
dispute or to resolve an irredentist claim, and it
will resolve such disputes by peaceful means
including, if necessary, submitting the matter
to mediation, conciliation, arbitration, or the
International Court of Justice; 2) to adhere
to the Nuclear Non-Proliferation Treaty as a
non-nuclear weapons state once the situation
with Faslane and British nuclear-armed
submarines is satisfactorily resolved, and that
could take time; and 3) to accept limits on
the size of conventional military forces that
are consistent both with self-defense and
NATO membership if indeed Scotland wishes
to remain part of NATO; and 4) to commit to
resolve disputes by peaceful means, to use
force only in self-defense or as part of an action
of collective security (including NATO and U.N.
peacekeeping operations), and to comply with
the procedural requirements of the U.N. Charter
and Article 5 of the NATO Treaty to confront
aggression by other states.25
e). Peaceful Settlement of Disputes. Scotland
should commit to peaceful settlement of
international disputes. It should consider
joining, at the appropriate time, relevant
arbitration conventions and submitting to the
compulsory jurisdiction of the International
Court of Justice.26
f). Constitutional Democracy. The
Scottish Government is well on the way to
demonstrating its adherence to fundamental
tenets of a modern constitutional democracy.
The Scottish National Party introduced basic
principles for a Constitution in 2002 and
the Scottish Government elaborated on its
desired methodology in February 2013.27
There are several basic constitutional elements
that Scottish law and European Union law
address in one form or another, but not within
a Scottish or, for that matter, United Kingdom
constitutional framework.
In its totality, the constitution of Scotland must provide
protection for the rights of individuals and of minority
groups and protect them from arbitrary governmental
and police action. Periodic free elections, of course,
are a cornerstone of constitutional democracy. So too
is guaranteeing the right of political dissent. People
must have the right, free from the fear of arrest, to
express their opposition to the government and its
policies and actions. They must have the ability to
communicate these views to others through such
8
means as freedom of the press and assembly. In
order to ensure rights for all peoples, the government
should enact limits on the right of the police to arrest
people and to hold them without public charges or
a trial. Such rights and limitations already are well
recognized in Scottish law.28 The real challenge for
constitution-drafting in Scotland is to envisage what
might be required beyond what the Scottish people
will naturally determine is reflective of and thus should
be incorporated from existing rights under Scottish law
and European Union law.
In January 2013, First Minister Alex Salmond
articulated the need to consider, in the context
of Scotland’s Constitution, “fundamental human
concerns, the key economic, social and environmental
needs of every citizen and the responsibilities of state
and citizen towards each other.”29 He referenced
the right to education, the rights of the homeless,
a constitutional ban on the possession of nuclear
weapons, and the use of Scottish armed forces and
what constitutional safeguards should be established
for the use of Scottish troops.30
Although the First Minister’s proposal has provoked
responses from some who view the proposed rights
and duties as too constraining on the Scottish
Government following independence,31 they are not
particularly provocative. From a comparative point of
view, economic, social, environmental, and indeed
security concerns are reflected in constitutions around
the world in modern times. For example, environmental
rights and duties provisions appear in many
constitutions in addition to roadmaps for implementing
such rights, as with the constitutions of India,32
Poland,33 Argentina,34 and Ghana.35 The South African
Constitution guarantees everyone the “right to have
access to adequate housing.”36 It also provides the
right to have access to health care services, sufficient
food and water, and social security.37
In India, the constitutional nod to “directive principles
of state policy” (Part IV of the Indian Constitution)
at first was interpreted as it reads, namely, “The
provisions contained in this Part shall not be enforced
by any court, but the principles therein laid down
are nevertheless fundamental in the governance of
the country and it shall be the duty of the State to
apply these principles in making laws.”38 Article 39
elaborates this concept by stating that, “The State
shall, in particular, direct its policy towards securing”
adequate means of livelihood, equal pay for equal
work for both men and women, the health and
strength of workers, both men and women, and that
International Political and Legal Implications of Scottish Independence . Scheffer
children are protected against exploitation and moral
and material abandonment.39 Article 41 of the Indian
Constitution provides that, “The State shall, within
the limits of its economic capacity and development
[important qualifiers, no doubt], make effective
provision for securing the right to work, to education
and to public assistance in cases of unemployment,
old age, sickness and disablement, and in other cases
of undeserved want.”40
The Supreme Court of India, in an important line
of cases41 has begun to transform some of these
so-called “directive principles” into constitutionally
protected rights and duties.42 But the concept of
India’s “directive principles” is one that should not be
ignored in the drafting of the Scottish Constitution as
they can provide a political bridge to the incorporation
of these additional categories of rights and duties into
a constitution.
Further, an independent Scotland’s presumed
continued participation in the European Convention
on Human Rights43 and the International Covenant
on Economic, Social, and Cultural Rights,44 where a
broad range of rights are well-known and increasingly
established now, would provide added momentum
and legitimacy to the proposals tabled by First Minister
Salmond. Such concepts found in the International
Covenant on Economic, Social and Cultural Rights
as “progressive realization” and “appropriate steps”
and “appropriate means” can be applied to national
constitutional law as well, so that the skeptical view
fearful of automaticity of state obligations for such
rights and duties is addressed realistically within the
constitutional text.
It likely will not be possible to finalize the Scottish
Constitution prior to independence, as one would
assume a constitutional convention for that purpose
would be convened immediately after independence,
as has First Minister Salmond has suggested.45 But
Scotland would want to entice diplomatic recognition
as quickly as possible upon achieving independence.
So the sooner the text of a plausible concept for
the draft constitution is tabled in anticipation of the
constitutional convention, and that tabling is well
communicated to foreign governments, they may feel
more comfortable recognizing the newly independent
Scotland as soon as possible upon independence. Of
course, some foreign governments may not care, but
others may care or use the absence of a constitution
as the basis, however credible, for delaying
recognition, perhaps in deference to their long-held
loyalty to London. Thus the prospect for constitutional
democracy in Scotland should be a powerful tool in
the nation’s recognition strategy.
III. State and Treaty Succession
International law is, in essence, both a journey through
history and a leap towards a vision for the future.
Scotland and its quest for independence is Exhibit A.
While it is tempting to discover customary international
law that would confirm immutable rules, there is not
enough content to that customary law to address the
peculiarities of Scotland. So one must proceed very
cautiously when speaking of customary international
law, particularly when its content remains subject to
conflicting views.46 In that context, the law of state
succession is hardly settled47 and involves modern
evolutionary trends that will be greatly informed by the
Scottish example. Particularly in the realm of treaty law,
both bilateral and multilateral, the fate of Scotland’s
ties to the treaties currently binding the United
Kingdom is uncertain but also susceptible to a great
deal of pragmatic reformulation in the years ahead.
The two legal procedures of state succession
and treaty succession will be perhaps the most
complex endeavor of any serious bid for Scottish
independence. In my view, contemporary application
of legal principles in both fields of succession points
to the following conclusions: While the remainder of
the United Kingdom of 57.4 million citizens would
be larger than Scotland of 5.2 million citizens, the
fundamental premise of Scottish independence
is to regain the sovereignty of pre-1707. Thus the
break-up should be viewed as two successor States
of equal legitimacy—not size, wealth, or power, but
legitimacy—and in that circumstance both successor
States should lay equal claim to the continuation of
treaty relations established in the past by the United
Kingdom. This means a continuation for both States,
and not some static notion of United Kingdom treaty
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Adam Smith Research Foundation . Working Papers Series
relations unaltered while Scotland has to start fresh,
either under a flawed clean slate theory or alone in the
world of unilateral declarations. Continuation of two
States, separated once again, albeit more than three
centuries later, could be the operative presumption;
modern international law can absorb, indeed
encourage, that concept because it rests upon the
rich heritage of the origins of the territory of the United
Kingdom, and that is something that international
jurists can comfortably grasp.
Most examples of self-determination and of the law
of state succession and treaty law do not exhibit the
simplicity of the historical fact of Scottish sovereignty
three centuries ago. There were sharp demarcations
of sovereignty, albeit ruled under a single crown for
many years, between Scotland from the remainder of
the United Kingdom before 1707 and there is no basis
in international law to ignore that reality today despite
the Treaty of Union’s presumptive union of “forever.”
We have seen unfold in Scotland since the 1970s a
distinctly modern adaptation to that historical reality,
one fueled with the economic prospects of North
Sea oil and the political forces of devolution. If one
were to plot a natural progression from a kingdom of
unity, namely the United Kingdom, to the separation
of Scotland and rUK into two sovereign nations once
again, then a rational pathway through devolution to
independence demonstrates a logical trajectory. The
2014 referendum is the next reasonable step. In short,
under international law there are no insurmountable
obstacles to achieving independence. There is
however a political process that must address the
presumptive requirements of international law.
Article 34(1) of the 1978 Vienna Convention on
Succession of States in Respect of Treaties,48 which
confirms the continuation of treaty obligations by
a successor state in a modern context outside of
decolonization efforts, falls, in the views of some
scholars, short of customary international law.49 The
Convention came into force in 1996, and only 22
nations have joined it,50 but there remains an oddly
static view held by some scholars that what they
believe to be customary international law trumps
the 1978 Convention, thus sustaining what is now
an utterly antiquated allegiance to the clean slate
theory, which itself was grounded in the long-passed
decolonization era.
Welcome to 2013, for the time has arrived to challenge
that presumption. Modernity and surely the will of
the international community suggest that Scotland
embrace the continuation of treaty obligations, within
10
a pragmatic political framework, carefully considered
and deftly negotiated, of what should and should not
be continued in force for an independent Scotland.
London and foreign governments will have key roles
to play in politically endorsing or acquiescing in
Scotland’s continuation of a large number of British
treaty obligations, but that should be a natural feature
of negotiated strategies with London and governments
and international organizations in the future. Scottish
officials would be mistaken, however, to believe that
they would negotiate from weakness. They would
negotiate within the realm of modern international
law, even if they may find themselves precariously
positioned at times during its implementation.
Bear in mind that customary international law,
particularly as it is interpreted by scholars schooled
in the decolonization era, has very little to do with
Scotland’s sui generis and recently thoroughly
modernist character. Every aspect of Scottish
independence will be largely sui generis and the
legal formulas applied to it will evolve accordingly.
The Scottish situation does invite a simpler formula,
though. Each of the two States, Scotland and rUK,
would declare, preferably following negotiations, which
treaties they intend to continue to enforce and which
treaties they would withdraw from where withdrawal is
permitted. Scotland, probably more than the United
Kingdom, will have to take its chances with other
nations and whether or not they accept the new treaty
arrangements (bilateral or multilateral). This is where
advance diplomacy, seeking essentially acquiescence,
would prove helpful. As London already has rejected
this notion, and insists on viewing Scotland as
a successor State alone while rUK remains the
predecessor and continuing or “continuator” State,
that posture would prove needlessly disruptive of
a transition to Scottish independence. But if that
remains London’s position, then Scotland could
issue a unilateral declaration of interpretation of its
treaty relations and wait for any objections from other
governments. Provided the diplomatic work is carefully
undertaken in advance, such objections may not be
delivered.
From this exercise a new precedent for international
law may emerge: Where a State resurrects its former
nationhood and sovereignty through peaceful
referendum in accordance with democratic principles,
the restored nation may sustain existing treaty relations
where practical and provided there are no explicit
objections from relevant State Parties that cannot be
overcome.
International Political and Legal Implications of Scottish Independence . Scheffer
Scottish independence would not be an exercise
in “clean slate” independence, as enabled under
international law for the era decolonization.51 There
will be British treaties that Scotland may not wish
to continue to adhere to as an independent nation,
but that decision should not be based upon a broad
“clean slate” theory of treaty law on the heels of state
succession. Rather, there should be a thoughtfully
negotiated parsing of treaties to determine which
should continue in force for Scotland and which ones
should be abandoned.
The conventional “clean slate” approach ignores the
deeply intertwined and complex character of treaty
commitments by the United Kingdom and its sub-state
entity, Scotland, and the needs of independence.
In short, this should not be an exercise of rUK
continuing as the sole treaty party, for either bilateral
or multilateral treaties, and Scotland somehow being
cast adrift into a vacuum shorn of all treaty relations.
In fact, Scotland would abdicate its responsibility as
a member of the international community if it were to
walk away from the obligations of, to mention only a
few categories, international human rights, territorial,
law of the sea, and trade treaties, and thus into some
duty-free zone of blissful but reckless independence.
Legal obligations will flow to an independent Scotland
because of its long engagement with United Kingdom
treaties and its status as a co-equal successor State.
Law of recognition principles will require that of
Scotland as a responsible member of the international
community committed to the rule of law.
Perhaps the most workable formula for succession
would be for the British and Scottish Governments to
issue a “declaration of continuity” or “notification of
succession” to the depositary of each relevant treaty
declaring that Scotland and the rUK will continue to
perform designated treaty obligations, followed by the
comprehensive consent of the British and Scottish
Parliaments to such declarations or notifications, thus
establishing a highly credible political decision that will
influence the determination of what international law
requires under the circumstances. Another path would
be a unilateral declaration by the Scottish Parliament
declaring continued adherence to those treaties that
the Scottish Government desires to continue.
Union. The fate of Scotland within the European
Union, however, is not going to be determined with
a one-page pronouncement by the President of the
European Commission on a cold December morning
in Brussels. President José Manuel Barroso claimed
that Scotland would have to go cold turkey and apply
for European Union membership, as if it were a newlyintroduced State to the halls of Brussels following
independence.
Let us step back for a moment and examine President
Barroso’s 10 December 2012 letter. The European
Commission president wrote, “If part of the territory of
a Member State would cease to be part of that state
because it were to become a new independent state,
the Treaties would no longer apply to that territory. In
other words, a new independent state would, by the
fact of its independence, become a third country with
respect to the EU and the Treaties would no longer
apply on its territory.”52 There is nothing previously
written anywhere in EU treaties or jurisprudence that I
am aware of that actually stipulates this point of view.
I could just as easily write the following, which is
a viable option under the law but would be almost
contrary in argument and outcome to President
Barrosso’s statement: “If part of the territory of a
Member State would cease to be part of that state
because it were to become a new independent State
that wished to continue the membership of its territory
and citizens, who are EU citizens, in the European
Union and continue its participation in the Treaties,
talks with appropriate authorities would be arranged
to confirm the modalities for achieving that objective.
In other words, such a new independent State would,
by virtue of its membership in the European Union
as part of the predecessor Member State, be entitled
to continued membership and continued application
of the Treaties on its territory.” There is an alternative
framing with the same outcome, particularly if one
accepts the prospect of two co-equal successor
States arising in the aftermath of a vote for Scottish
IV. The European Union
I am deeply respectful of the European Union and the
European Commission, including its president, and
know how important is the future relationship between
a possibly independent Scotland and the European
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independence. The second sentence might read:
“In other words, such a new independent State
would, by virtue of sharing successor status with
the predecessor State, retain its membership in the
European Union and remain party to the Treaties
following talks with appropriate authorities to confirm
the modalities for the transition to two Member States
where formerly there was one Member State.”
Writing these words, either on my laptop or from
within the Brussels bureaucracy, is not such a big leap
because there is no clear guidance in European Union
law. Brussels’ real objective should be to face this
challenge without being intimidated by the prospect
of an independent Scotland and without a strategy
that clearly would alienate the Scottish Government
and people from the European Union itself and the
European Commission bureaucracy.
There are requirements for State accessions under
the EU treaty that some might claim constitute lex
specialis to any claimed relevant international rules
and standards. According to Article 49 of the Treaty
on the European Union,53 the Council of Ministers
decides unanimously whether to accept a new
applicant State after consulting the Commission and
receiving the consent of the European Parliament.
The European Council may set the “conditions of
eligibility” according to the treaty. The Council of
Ministers and the European Council usually act on
the basis of a Commission opinion that assesses
the eligibility of a candidate State for membership.
Thus, President Barroso may have framed his, and
his advisers’ thinking, in accordance with the usual
accession procedure that guided the admission of
Eastern European States into the European Union.
But that overlooks the reality that the Scottish issue is
not a clear-cut accession situation, but rather a matter
of succession. Of course, if the Scottish Government
advocates a succession strategy with the European
Union, then Holyrood essentially has chosen to retain
membership in the European Union as a successor
State, so that would be an important initial position to
hold firm on.
The economic nature of the European Community
and now Union tends to be over-accounted for at
times, while the traditional or historical premise of
the European Community is sometimes forgotten or
at least neglected. The focus on economic issues
within the European Union and how they influence
membership should not eclipse the fundamental
issues that created the European Community in the
first place after World War II, namely the search for
12
peace and stability in Europe and the protection
of democratic values,54 of which Scottish selfdetermination has been expressing itself for decades
through the devolution process and more recently the
work of the Scottish Executive and Scottish Parliament.
That too is part of the European Union story, as
reflected in part by the fact that the European Union
received the Nobel Peace Prize in 2012, and that was
not for strictly economic achievements.55
The best outcome for Scotland, assuming it wants
to confirm EU membership following a vote for
independence, surely will be one that has been arrived
at through cooperative negotiations with London and
Brussels and not through issuance of legally-framed
pronouncements to the endless frustration and
probable detriment of Scottish citizens and EU citizens
resident in Scotland.
Assuming that an independent Scotland wishes to
remain within the European Union, two factors should
strengthen the assumption of continued EU citizenship
considerably. First, the fact that two successor States
emerge from this process, rather than a continuator
State of the remainder of the United Kingdom and
the successor State of Scotland, should enhance
Scotland’s future with the European Union unless
Brussels requires both States, rUK and Scotland, to
start from scratch with EU membership, and that is
not going to happen. Scotland should be a successor
state on co-equal terms, at least technically, with rUK.
Thus, Brussels would be under considerable political
pressure to negotiate a smooth transition of sustained
membership for both successor states and obviously
continuation of EU citizenship throughout the isles.
British Prime Minister David Cameron’s announced
in a speech on 23 January 2013 his government’s
intention to renegotiate parts of the United
Kingdom’s relations with the European Union and
hold a referendum by 2017 to determine continued
membership in the Union.56 Holding a referendum on
European Union membership for the United Kingdom
in the future ironically casts doubt on London’s
commitment to the European Union at precisely
the same time that the Scottish National Party is
advocating continued European Union membership
for the successor State of Scotland if its independence
referendum receives an affirmative vote.57
Unless European Union and EU Member State leaders
are determined to alienate and punish Scotland and
its people for seeking independence, and indeed
achieving it, what political advantage is to be gained
International Political and Legal Implications of Scottish Independence . Scheffer
by extinguishing EU citizenship if the aim is to maintain
or entice Scotland’s EU membership? The rights of
EU citizenship should follow the successor State,
particularly if two successor States emerge from the
break-up of the United Kingdom.
The Scottish are EU citizens with individual rights
under Scottish law and EU law and these are rights
obviously relevant for an independent Scotland.58
If an independent Scotland were not to achieve
membership in the European Union, would those
rights be automatically extinguished, or is there a
residual body of rights with the European Union that
individual Scots would be entitled to enjoy and enforce
for at least some period of time? And if there are
residual rights, then will not an independent Scotland
be tied to the European Union in a sui generis way?
The easy answer would be that those rights flow
with the State of Scotland itself, and if Scotland is
excluded from the EU, then so too are the Scottish
people and anyone resident on Scottish soil claiming
EU citizenship. But I believe there is more to this
issue than some observers have recognized and what
Brussels probably wishes to focus on, for we are all on
uncharted territory here.
Given such an unprecedented event not contemplated
by any EU treaty, one should be extremely cautious
to dictate any sudden loss of EU citizenship and the
rights associated therewith. Indeed, if an aggrieved
party were to bring this issue before the European
Court of Justice, it would not be surprising if judges,
on equitable grounds alone, would find that EU
citizens in Scotland are entitled, at a minimum, to a
reasonable transition period during which their rights
as voters and to seek redress before the European
Court of Justice are protected and enforced before
whatever successor regime is established, including a
Scotland that completely separates from the European
Union in all respects.
independent sovereignty as a successor State while
the predecessor or continuing State remains party to
the international organization under its original national
identity with continuing rights and obligations. In the
latter example, the successor State presumably must
apply de novo for membership in the international
organization while the predecessor or continuing State
enjoys sustained membership.
An authority on international organization law, C.F.
Amerasinghe, writes, “A more difficult question
arises when states break up, as when in 1947 India
was divided [to] form Pakistan and India, when in
1991 the Soviet Union disintegrated, when in 1992
the Czechoslovak Republic was dissolved or when
in 1992 Yugoslavia broke up. While each case has
been treated on its merits and each institution must
technically decide the issues itself to the extent
that the solutions are not dependent on solutions
in other organizations, the basic principle applied
has been that, if a continuator state to the previous
member can be identified, then that state continues
the membership of the previous member. The
identification of a continuator could depend on
the agreement or vote of the other members of
the organization…. It would seem that, while these
questions [of continuation] may usually be decided
by agreement among the involved states themselves,
ultimately there are no obvious principles upon which
the issues have been decided. There has always
been some element of pragmatism in the solution
reached.”59
Another well-known scholar, Jan Klabbers, counsels,
“[T]he rules of each international organization
will prevail. The problem, however, is that few
organizations have their own rules on the topic,
perhaps for two reasons. One is that issues of
succession are relatively rare (or, more accurately,
were thought to be rare when most constituent
documents were drafted) and tend to come in waves.
V. International Organizations
One of the great unknowns is how the larger
international organizations, among which the
United Kingdom is typically a major member State,
will accommodate sustained membership for
an independent Scotland. There are commonly
no codified rules in the charters of international
organizations envisaging this procedure whereby
an existing member State of the organization
either separates into two free-standing new States
or a part of a member State breaks off to claim
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Thus, decolonization took place largely in the early
1960s; the map of Europe was seriously shaken in
the early 1990s. Second, it is notoriously difficult to
make rules on succession because the modalities of
succession may differ greatly from case to case.”60
The issue of an independent Scotland’s membership
in the United Nations and in other international
organizations such as the World Bank, the International
Monetary Fund, and the International Labour
Organization, need not be a legally-impaired exercise,
but each organization and the fate of Scotland’s
membership in it will require much advance work to
facilitate. If the groundwork is properly laid, and there
is clearly time to do that, Scotland’s membership in the
United Nations, for example, should not be that difficult
to accomplish. The formula for U.N. membership
will be almost entirely a political one and in the end
the exercise will stand as yet one more example of
uniquely crafted membership exercises dictated by the
circumstances, big power interests, and the good will
cultivated by Scottish diplomats between now and any
prospective date of independence.
One critical challenge, as well as one of Scotland’s
greatest leverage points with London, is the United
Kingdom’s status as a permanent member of the
U.N. Security Council and how that singular seat of
power could be affected by Scottish independence.
The example always raised is the break-up of the
Soviet Union and the survival of Russia not only as the
predecessor state that consumed the former USSR
membership at the United Nations, but also as the
state, among all that broke out of the Soviet orbit,
that continued with the full power of the former Soviet
permanent seat on the U.N. Security Council.61
Regardless of the outcome of the independence
referendum, the United Kingdom will want to retain its
full power and authority as a permanent member of the
U.N. Security Council, either as the reaffirmed United
Kingdom following a “no” vote in the referendum or as
rUK following Scotland’s independence. But the latter
will not come without a price. No one should assume
that certain European Union members (consider
Germany, Italy, Spain) or major nations long seeking
a permanent seat on the Council (consider Japan,
Brazil, India, Nigeria, South Africa) will easily accept
a continuation of a British permanent seat when an
important part of the United Kingdom casts off into
independence. This may not be a simple re-play of
Russia’s charmed continuation of the Soviet seat on
the Security Council more than 20 years ago.
14
The negotiated acquiescence of an independent
Scotland in the rUK retention of the permanent seat
in the Security Council is no small matter. London
will look to Holyrood following a “yes” vote for the
referendum to engage in active diplomacy with major
governments to support the continuation of the United
Kingdom permanent seat, controlled by London. That
actually will be a key opportunity to retain Scottish
influence in the Security Council, but the strategy
for using reasonable leverage on London must be
carefully plotted. The long-term gain for Scotland’s role
in world politics as well as the continuation of rUK’s
global power could be substantial.
So, rather than simply sacrifice its current participation
in a permanent seat on the Security Council, an
imminently independent Scotland could negotiate
a continuing de facto role in Security Council
deliberations through the United Kingdom permanent
seat. Holyrood could condition its acquiescence to a
continuation of London’s control over the permanent
Security Council seat with the requirement, first,
that the Scottish permanent representative to the
United Nations would have a permanent chair
among the British seats behind the British permanent
representative in the U.N. Security Council chamber.
Second, the Scottish permanent representative
would have the right to address the Security Council
following full consultation with the British permanent
representative and with credentials facilitated by
the British Government, and only for the purpose
of amplifying and supporting the British position. If
the Scottish Government disputes a British position
being advocated before the Security Council, such
as might have the been the case in 2003 when the
Labor Government pressed for and authorized military
intervention into Iraq alongside American forces, the
Scottish permanent representative would vacate his
or her seat in the Security Council chamber during
consideration of the relevant matter. That would
send a visual signal of disagreement but not entitle
the Scottish ambassador to openly disagree in the
chamber with the rUK ambassador.
Even without such privileges, Scotland can leverage
its acquiescence to the rUK permanent seat on
the Security Council remaining “status quo” and
as powerful as it currently is in exchange for rUK
concessions on other legal or political issues.
There is another feature of international organizations
that should be advantageous for both Scotland
and rUK if independence is achieved. There can be
effectively two seats occupied where only one seat
International Political and Legal Implications of Scottish Independence . Scheffer
can now be held by the United Kingdom in many
institutions. At the International Court of Justice,
instead of there being only a British judge, there some
day could be both British and Scottish judges sitting.
At the International Criminal Court, there could be
both British and Scottish judges presiding, assuming
Scotland assumes State Party status under the Rome
Statute of the International Criminal Court. At other
tribunals and commissions, where typically politics or
constitutional documents stipulate only one seat for
the United Kingdom, there could emerge two positions
filled by citizens of the isles reflecting the intellectual
strength and values of both nations.
Even in the Security Council, Scotland could be
elected occasionally in the future to a non-permanent
seat on the Council. Of course, during any such period
my formula for the Scottish seat behind the rUK seat
probably should be modified to exclude that seat
during the non-permanent membership of Scotland.
This would be a tough formula to negotiate, no doubt,
but one should not underestimate how much leverage
Scotland has with respect to the future membership of
rUK as a permanent member in the Security Council.
VI. NATO
Scotland’s possible participation as a NATO Member
State following independence should be sustainable
if that is the continued will of the Scottish National
Party and the Scottish people,62 but it also should be
seen as a point of considerable leverage that should
be utilized to sustain that treaty relationship. The
fate of the British nuclear submarine fleet docked at
Faslane hangs in the balance and could be a bridge of
cooperation or great tension with London and NATO
headquarters during the transition to independence.63
A negotiated continued membership in NATO, as a
collective security alliance, would enable Scotland
to influence the decisions reached among NATO
Member States to strengthen military capabilities
on the European continent and to project NATO
outside of NATO territory, particularly when such
operations are performed under U.N. Security Council
authorization. One can be confident there will be
many such challenges in the years ahead. If Scotland
wants to be part of that collective security system, then
the obligations of membership will be considerable
and so will be the projection of Scotland to achieve
NATO objectives bearing on defense of borders,
anti-terrorism, humanitarian relief operations, and the
ending of atrocity crimes against civilian populations.
There is no legal impediment to a NATO role for
Scotland, but membership should be tactfully
negotiated as Holyrood has considerable leverage if it
wants to pay the cost in defense budget investments
and the risks of warfare. NATO Member State leaders
presumably would want to encourage Scotland’s fullscale participation in NATO, so there likely would be a
lively and rich discussion of what constitutes Scottish
membership in NATO.
VII. Law of the Sea
Finally, nothing in the law of the sea requires that the
median line be the only method of demarcation of the
North Sea between Scottish and rUK jurisdictions, an
exercise that has an important impact on jurisdiction
over North Sea oil reserves.64 Other formulations can
be considered and might be negotiated, although
Scotland may wish to endorse the median line
demarcation in the North Sea. International law,
including the Law of the Sea Convention, nonetheless
invites negotiated solutions to territorial sea disputes
and the situation in the North Sea may qualify
depending on the opening positions of the two
governments.65
There are risks associated with seeking an alternative
to the median line, as London could seek to draw
the line even further north based upon historical
exploration rights in the North Sea or leverage a line
that is more advantageous for Scotland by demanding
a sizable slice of North Sea revenue in exchange for
a concession on the median line. So Holyrood and
London will have to plot their opening positions well,
recognizing that there are points of leverage held by
each party.
VIII. Summary
It is fairly easy to view international law as a historicallydriven constraint on innovative political solutions
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to tough inter-state issues. I prefer to recognize
in the principles and treaties of international law
opportunities to apply them to modern realities and
determine what works and what might have outlived
its utility in an increasingly complex and dynamic
world. Self-determination has entered a new and
very modern phase of implementation, and Scotland
is at the forefront of that experience. Principles of
State succession must adjust to the unique historical
and contemporary realities of Scotland’s quest
for independence, which points to succession on
co-equal terms with negotiated adjustments in
treaty relations and participation in international
organizations. What may be expected by other
governments to earn rapid diplomatic recognition of
Scotland’s independence could include a uniquely
modern formula of constitutional democracy and will
expect adherence to human rights and U.N. Charter
norms.
Scotland’s membership in the European Union and
the rights of Scottish citizens as EU citizens are
not divorced from the organizational mandates of
the European Union, but those rules should not be
manipulated to deny Scotland what is rightfully its to
claim in the European Union as a long-standing part of
the United Kingdom and future independent member
of the European Union. That is a unique status and
no arbitrary thinking about international or European
Union law and precedents arising from different
circumstances eviscerate that reality. The challenge of
NATO membership reaches far beyond legal principles
to the political will of the Scottish people to assume
the responsibilities of collective security in the NATO
alliance. Scotland’s jurisdiction over North Sea oil
reserves may settle on drawing a median line in that
body of water, as drawing another line would be a
negotiating challenge that international law still permits
and that politicians must ponder deeply.
Postcript
Shortly after the author’s delivery of this paper at
the University of Glasgow on 22 January 2013, Her
Majesty’s Government released on 11 February
2013 lengthy documents entitled, Scotland
analysis: Devolution and the implications of Scottish
independence (February 2013), with attached thereto
Annex A Opinion: Referendum on the Independence
of Scotland—International Law Aspects, authored by
Professor James Crawford SC and Professor Alan
Boyle (together, the HMG opinion.)66 The HMG opinion
deserves a detailed and fulsome analysis, which this
particular paper does not attempt to provide. However,
16
it would be useful to set forth some initial general
observations about the HMG opinion in order to set
the stage for further analysis of it, and the debate that
undoubtedly will ensue, during 2013 and 2014.
The HMG opinion seeks to establish a fait accompli
for the continuator state theory of State succession,
following which all issues pertaining to Scottish
independence are subjugated to that particular
legal theory. Once the legal premise of a continuator
State is argued,67 and repeatedly so throughout the
HMG opinion, then further positions are developed
reinforcing the continuation of the status quo for the
rUK while Scotland must begin as a new State in
almost every respect, particularly in its treaty relations
and membership in international organizations. Thus is
built a pyramid of presumptions based upon the initial
premise of the continuator theory and yet little of which
relates to the sui generis character of the Scottish
situation.
The HMG opinion repeatedly emphasizes the scale
and complexity of legal issues flowing from Scottish
independence, even more so if the continuator
theory holds, as they insist it must. One cannot help
but observe a political objective at work in the HMG
opinion, namely to make the legal implications appear
so burdensome and traumatic for Scotland and its
people, particularly under the presumptive continuator
theory for the rUK, that voters will decide it is not
worth the effort and vote “no” on the independence
referendum.
The HMG opinion presents a false dilemma: If
Scotland votes for independence in the referendum,
then the rUK will act pursuant to the continuator
theory and essentially refuse to cooperate, through
negotiations, for a reasonable transition for both
Scotland and rUK that sustains membership in
international organizations for both States and
provides an amicably negotiated continuation of treaty
relations for both States. (Or, as the HMG opinion
infers, would launch negotiations that may have no
discernible end,68 and thus validate the improbability
of independence.) The HMG opinion assumes a
confrontational negotiating scenario rather than
a cooperative one. It erects the confrontation by
insisting on the continuator theory and then letting all
of the difficulties for a transition flow from that single
presumption.
A far more constructive way of approaching the
transition to independence if there is an affirmative
vote on the referendum would be to adopt a
International Political and Legal Implications of Scottish Independence . Scheffer
methodology of both approval and acquiescence,
namely mutual approval of or acquiesence in
continued membership for both States in international
organizations and approval or acquiescence with
respect to most treaty relations. That would be a
constructive negotiated basis for transition respectful
of the rights of the citizens of both Scotland and the
rUK that would avoid a clean slate approach with slash
and burn consequences that surely would deepen
the rift between Scotland and the rUK for generations.
Why go down such a politically destructive path?
in isolating Scotland while rewarding the rUK. In
return for Scotland’s acquiescence, the rUK would be
expected to readily endorse Scottish membership in,
among other entities, the United Nations, in NATO,
and the European Union, thus smoothing the way for
an agreed transition of Scotland into these entities. As
it stands, the HMG opinion seeks to create the most
difficult pathway when in fact there is a much easier
one to take if only London were willing to help pave it
following a majority vote for Scottish independence in
the referendum.
The great challenge of the negotiations should be how
to manage the approval/acquiescence decisions of
the rUK and Scotland within the rules of international
and regional (European Union) organizations and
with the States Parties of thousands of treaties. If
the rUK and Scotland can reach mutual agreement,
constructively, on how to achieve most efficiently
Scotland’s entry into international and regional
organizations and participation in relevant treaties,
other governments likely would acquiesce in or readily
approve that mutual agreement. Yet the HMG opinion
needlessly points to a far more difficult and injurious
path for Scotland.
London conceivably could even maintain its faith in
the continuator theory while stating that as a practical
matter, and to accommodate the sui generis situation
with Scotland, a transition plan would be negotiated
that in fact creates an alternative means by which to
enable Scotland to sustain treaty and international
and regional organization relations to the greatest
extent possible. Perhaps one cannot expect London
to admit to this prior to the referendum in light of
the HMG opinion, but if there is a majority vote for
independence, then following the referendum the
continuator theory should be shelved so that the
fairest and most efficient transition process can be
negotiated and then followed, including marketing it to
other governments and to international and regional
organizations.
The HMG opinion argues for the centrality of rUK
continued permanent membership in the UN Security
Council, in NATO, in the Non-Proliferation Treaty as
a nuclear weapons State, and as a major economic
power in the International Monetary Fund.69 (It would
appear more difficult, following U.K. Prime Minister
David Cameron’s speech on 23 January 2013 seeking
a referendum on EU membership, to insist on the
centrality of U.K. membership in the European Union,
though the HMG opinion continues to assume as
much.) The continuator theory locks in all of that power
and status quo for the rUK without much fuss, so it
would be expected that they and their legal advisers
advocate it.
Scottish sovereignty more than three centuries
ago in fact existed, whereas concerning almost all
other self-determination movements the fact of past
sovereignty has not been present. Two sovereign
nations entered into the Treaty of Union of 1707. The
HMG opinion emphasizes how the Treaty of Union
united the two nations into “One Kingdom by the
Name of Great Britain” and thus “…Scotland certainly
was extinguished as a matter of international law, by
merger either into an enlarged and renamed England
or into an entirely new state.”70 A major premise
of self-determination is to overcome such rigid
But instead of relying on a debatable legal theory,
as strong as they think it is, London could simply
seek, following the referendum and a “yes” vote,
Scotland’s acquiescence to the continuation of the
rUK’s powerful status in the Security Council, NATO,
the Non-Proliferation Treaty regime, the International
Monetary Fund, and other key entities and treaty
arrangements. The Scottish acquiescence would be
far more convincing to other governments than for the
rUK to advance the continuator theory and hope for
the best (especially in the Security Council). Other
governments likely will be drawn to a cooperative
methodology for transition, rather than one grounded
17
Adam Smith Research Foundation . Working Papers Series
presumptions on highly principled and contemporary
grounds of legal and political theory, particularly where
the historical record favors challenging conventional
thinking. The sui generis character of Scotland derives
from its past sovereignty reasserting itself in a modern
application of self-determination.
The HMG opinion is at its weakest when examining
the rights of EU citizens in Scotland (namely, all
Scottish citizens who also are EU citizens), and even
at times with respect to EU membership per se. One
should note, in the legal opinion set forth in Annex A
of the HMG opinion, paragraphs 164 (acknowledging
what a negotiated agreement could achieve), 167
(the European Court of Justice’s possible disruptive
role), 172.2 (the value of a negotiated outcome),
177 (the expansive reading of EU treaty provisions
being open to negotiation and thus offering a means
to smoothly transition Scotland into the European
Union), 179 (the unprecedented character of Scottish
independence having no clear precedent in EU law,
and thus inviting negotiation), and 180 (negotiating EU
citizenship). One also should note paragraph 132 (no
general rule in international law governing succession
to membership of international organizations) and
paragraph 120, which describes the rules set forth in
the 1978 Vienna Convention on Succession of States
in Respect of Treaties. These rules favor Scotland
but are dismissed in the legal opinion as not yet
customary law and thus not binding on the United
Kingdom. Such a conclusion overlooks paragraph
124’s cautionary point that “in the vast majority of
situations the matter is likely to be regulated by
specific arrangements.” Precisely!
Strict adherence to the continuator theory would place
the burden on Scotland to sink or swim and permit
the rUK enormous leverage that could be used to the
great disadvantage of Scotland (assuming that is the
rUK’s political strategy). I have argued in this paper
for application of a negotiated co-equal successor
State status in the negotiations, because there is a
basis in international law for it and because if the
talks are approached in that spirit, the stage would
be set for far more productive and efficient grants of
approval and acquiescence to facilitate treaty relations
and membership in organizations of an independent
Scotland. Also, a negotiated co-equal successor
State status would not require the rUK to arise from a
“dissolution” of the United Kingdom71 or to lose its EU
or United Nations or NATO or any other membership.
The HMG opinion’s effort to avoid the consequences
of lost membership is a red herring. Scotland can
easily acquiesce to continued rUK membership in
18
international and regional organizations and as State
Party to treaties but within a negotiated formula for
an independent Scotland’s smooth and immediate
participation, where desired, in such treaties and
organizations.
Finally, the HMG opinion’s bold presumption that State
liabilities would have to be negotiated and thus shared
between Scotland and the rUK under the continuator
theory rests on very thin ice.72 On what legal basis
would Scotland be obligated to assume any significant
level of United Kingdom liabilities if the rUK is the
continuator State? The HMG opinion offers no basis for
establishing an obligation to share financial liabilities.
Scotland’s leverage nonetheless would lie in agreeing
to negotiate the sharing of State liabilities if the rUK
sets aside the continuator theory as the basis for
legal implications and agrees, if only on a de facto
basis, to negotiate in good faith with the commitment
to approve and acquiesce where necessary to
facilitate Scotland’s engagement with the international
community.
The objective of both parties in the event of an
affirmative vote for independence under the 2014
referendum should be to create the least resistance
to a transition to the emergence of two independent
States richly endowed in history and to demonstrate
a model for how self-determination can work, not
only for the benefit of the peoples of the isles but also
for the continued strength of the critical bilateral and
multilateral treaties and international and regional
organizations bonded to the United Kingdom at
present. Such an outcome is not mission impossible.
Notes
1. David J. Scheffer, The Year of Scotland,3 Harv. Pol. Rev., 31, 31–36 (1974).
2. David J. Scheffer, Processes of Modernization in Scotland: The Political
Economy of North Sea Oil (1975).
3. David J. Scheffer, Will Britain Break Up?, The Nation, 73, 75–76, Jan. 24,
1976.
4. Scotland Act, 1998, c. 46 § 52 (Eng.).
5. See e.g. Severin Carrell, Stunning SNP election victory throws spotlight
on Scottish independence, The Guardian, May 6, 2011, <http://www.
guardian.co.uk/politics/2011/may/06/snp-election-victory-scottishindependence>; Brian Groom, SNP victory sets stage for independence
vote, Fin. Times, May 6, 2011, <http://www.ft.com/intl/cms/s/0/30777f3e77c8-11e0-ab46-00144feabdc0.html#axzz2KQFXpREK>.
6. Edinburgh Agreement, HM Gov.–Scot., Oct. 15, 2012, available at <http://
www.number10.gov.uk/wp-content/uploads/2012/10/Agreement-final-forsigning.pdf>. See also The Scottish Gov., Historic Edinburgh Agreement
on referendum signed, Oct. 15, 2012, available at <http://www.scotland.
gov.uk/News/Releases/2012/10/referendum15102012>; Andrew Black,
Scottish independence: Cameron and Salmond strike referendum deal,
BBC News Scot. Pol., Oct. 15, 2012, <http://www.bbc.co.uk/news/
uk-scotland-scotland-politics-19942638>.
7. Alexander Kemp & Linda Stephen, The Hypothetical Scottish Share of
Revenues and Expenditures from the UK Continental Shelf 2000–2013,
The Scottish Gov., Research and Discussion Paper Series (2008), <http://
www.scotland.gov.uk/Resource/0039/00390421.pdf>, See also Andrew
Black, Twelve unresolved questions on Scottish independence, BBC
International Political and Legal Implications of Scottish Independence . Scheffer
News Scotland Politics, Jan. 24, 2012, <http://www.bbc.co.uk/news/ukscotland-scotland-politics-16636325> (noting that Scotland could expect
to gain rights to more than 80% of U.K. oil and gas revenue, depending on
negotiations with England).
8. Note that numerous and varied authors have used “rUK” to reference
the portion of the UK that would remain, in the event of Scottish
independence. For recent examples, see e.g. HM Government, Scotland
analysis: Devolution and the implications of Scottish Independence
(February 2013); Jo E. Murkens, Scotland’s Place in Europe, The
Constitution Unit, University College London, School of Public Policy
(2001); Arno Engel & Roderick Parkes, Accommodating an independent
Scotland: how a British-style constitution for the EU could secure
Scotland’s future, European Policy Centre, 24 Oct. 2012.
9. Andrew Clapham, Brierly’s Law of Nations: An Introduction to the Role of
International Law in International Relations 62–63 (7th ed. 2012).
of them, in exercise of the right of individual or collective self-defence
recognised by Article 51 of the Charter of the United Nations, will assist
the Party or Parties so attacked by taking forthwith, individually and in
concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the
North Atlantic area.
26.Statute of the International Court of Justice art. 36, para. 2, Oct. 15, 1946.
Stating:
(“The states parties to the present Statute may at any time declare that
they recognize as compulsory ipso facto and without special agreement,
in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: (a) the interpretation
of a treaty; (b) any question of international law; (c) the existence of any
fact which, if established, would constitute a breach of an international
obligation; (d) the nature or extent of the reparation to be made for the
breach of an international obligation.”). Id.
Note that the United Kingdom has submitted to the compulsory jurisdiction of the ICJ as of July 5, 2004. See North Atlantic Treaty, modified
in 1951, 199 UNTS 67; see also U.N. Treaty Collection, Charter of the
United Nations and Statute of the International Court of Justice, Status
as of Sept. 02, 2013, available at <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=I-4&chapter=1&lang=en#1>.
10.Hurst Hannum, Autonomy, Sovereignty, and Self-Determination: The
Accommodation of Conflicting Rights 27–49 (Revised ed., 1996); Morton H.
Halperin & David J. Scheffer with Patricia L. Small, Self-Determination in the
New World Order 16–25 (1992) [hereinafter “Self-Determination in the New
World Order”].
11.Treaty of Union, Eng.–Scot., May 1, 1707, available at <http://www.
legislation.gov.uk/aosp/1707/7>; see also Michael Fry, The Union: England,
Scotland and the Treaty of 1707 (2006).
12.International Covenant on Civil and Political Rights, art. 49, Dec. 16, 1966,
999 U.N.T.S. 171., available at <http://www2.ohchr.org/english/law/ccpr.
htm>.
13.International Covenant on Economic, Social and Cultural Rights, art.
27, Dec. 16, 1966, 993 U.N.T.S. 3, available at <http://www2.ohchr.org/
english/law/pdf/cescr.pdf>. Regarding both the ICCPR and the ICECSR,
consider “Article I (1): All peoples have the right of self-determination. By
virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development.”
14.See, e.g., U.N. Charter, arts. 1(2) & 55, G.A. Res. 1514 (XV) (Dec. 14,
1960), G.A. Res 2625 (XXV) (Oct. 24, 1970, and G.A. Res. 3314 (XXIX)
(Dec. 14, 1974).
15.Antonio Cassese, International Law 60–64 (2d ed. 2005).
16.Morton H. Halperin & David J. Scheffer with Patricia Small, SelfDetermination in the New World Order 49 (1992).
17.Id. at 143–144.
18.Id. at 50.
19.According to the Ministry of Foreign Affairs, 96 countries have recognized
the Republic of Kosovo as of the end of 2012. See Ministry of Foreign
Affairs, Republic of Kosovo, <http://www.mfa-ks.net/?page=2,33> (last
visited Feb. 9, 2013). Note, also, that Kosovo joined the IMF and World
Bank on June 29, 2009. Press Release, Kosovo Joins the IMF and World
Bank, U.S. Dept. of State Press Release 2009/658 (Jun. 29, 2009).
Any such armed attack and all measures taken as a result thereof shall
immediately be reported to the Security Council. Such measures shall be
terminated when the Security Council has taken the measures necessary
to restore and maintain international peace and security. Id.
27.Scottish National Party, A Constitution for a Free Scotland (Sept.
2002). Text and principals are available with the Constitutional
Commission. Previous Draft Constitutions for an Independent Scotland,
ConstitutionalCommisson.org, www.constitutionalcommission.org/
resources.php (last visited Feb. 10, 2013). See also SNP takes aim at
the Monarchy, BBC News World Edition (Sept. 16 2002, 16:22 GMT),
<http://news.bbc.co.uk/2/hi/uk_news/scotland/2262059.stm>. See
also The Scottish Government, Scotland’s Future: from Referendum to
Independence and a Written Constitution (Feb. 2013).
28.See e.g. Michael Meston, David Sellar & Lord Cooper, The Scottish Legal
Tradition (Scott Styles ed., 1991) (discussing numerous protections and
limitations that contribute to the Scottish legal tradition); Lord Reed &
Jim Murdoch, A Guide to Human Rights Law in Scotland (2d ed. 2008),
1–73 (discussing the combined affect of the European Convention on
Human Rights, The Scotland Act of 1998, The Human Rights Act of 1998,
and Scottish case law on the state of human right law in Scotland). In
his January 2013 speech to the foreign press, First Minister Salmond
acknowledged Scottish legal tradition and identified future objectives.
See also Salmond, Speech to the Foreign Press Association, supra note
21 (noting that, “For centuries, Scotland has had a distinct constitutional
tradition. . .”).
29.Salmond, Speech to the Foreign Press Association, supra note 21.
20.Self-Determination in the New World Order, supra note 16, at 16–17.
30.Id.
21.First Minister Alex Salmond, Speech to the Foreign Press Association
(Jan. 16, 2013) (stating the expectation that, following a yes vote to the
2014 referendum, the first independent Scottish parliament would be
elected, after which an independent Scotland may consider undertaking
policy considerations.); See also The Scottish Government, Scotland’s
Future: from the Referendum to Independence and a Written Constitution,
Feb. 5, 2013 (Scot.) [hereinafter Scotland’s Future], available at <http://
www.scotland.gov.uk/Resource/0041/00413757.pdf>.
31.See e.g. Severin Carrell, Alex Salmond entices left and lawyers with
promise of new rights in a written constitution, The Guardian, Scottish
Independence Blog (Jan. 17, 2013), <http://www.guardian.co.uk/
politics/scottish-independence-blog/2013/jan/17/scottish-constitutionalexsalmond> (noting critiques from legal observers and that “[s]ome
of Salmond’s other political opponents reacted with derision”); Magnus
Gardham, Salmond unveils his vision for rights of Scots, Herald Scotland
(Jan. 17, 2013), <http://www.heraldscotland.com/politics/referendumnews/salmond-unveils-his-vision-of-rights-for-scots.19937300>
(discussing commentary from political opponents).
22.In addition to the example of Kosovo, history supplies several instances
of de facto recognition prior to de jure recognition. For example, the U.K.
recognized the Soviet government de facto in 1921 and de jure in 1924.
Another oft-cited example is U.S. recognition of the State of Israel de
facto, in 1948, prior to de jure recognition. See generally Malcolm Shaw,
International Law 308–30 (4th ed., 1997); Stefan Talman, Recognition of
Governments in International Law 44–65 (1998).
23.U.N. Charter, art. 4, para. 1.
24. Scotland’s Future, supra note 21 at 9, Feb. 5, 2013 (Scot.) (stating
the SNP will “advocate that a written constitution should include a
constitutional ban on nuclear weapons being based in Scotland”),
available at <http://www.scotland.gov.uk/Resource/0041/00413757.pdf>;
see also Hilary Duncanson, Scottish independence: We’ll stay in Nato but
ban Trident, says Alex Salmond, The Scotsman, Oct. 8, 2013, <http://www.
scotsman.com/news/scottish-independence-we-ll-stay-in-nato-but-bantrident-says-alex-salmond-1-2565012>.
25.North Atlantic Treaty, art. 5, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243,
available at <http://www.nato.int/cps/en/natolive/official_texts_17120.
htm>. Art. 5 states the following:
The Parties agree that an armed attack against one or more of them in
Europe or North America shall be considered an attack against them all
and consequently they agree that, if such an armed attack occurs, each
19
Adam Smith Research Foundation . Working Papers Series
32.India Const. pt. IV, art. 48A, available at http://www.indiankanoon.org/
doc/237570/, and at <http://indiacode.nic.in/coiweb/coifiles/part.htm>
(“The State shall endeavour to protect and improve the environment
and to safeguard the forests and wild life of the country.”). See generally
Vijayashri Sripati, Toward Fifty Years of Constitutionalism and Fundamental
Rights in India: Looking Back to See Ahead (1950–2000) 14 Am. U. Int’l L.
Rev. 2, 413–495 (1998).
33. Pol. Const. art. 74, available at <http://www.sejm.gov.pl/prawo/konst/
angielski/kon1.htm>. Article 47 provides the following: “1) Public
authorities shall pursue policies ensuring the ecological security of current
and future generations. 2) Protection of the environment shall be the duty
of public authorities. 3) Everyone shall have the right to be informed of the
quality of the environment and its protection. 4) Public authorities shall
support the activities of citizens to protect and improve the quality of the
environment.” Id.
34. Sec. 41, Constitucion NaciÓnal [Const. Nac.] (Arg.), available at <http://
www.senado.gov.ar/web/interes/constitucion/english.php>. Section 41
provides the following:
(1). All inhabitants are entitled to the right to a healthy and balanced
environment fit for human development in order that productive
activities shall meet present needs without endangering those of
future generations; and shall have the duty to preserve it. As a first
priority, environmental damage shall bring about the obligation to
repair it according to law.
(2). The authorities shall provide for the protection of this right, the
rational use of natural resources, the preservation of the natural
and cultural heritage and of the biological diversity, and shall also
provide for environmental information and education.
(3). The Nation shall regulate the minimum protection standards, and
the provinces those necessary to reinforce them, without altering
their local jurisdictions.
(4). The entry into the national territory of present or potential dangerous
wastes, and of radioactive ones, is forbidden.
35.Ghana Const. (1992), art. 36, § 9, available at <http://www.judicial.gov.
gh/constitution/chapter/chap_6.htm>. Article 36, Section 9 requires the
following:
The State shall take appropriate measures needed to protect and safeguard the national environment for posterity; and shall seek cooperation
with other states and bodies for purposes of protecting the wider international environment for mankind. Id.
36.Henry J. Steiner, Philip Alston, Ryan Goodman, International Human Rights in
Context: Law, Politics, Morals 328 (3d ed. 2008) (citing Section 26 of the
1996 Constitution).
on succession) available at <http://www.parliament.uk/Templates/
BriefingPapers/Pages/BPPdfDownload.aspx?bp-id=SN06110>, with Jo
E. Murkens, Scotland’s Place in Europe, The Constitution Unit, University
College London, School of Public Policy, p4 (2001) (suggesting treatment
of an independent Scotland will hinge on the “rules governing succession
to multilateral treaties in general and [] individual examples of changes
to the territorial application of the EU Treaty,” with particular regard to
the terms of the Vienna Convention on State Succession in Respect
of Treaties) available at <http://www.ucl.ac.uk/spp/publications/unitpublications/68.pdf>.
48.Vienna Convention on Succession of States in respect of Treaties, art.
34(1), Aug. 23, 1978, 1946 U.N.T.S. 3. Which establishes:
49.See e.g. Murkens, Scotland’s place in Europe, supra note 44, at 8 (noting
“there are numerous and severe difficulties relating to the assumption that
the EU Treaty will continue to apply by virtue of Article 34(1)”).
50.Treaty Status of the Vienna Convention on succession of States in
respect of treaties, United Nations Treaty Collection, <http://treaties.
un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXIII2&chapter=23&lang=en> (from the homepage, select “Databases,”
then follow “Status of Treaties,” select “UN,” search for “Chapter XXIII,”
“Section 2.”).
51.See generally Malcolm Shaw, International Law 686–95 (4th ed., 1997).
Shaw discusses, for example, the use of a “clean slate” approach in the
instance of Belgium’s secession from The Netherlands in 1830, Cuba’s
secession from Spain in 1898, and Panama’s secession from Colombia in
1903. See also Restatement (Third) of U.S. Foreign Relations Law, SubChapt.
C: Succession of States.
52.Letter from European Commission President José Manuel Barroso to
the House of Lords Economic Affairs Committee regarding the status
of EU membership for Scotland in the event of independence (10
Dec. 2012), <http://www.parliament.uk/documents/lords-committees/
economic-affairs/ScottishIndependence/EA68_Scotland_and_the_EU_
Barroso’s_reply_to_Lord_Tugendhat_101212.pdf>.
53.Treaty on European Union, art. 49., Feb. 7, 1992, O.J. (C 191)
available at <http://eur-lex.europa.eu/en/treaties/dat/12002M/htm/
C_2002325EN.000501.html> [hereinafter TEU]. Article 49 states:
Any European State which respects the principles set out in Article 6(1)
may apply to become a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the
Commission and after receiving the assent of the European Parliament,
which shall act by an absolute majority of its component members.
The conditions of admission and the adjustments to the Treaties on
which the Union is founded, which such admission entails, shall be
the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all
the contracting States in accordance with their respective constitutional
requirements. Id.
37.See id. at 327–329 (3d ed. 2008).
38.India Const., pt. IV, art. 39, available at <http://indiankanoon.org/
doc/555882/>, and at <http://indiacode.nic.in/coiweb/coifiles/p04.htm>.
39.Id.
40.India Const., pt. IV, art. 41, available at <http://www.indiankanoon.
org/doc/1975922/>, and at <http://indiacode.nic.in/coiweb/fullact1.
asp?tfnm=00%2052>.
41.See Alston et al, supra note 33 at 323–27, (discussing Olga Tellis v.
Bombay Municipal Corporation, A.I.R. 1986 S.C. 18 [right to life and to
livelihood], Petition (Civil) No. 196/2001 People’s Union for Civil Liberties
v. Union of India & Ors [addressing petitioners’ “right to life and the right
of food of those who can ill-afford to provide to their families two meals
day “],State Of Karnataka vs Appa Balu Ingale et al., A.I.R. 1993 S.C.
1126,[addressing a right to water from discrimination], Aquaculture case:
S. Jagannath v. Union of India & Ors, A.I.R. 1996 S.C. 1592 [asserting a
right to livelihood of traditional fishing communities], and Samatha vs State
of A.P. and Ors., A.I.R. 1997 S.C. 3297 [establishing “the right to livelihood
of scheduled tribes against the acquisition of land by a private company,”
see Alston et al, supra note 33 at 325]).
42.Alston et al, supra note 33 at 321–27.
43. [European] Convention for the Protection of Human Rights and
Fundamental Freedoms, 213 U.N.T.S. 222 (entered into force Sept.
3, 1953), available at <http://conventions.coe.int/Treaty/Commun/
ListeTraites.asp?CM=8&CL=ENG>.
44.International Covenant on Economic, Social and Cultural Rights, 993
U.N.T.S. 3, (entered into force Jan. 3, 1976), available at <http://www2.
ohchr.org/english/law/cescr.htm>.
45. Scotland’s Future, supra note 21.
46.Clapham, pp. 57-63; Jack Goldsmith & Eric Posner, The Limits of
International Law (2005).
47.Cf Arabella Thorp & Gavin Thompson, Scotland, independence and
the EU, House of Commons, International Affairs and Defence Section,
Economic Policy and Statistics Section, Standard Note SN/IA/6110
(8 Nov. 2011) (noting the E.U. Treaty does not explicitly outline rules
20
When a part or parts of a territory of a State separate to form one or
more States, whether or not the predecessor State continues to exist: a)
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; […]” Id.
54. See e.g. Klaus-Dieter Borchardt, The ABC of European Union Law, 19–24
(2010) (discussing the fundamental values of the European Union as
“lasting peace, unity, equality, freedom, solidarity and security”) available
at <http://europa.eu/documentation/legislation/pdf/oa8107147_en.pdf>.
See also Treaty on European Union, supra note 50 at art. 2. Article 2 of the
TEU states the values of the Union as follows:
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights,
including the rights of persons belonging to minorities. These values
are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women
and men prevail. Id.
55.The European Union was awarded the Nobel Peace Prize in 2012,
“for over six decades contributed to the advancement of peace and
reconciliation, democracy and human rights in Europe.” European
Union (EU), Nobelprize.org. 10 Feb. 2013 <http://www.nobelprize.org/
nobel_prizes/peace/laureates/2012/eu.html> (last visited Feb. 10, 2013).
56.Prime Minister David Cameron, Speech on the E.U., at Bloomberg
(23 Jan. 2013), <http://www.number10.gov.uk/news/eu-speech-atbloomberg/>. Following the speech, media reported a wave of criticism
from European leaders. See e.g. Steven Brown & Mark John, Selfish,
ignorant, dangerous: Europe’s verdict on Cameron speech, Reuters.com
(Jan. 23, 2013 7:45am EST), <http://www.reuters.com/article/2013/01/23/
us-britain-europe-reaction-idUSBRE90M0MY20130123>.
57.See e.g. Andy Philip, ‘Fundamentally confused’: Alex Salmond
slams David Cameron’s EU speech, The Independent, 23 Jan.
2013, <http://www.independent.co.uk/news/uk/politics/
International Political and Legal Implications of Scottish Independence . Scheffer
fundamentally-confused-alex-salmond-slams-david-camerons-euspeech-8463362.html> (reporting First Minister Salmond’s response that
Prime Minister David Cameron’s speech was “fundamentally confused,”
“painfully short on detail,” and “completely changed” the dialogue
surrounding the Scottish referendum.).
70.Annex A par. 37. See further Annex A pars. 26-49; Scotland analysis pars.
2.21-2.23.
71.Scotland analysis pars. 2.16-2.17; Annex A par. 93.
72.Scotland analysis par. 3.50.
58.Jo Shaw, EU Citizenship and the edges of Europe, European Research
Council, CITSEE Working Paper Series, 2012/19 (University of Edinburgh
School of Law 2012) (discussing the evolving nature of EU citizenship, the
impact of an “activist” European Court of Justice on EU citizenship, and
other factors affecting EU citizenship). Shaw assesses the approach of
some policy makers suggesting “legal reality can follow political reality” in
the event of Scottish independence, and also observes that the positive
dialogue in Scotland towards EU citizenship are unique among other
forces across Europe detracting from the importance of the role of EU
citizenship in shaping the governance problems facing Europe. Id.
59.C.F. Amerasinghe, Principles of the Institutional Law of International
Organizations 111–112 (2d ed. 2005).
60.Jan Klabbers, An Introduction to International Institutional Law 115 (2002).
61.Russia’s assumption of the permanent seat on the U.N. Security Council
formerly held by the Soviet Union was completed through notification
to the Council, through a letter from Russian President Boris Yeltsin, of
Russian’s succession to the seat. See End of the Soviet Union; Soviet U.N.
Seat Taken by Russia, N.Y. Times (Dec. 25, 1991), <http://www.nytimes.
com/1991/12/25/world/end-of-the-soviet-union-soviet-un-seat-taken-byrussia.html>. The letter read simply, as follows:
I have the honour to inform you that the membership of the Union of
Soviet Socialist Republics in the United Nations, including the Security
Council and all other organs and organizations of the United Nations
system, is being continued by the Russian Federation (RSFSR) with the
support of the countries of the Commonwealth of Independent States. In
this connection, I request that the name “the Russian Federation” should
be used in the United Nations in place of the name “the Union of Soviet
Socialist Republics”.
The Russian Federation maintains full responsibility for all the rights and
obligations of the USSR under the Charter of the United Nations, including the financial obligations.
I request you to consider this letter as confirmation of the credentials to
represent the Russian Federation in the United Nations organs for all the
persons currently holding the credentials of representatives of the USSR
to the United Nations.
Letter to the Secretary-General of the United Nations from the President
of the Russian Federation (Dec. 24, 1991) (on file with the International
Atomic Energy Agency), available at <http://www.iaea.org/Publications/
Documents/Infcircs/Others/inf397.shtml#att2>.
62.Severin Carrell, Alex Salmond Gains Slim SNP Vote for Joining Nato, The
Guardian, (Oct. 19, 2012), <http://www.guardian.co.uk/politics/2012/
oct/19/alex-salmond-snp-vote-nato> (citing a narrow vote of 394 to
365 at an annual SNP conference to shift the party’s policy to support
membership in NATO, in the event of a yes vote in a Scottish referendum
in 2014).
63.See generally House of Commons, Scottish Affairs Committee—Fourth
Report, The Referendum on Separation for Scotland: Terminating TridentDays or Decades?, (23 Oct. 2012), <http://www.publications.parliament.
uk/pa/cm201213/cmselect/cmscotaf/676/67602.htm>.
64.See generally Nugzar Dundua, Delimitation of maritime boundaries
between adjacent States, United Nations—The Nippon Foundation Fellow
(2006–2007), <http://www.un.org/depts/los/nippon/unnff_programme_
home/fellows_pages/fellows_papers/dundua_0607_georgia.pdf>
(observing that the median line is “one method among others,” and that
principals such as equity and proportionality must also be weighed, along
with considerations such as geographical circumstances, islands, socioeconomic circumstances, conduct of states, security considerations, and
historic title).
65.Articles 74 and 83 of the United Nations Convention on the Law of the Sea
provide guidelines for assessing territorial disputes between States with
opposite or adjacent coasts. See generally U.N. Convention on the Law
of the Sea 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994; the U.K.
acceded to the Treaty on Aug. 24, 1997).
66.HM Government, Scotland analysis: Devolution and the implications
of Scottish independence (February 2013), and Annex A Opinion:
Referendum on the Independence of Scotland—International Law Aspects
(Professor James Crawford SC and Professor Alan Boyle), at <https://
www.gov.uk/government/publications/scotland-analysis-devolution-andthe-implications-of-scottish-independence> (hereafter Scotland analysis
and Annex A and together, the HMG opinion).
67.Initially at Scotland analysis pars. 2.5-2.52 and Annex A pars. 50-70.
68.Scotland analysis pars. 2.27-2.52.
69.Scotland analysis pars. 3.1-3.21 and Annex A pars. 116-184.
21
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