Nicholas Tsagourias: Getting a seat at the big table might be tricky for Scotland
An independent Scotland could struggle to rejoin the UN and EU. Picture: Phil Wilkinson
If Scotland votes to leave the UK, its membership of the UN and EU would not be automatic, writes Nicholas Tsagourias
WOULD an independent Scotland’s membership of the United Nations and European Union be automatic, or require a new application? In my view, Scotland is not entitled to automatic membership. First, it should be said that international law contains rules on state succession, but the rules are not complete and, thus, supplemented by state practice. Moreover, political considerations play a significant role in the appreciation of events. With that caveat in mind, Scottish independence will be treated in international law as a case of secession according to which one state will continue the legal personality of the previous state whereas the seceding state will be treated as a new state. Consequently, the rump UK (minus Scotland) will continue the legal personality of the UK and its membership of international organisations, whereas Scotland should reapply for membership.
This is confirmed by international practice. For example, when Pakistan seceded from India, the latter was treated as the continuing state, whereas Pakistan reapplied for membership. When South Sudan became independent in July 2011, it applied for UN membership, whereas the rump Sudan was treated as the continuing state.
The rump UK (rUK) and Scotland might come to an agreement as to which state continues the legal personality of the UK and, therefore, succeeds to the UK’s international rights and obligations. But in the absence of such agreement, the UN organs will decide. Their decision will be influenced by political rather than legal factors: which state retains most of the territory and population of the previous state; which has most of the economic or military resources; in which state remains the seat of the government and of governmental departments; which state exercises command over the army and of nuclear weapons. The UK’s permanent seat on the Security Council and the specific responsibilities attached thereto will also be taken into account, as happened with Russia after the dissolution of the Soviet Union. Once these factors are taken into account, it is almost certain the majority of UN member states would accept rUK as the continuing state and treat Scotland as a new state that needs to apply for membership.
The UN membership criteria are laid down in Article 4 of the UN Charter. According to this, the candidate state should be peace-loving, accept all UN Charter obligations and be judged able and willing to carry them out. There is no doubt Scotland would satisfy these criteria. But admission to the UN is made by a decision of the General Assembly on the recommendation of the Security Council. And this is subject to veto, as the recent attempt by Palestine to gain UN membership shows. Whether the UK would cast its veto is a political question. It might use its position to exert pressure on Scotland to settle any dispute or difference that may arise from independence.
If Scotland did not gain UN membership, it would still be a state for international law purposes and other states might very well recognise it. However, it would not have immediate access to the International Court of Justice or to any other UN institutions, unless specifically granted.
Some people may disagree with this. For example, it has been claimed the emergence of an independent Scotland would not be a case of secession but of separation because the UK is a voluntary union. It is further claimed that, in this case, both states (rUK and Scotland) would continue the personality of the UK. This is not correct. According to international practice, both states would be treated as new states and, thus, required to reapply for membership. For example, following the “velvet divorce” between the Czech Republic and Slovakia, both states reapplied for UN membership.
With regard to the EU, there are no rules concerning membership of a new state that secedes from an existing member state and no precedent thus far exists. However, the view that Scotland would not automatically become an EU member but should reapply for membership is supported by the EU Constitutive Treaties. The treaties have been signed by the current member states and apply inter se. They apply to Scotland as part of the UK. If Scotland secedes from the UK, the treaties will not apply to the Scottish territory but will still apply to the rest of the UK. Second, the treaties lay down specific accession criteria and mechanisms and, at each expansion thus far, all new members have been through the accession process. Third, EU enlargement has political, legal and other consequences and would require revision of key provisions of the existing treaties.
There is no doubt Scotland would satisfy the membership criteria, since EU law already applies to Scotland. However, the accession process might still be protracted because of the institutional, political and economic repercussions. For example, member states that benefit from EU funds or policies may frown upon the prospect of Scottish membership, not to mention states that have secessionist movements. This leads to another issue. The decision to accept Scotland as a new member must be unanimous which means that any existing members can cast their veto. Moreover, accession of a new state is subject to referendum in certain states. It is unlikely any member state would ultimately exercise its veto but the power to do so might be used in negotiations to extract concessions. As a result, the terms of Scotland’s membership might, therefore, be more onerous than those of existing members of comparable size.
That said, between now and 2014 the Scottish Government could enter into negotiations with the EU institutions in order to determine its post-independence status should the referendum yield a pro-independence result. Scotland should also enter into discussions with the UK to determine its international law status after independence. The UN, EU and organisations such as Nato are more likely to accept any agreement reached. There is less appetite to accept squabbling members.
• Nicholas Tsagourias is Professor of International Law and Security at Glasgow University.
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Comments
There are 54 comments to this article
Page 1 of 4
mallus12
Monday, February 13, 2012 at 01:20 PMTo all NATS. History never goes in straight lines-it twists and turns,goes off on a tangent and eventually returns to the main line-and you find yourself where you didn't expect and didn't want to be! Take the organisers of the "Durian" episode--how they boasted that Scotland would have it's own colonial trading Empire-and finished up making the Union ! In the end the NATS feebily say THAT WAS THEN AND THIS IS NOW---profound are they not?
Bradged
Saturday, February 11, 2012 at 05:08 PMMuch nonsense spoken here, alongside rare glimpses of common sense. It's almost inevitable that the UK will retain its rights in international law - the loss of less than 10% of its population will be judged to change the agreements, commitments etc which it has entered into (it might be argued that it will become the United Kingdom of England and Northern Ireland, but since the United Kingdom came into effect in 1801 as a result of the Union with Ireland, as amended by the creation of the Irish Free State, all that is happening is a further adjustment. The Union of Scotland and England created Great Britain, not the United Kingdom). Membership of the Council of Europe and the United Nations will come almost automatically. Comparisons with the Palestinian Authority are fanciful. Membership of the European Union will also come, but in time and after real negotiations. There will be no automatic membership, and a mistimed parallel negotiation with the UK around independence could lead to Scotland being put outside the EU negotiating for re-entry. Whether that would be to Scotland's benefit is an arguable point - many believe we would be better as a country in the EEA but not the EU. The main point is that the nature of the European Union is a private club and the members of that club have to agree to all amendments in the club's membership. Each member therefore has a veto, and a number of them will want to make sure there are long and detailed negotiations before Scotland's terms of membership are agreed That doesn't mean they will veto - just that some won't sign up too easily. Suggestions that no negotiations are necessary are clearly wide of the mark. Consider the number of MEPs Scotland would have. Does anyone think we would magically and instantly jump to 13 MEPs at the date of independence? Would the European Parliament recognise the elections which would be necessary without negotiations on Scotland's other terms and before it had been confirmed that an independent Scotland would meet all the conditions of membership, including in areas where the UK is currently responsible?
Anagach
Saturday, February 11, 2012 at 10:42 AMIt is entirely possible that the UN and the EU would prevent Scotland from joining, or make up some new unique conditions which have never been applied to other countries. Its entirely possible, but extremely unlikely. Its the kind of btter and somewhat twisted thinking that emenates from London rather than Brussles or New York.
neoloon
Saturday, February 11, 2012 at 10:35 AMCaveat... What's the point?
Auld Twa
Saturday, February 11, 2012 at 10:31 AM"With that caveat in mind........" In other words this entire article may be based on a falicy. If his assumption is correct than Scotland will not have a share of the UK's debt nor of its assets, at the moment this looks quite an attractive proposition.
JPJ2
Saturday, February 11, 2012 at 10:07 AMVery little in life is "automatic" as we all know-but that is very far from saying something is likely to be difficult. What does seem to be automatic is the ant-SNP stories emanating from MacPravda.
Old Jim
Saturday, February 11, 2012 at 01:56 AMThis Professor is clueless, which is scarey considering he teaches international law (apparently) He assumes that the entity known as the UK will somehow soldier on That is completely false. The UK is a political union of England and Scotland, once you end the union, you end the entity called the UK What of Wales? well Wales is actually anintegral part of England that pre-dates both the union of crowns and the treaty of union between England and Scotland.As for Northern Ireland, they are now thinking about havin a referendum themselves after ours to decide if they want to join the Republic in some way. Remember Northern Ireland is not in the United Kingdom its a province OF the United Kingdom, so no UK, then its not the province of anything and I cant see them wanting to join England. The reality of the matter is, if Scotland decides in independence, then it will effectively seek to dissolve the Treaty and act of Union with england and thereby dissolving the UK. The successor states of the UK, will be England and Scotland, both will apply and be accepted into the UN, both wil apply and be accepted into the EU. There will not be any veto's in either membership application. As successor states. both will be accepted automatically. The period between 2014 the year of the referendum and 2016, which is seen as the completion of the dissalution of the UK will be one of the busiest periods in European history
Old Jim
Saturday, February 11, 2012 at 01:41 AM'If Scotland votes to leave the UK' Actually the vote is about ENDING the union with England and if that happens will end the UK, there will not be a UK, how difficult is that for some people to grasp?? Obviosly the author doesnt grasp the reality There will not be a UK and there will not be a union jack, get over it!
brianwci
Saturday, February 11, 2012 at 12:32 AMI couldn't care less if we weren't allowed into the same building as the big chiefs never mind sitting at the table. Not only does that, or having Trident etc etc not put money in my pocket it actually takes money out of my pocket in order to pay for these useless trinkets. I say useless because we have had Trident and its predecessor Pollaris for over 20 years, costing a fortune and how many times have we used it? ZERO. Ah but it was a deterrent to others I hear you bark. How many times were we attacked? Well none, but then neither was Denmark, Sweden Norway Switzerland or a host of others attacked who didn't have nuclear weapons. And how useful were our nuclear weapons or Americas against the real threat, i.e. terrorism? Absolutely useless. VOTE YES.
Cagey
Friday, February 10, 2012 at 07:51 PMNo it won't.
Newferryman
Friday, February 10, 2012 at 07:51 PMIs it so important to be a member of the EU. Fine if we are in, fine if we are out.
Dr. James Wilkie
Friday, February 10, 2012 at 07:08 PMContrary to the tenor of most comments on this thread, I find the article to be an objective and realistic statement of the legal facts governing independence. The professor is perfectly correct in asserting that the rest-UK would continue with the same status, on the basis of population alone, whereas the new (albeit restored) state of Scotland would have to build up its own network of international relations. T'his is standard international practice. It is also the view of the Scottish Democratic Alliance (SDA), as can be read in The Succession of States in the Constitution-Independence section of its website. ………………………………………………………………………………… This presents a wonderful opportunity for Scotland to start with a clean sheet and rethink its international involvement from first principles. Membership of the United Nations (and hence most other international organisations) would be a formality, because Scotland fulfils all the qualifications by miles. Thereafter it is merely a question of which of the hundreds of regional and international organisations Scotland should choose to join on the basis of where its interests lie. ………………………………………………………………………………. There need be no dubiety about the major all-European organisations like the Council of Europe or the OSCE where membership is obviously desirable. The crux lies in a choice between the political EU and the purely economic EFTA sides of the European Economic Area (EEA). EU membership for Scotland is highly undesirable, for reasons that should be obvious in the light of recent developments, when constitutional and democratic norms that have been built up over bloodstained centuries are being thrown overboard with no regard for the long-term consequences. …………………………………………………………………………………. We must abandon the idea that there is anything essential about EU membership, where the influence exerted by a member state of five millions within a union of 500 millions would put Scotland into a position ten times worse than the one it is presently trying to escape. The same danger does not exist in the CoE and the other European institutions that are run on an intergovernmental basis. And EEA citizenship offers the same advantages as that of the EU, the same pension, health care, travel and working rights, as I know from my own experience. Maybe when Scotland regains the perspective on international affairs that it lost while cut off from the rest of the world for so long there will a chance of a more objective assessment of the overwhelmingly positive prospects for independence.
StevieC
Friday, February 10, 2012 at 05:30 PMI note the Professor makes no mention whatsoever of 'the clean slate doctrine', as enshrined by Articles 17 and 34 of the Vienna Convention. If international law is not supreme in these matters, why have a Professor of international law comment? _________________________________________________ Furthermore, his assertions about the status of an independent Scotland in the EU are entirely at odds with the interview given by senior EU legal advisers to the French press agency 2 weeks ago, an interview which has not been carried in any UK press and which would seem to settle at least a few of the burning questions posed here by this article. Their advice was clear, Scotland's entry to the EU as a successor state is a matter for ' a majority vote in the EU Parliament' .
samcoldstream
Friday, February 10, 2012 at 05:07 PMBrown and Darling did NOT use Bank of England Reserves to prop up RBS, and they rushed to the international money markets before they caught on about the extent of the UK's massive financial crisis and borrowed £45 billion at a good interest rate to keep RBS afloat. In the hypothetical event that Scotland should ever secede from the UK, not only will liabilities be negotiated but also the considerable assets of this unitary state. Like any split, whether it be marriages, businesses or nations, the assets will also have to be divided up on an equitable basis. Indeed, the failed banks would continue trading and Scotland, and the UK rump state, would continue to receive receipts for many years to come. Any negotiations would be lengthy, and like Australia, Canada, Ireland, and New Zealand a full settlement took many rears to complete. With the exception of Ireland, after negotiations with Australia, Canada, and New Zealand, now all self-governing, the British Government in London believed it had obtained a good deal in negotiations? However, it turned out differently as the UK economy declined and the new Commonwealth countries economies prospered. During the Second World War, the UK had to borrow billions, not only from the USA, but also from Australia, Canada, and New Zealand to fight the Axis Powers. Britain never paid back these billions of loans until the early 1960's at an interest rate that caused great resentment in this country. (Source: A History of the British Empire)
well informed
Friday, February 10, 2012 at 03:20 PMThere is no international legal precedence for the union of Scotland and England and the treaties of the UK!! There is no comparrison with the likes of India Pakistan or Czech Slovakia!! none of them are a case in point nor similar to the UK union! A closer comparrison can be made by the old Soviet states! How many of them had to reapply to join the UN? Der Sturmer continues printing the worst kind of party political sh*te its given.
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