Matt Qvortrup: Political solution to EU conundrum

Outgoing President of the European Commission Jose Manuel Barroso. Picture: Getty

Will Scotland have to apply for Nato and EU membership if there is a Yes vote? The Yes campaign has argued that Scotland would more or less automatically become a member of both bodies.

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Better Together, on the other hand, has argued the opposite; Scotland would have to reapply to become a member of both international organisations – and it says it is unlikely to be granted. It cites the outgoing president of the European Commission Jose Manuel Barroso in support of this view. Mr Barosso believes that it would be “extremely difficult to get the approval” for Scottish EU membership.

But Yes Scotland may have trumped this claim. In a surprising intervention Sir David Edward – who served on the European Court of Justice from 1992 to 2004 – expressed the view that Scotland would not have any difficulties joining the EU. Further, argues Yes Scotland, Mr Barosso’s successor Jean-Claude Juncker – as reported in The Scotsman – has declared that he is “sympathetic” towards a future Scottish membership of the EU.

Much of this debate depends on interpretation of law and of the existing treaties. The most crucial issue is if Scotland is the “successor state”. The successor state is the rump that is left behind once a country has seceded. For example, when Norway seceded from Sweden in 1905, Sweden was the successor state, and bound by treaties and obligations signed and agreed during the period of union.

The successor state is responsible for payment of debt – and automatically retains the membership of international organisations. The rest of the UK would retain the seat on the UN Security Council.

The new state will have to apply for membership of international organisations. Thus South Sudan (the newest state in the world) had to apply for membership of the African Union and the United Nations when it became independent in 2012. The applications were dealt with swiftly and the country joined the respective organisations within days of becoming independent.

But many issues are still outstanding. International law is based on precedent; in the absence of an international legislature the law of nations is largely based on what has happened before. The problem as regards EU and Nato membership is that we are in a new situation. No country has previously left an EU or Nato membership country to re-apply.

The question is ultimately a political one and not a matter that can be determined by studying the law books. This is also the view of Sir David. The former judge at the European Court of Justice believes that: “All that is certain is that EU law would require all parties to negotiate in good faith and in a spirit of co-operation … the result of such negotiations are hardly, if at all, a matter of law.”

But politics cannot be underestimated in the EU or Nato.

Membership of the defence alliance may prove the least difficult. At a time of increasing tensions between Russia and the West, Nato would have an interest in retaining Scotland as a member. The neutral Scotland would not be in the geopolitical interest of Nato, let alone in the interest of the United States. Certain issues, especially those pertaining to nuclear weapons would be a stumbling block. Still other countries with clear anti-nuclear policies, such as – above all – Denmark, have been able to remain members of Nato without compromising on their opposition to nuclear weapons.

EU membership is potentially more difficult. Mr Juncker may be “sympathetic” towards Scottish membership. And in law, Scotland is far ahead of other applicant countries such as Albania, Serbia and Turkey who all have questionable human rights records. The problem for Scotland is that a single country can block membership.

It has been speculated that Mr Barosso – a Portuguese politician with close ties to Spain – expressed the view of the Spanish government. Spain fears that Catalonia will seek to become independent. A referendum is planned in the region in November but it is still uncertain if it will go ahead. Spain is anxious to prevent this referendum and would not want Scotland to create a precedent. While EU law may require that negotiations are conducted in a “spirit of co-operation”, there are several examples of countries blocking decisions without providing other reasons than national pride. For example, Greece vetoed the recognition of Macedonia until the country had changed its name to The Former Yugoslav Republic of Macedonia, and Cyprus has blocked membership of Turkey. These decisions were not based on “co-operation” but on national self interest. There is – in law – nothing that can prevent Spain (or one of her allies) from blocking Scottish membership of the EU.

• Matt Qvortrup is a constitutional lawyer and author of Referendums and Ethnic Conflict