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.