February 06, 2013
A journey into the unknown
By: Jon Vrushi
The international legal implications of Scottish independence have been the focal point of much controversy and cause for confusion. International public law, by virtue of being incomplete, leaves room for different interpretation. Although the parameters for the principles of self-determination are already consolidated, there is little doubt that Scotland presents a suis generis case.
Recently, one interpretation of public law came from Ambassador David Scheffer, a professor of International Law at the Northwestern University in Chicago and the first American ambassador-at-large for war crimes issues. On 22 January Amb Scheffer gave a lecture on the international legal implication of Scottish independence at the University of Glasgow, in which he reiterated his interpretations of international public law and its implications for the the independence debate.
The central argument that Amb Scheffer presents is the theory of 'co-equal successor states'. The premise is that if Scotland were to become independent, the rest of the UK and the newly formed Scottish state would have the same status in terms of treaty obligations and membership of international organisations.
“… 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… both successor states should lay equal claim to the continuation of treaty relations established in the past by the United Kingdom.”
Amb Scheffer also emphasised the importance of what he calls 'smart diplomacy'. According to him, Scottish emissaries should start preparing the ground in case the outcome of the referendum will be an affirmative vote. “The time has arrived to begin planning a strategy for ultimate recognition of an independent Scotland by foreign governments … prior consultation with foreign governments about Scottish commitments to core principles of good governance should facilitate rapid recognition of an independent Scotland if and when it is formally achieved, perhaps in 2016.”
As an international law scholar, Amb Scheffer sees the ‘struggle’ for Scottish independence as ‘Exhibit A’. The Scottish issue is a laboratory for international law precedent and the legal formulas applied to it will evolve accordingly. He formulates a hypothetical principle of international law that could potentially emerge from this exercise as follows: ”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.”
If Amb Scheffer is right, an independent Scotland could choose what treaties to continue and what treaties to interrupt, as well as its membership of international organisations. Scotland would therefore remain an EU member state and choose whether it wants to continue NATO membership or not.
However this is in direct contrast to the European Commission’s position. On 10 December 2012, President Barroso declared that “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.”
Commenting on that declaration, Amb Scheffer said that “there is nothing previously written anywhere in EU treaties or jurisprudence that I am aware of that actually stipulates this [Barroso’s] point of view.”
The Journal contacted Mr Barroso’s press team asking for a comment on ambassador Scheffer’s interpretation. Mark Stephen Gray, Mr Barroso’s spokesperson, said to The Journal: “The European Commission does not intend to comment on every speech or legal interpretation that is presented on the issue of a territory of a member state leaving the European union. The European Commission has set out its position on many occasions and this position is in full conformity with well-established principles set out in international public law. We have nothing further to add at this point in time.”
When asked to summarise the position of the European Commission for The Journal, Mr Gray added: “We do not comment on specific scenarios like that of Scotland. Since 2004 we have said that a new independent state would become a third country with respect to the EU and the treaties would no longer apply on its territory.”
At this point in time it is important to emphasise that although Amb Scheffer is a world-renowned legal expert and according to Foreign Policy magazine a top global thinker, his interpretation is only that of an academic. Amb Scheffer started his speech with the disclaimer that his address was being delivered strictly in his capacity as a law professor.
Specifically in relation to an independent Scotland’s EU membership, the verdict and interpretation that ultimately matters is that of the European Union institutions.
Even if the Commission hypothetically proposes the recognition of Scotland’s EU membership, there would be two more stages before Scotland can receive a member state status. The next stage is the ratification of the proposal by the European Parliament followed by a unanimous vote in the European Council. If a single member state out of 27 constituents of the European Union votes against Scotland’s recognition, an independent Scotland would remain outside of the Union and the Single Market.
While scaremongering is an ugly phenomenon, best kept out of political discourse in times of potentially decisive change, false hope can be equally counter-productive. The people of Scotland should not be intimidated by rumours of international isolation in case independence materializes.It is equally important however that decisions are a result of weighing the pros and cons of clear-cut official information, rather than mass excitement and demagoguery.