Part 3: The Seemingly Absurd On Citizenship!

It’s Friday, it’s almost the weekend and I have decided that there is much else to do than type about Scottish independence until next week. However, before I embark on some of the weekends festivities I decided to post this small part up before it slips my mind. I hadn’t originally considered it as an issue, and I hadn’t really thought about putting it in; but upon reflection (and after sitting in traffic on Balshagray Avenue for an age) I decided otherwise. It is a short but important issue to reflect.

I will call this citizenship, even although I may be using the wrong term. I suppose if I were to be totally correct on terminology we are not citizens of Great Britain, but rather subjects. However, we can probably leave that part at the door.

Scottish independence would inevitably create the persona of being ‘Scottish’ as opposed to ‘British’. That, in simple terms, does not seem particularly difficult to understand. It creates little difficulty for anyone born on, or after, the date that Independence would be declared. The problem is, there are approximately 5.2million people living in Scotland at the moment, not to mention those residing elsewhere in the United Kingdom and beyond whom this would affect immediately.

I suppose the best starting place for this is actually the SNP White Paper, to see what they say on the matter:

Citizenship

372. What will independence mean for citizenship in Scotland?

Our proposal is that on day one of independence, all British citizens who live in Scotland and all British citizens born in Scotland but residing elsewhere would automatically be considered Scottish citizens. Others may be able to apply for citizenship following independence through routes such as citizenship by descent or by naturalisation.

Under these proposals Scotland would not create a barrier to individuals holding Scottish citizenship alongside British or any other citizenship.

373. What would being a Scottish citizen mean and how would I prove that I am a Scottish citizen? Would there be a registration process?

As outlined above, all British citizens who are habitually resident in Scotland at the date of independence and all British citizens born in Scotland but resident elsewhere would automatically be considered a Scottish citizen. There would be no registration required and there are no plans to have a Scottish ID card. We intend that the rights and responsibilities which accompany Scottish citizenship will be broadly in line with those currently aligned with British citizenship. However, there is no written record of what rights and responsibilities are associated with British citizenship. We would support the inclusion of the rights and responsibilities of Scottish citizens in the permanent written constitution of an independent Scotland. Those rights and responsibilities will reflect the European Convention of Human Rights.

375. Must I be a Scottish citizen? Can I opt out of Scottish citizenship and retain my British citizenship?

Our proposals will allow people to opt out of Scottish citizenship. However, under international law, when setting nationality rules a country has a duty to avoid making people stateless. Therefore, those people who would automatically be considered a Scottish citizen will only be able to opt out if they already hold citizenship of another nation. British nationality rules will be a matter for the rest of the UK.

Should you qualify for British citizenship under the rest of the UK’s rules post-independence then you will be able to opt out of Scottish citizenship or hold dual citizenship. Information on how to opt out will be made available before independence. We aim to keep the process simple yet robust.

376. Can I have both Scottish and British citizenship?

Our proposals for citizenship in an independent Scotland are based upon an inclusive model and will include dual citizenship, recognising our shared history with the UK. We will not place obstacles in the way of individuals holding Scottish citizenship alongside British or any other citizenship.

The UK allows dual or multiple citizenship for British citizens. If a British citizen acquires citizenship and a passport of another country, this does not affect their British citizenship, right to hold a British passport or right to live in the UK. It will be for the rest of the UK to decide whether it allows dual UK/Scottish citizenship, but if Westminster decided that Scottish citizens could not also be UK citizens it would be inconsistent with its approach to every other country.

So, as we can see from this SNP admission, at present Scottish people are regarded as UK or British nationals. Traditionally, nationals of a state get the right of option; rather than automatically becoming SCOTTISH they have the choice to remain BRITISH. (Brownlie’s principles (8th Edn, 2012) 433-6.

As you can see from the fact I have also referenced Browlie’s principles here, this idea does seem to be pretty cemented among commentators. So this led me to think; if this is such an accepted arrangement, with no obvious negative argument: then why is there any fuss over the protection offered to E.U. citizens that Independence would apparently effect? Surely, no matter what happens to Scotland (New State etc. from part 2) the citizen’s rights would be protected anyway?

I won’t comment on the Human Rights Arguments here because I will save that as a whole new topic altogether. What I will touch on though, is where this law comes from! The SNP appear to be suggesting that there is some variance of International Law at work behind their convictions.

The Nationality of Natural persons in Relation to the Succession of States, GA Res 55/153 (2000) – Article 26; grants the right of option! This means that some citizens may choose to remain British Citizens and therefore remain EU citizens if it is indeed deemed that the UK is a continuation and Scotland a new state.

Article 26

Granting of the right of option by the predecessor and the successor States

 Predecessor and successor States shall grant a right of option to all persons concerned covered by the provisions of article 24 and paragraph 2 of article 25 who are qualified to have the nationality of both the predecessor and successor States or of two or more successor States.

According to Article 1 of the General Assembly Resolution 55/153, “Every individual who, on the date of the succession of States, had the nationality of the predecessor State, no matter how acquired, has the right to the nationality of at least one of the States concerned, in accordance with the present articles”.

However, this is not often followed by the states, as can be seen with the various refugee populations around the world. An example of this scenario can be seen in the Israel-Palestine conflict. When Israel was founded in 1947, the resident Palestinians of the area wanted to remain citizens of the predecessor state, Palestine. After the Arab-Israeli war of 1948, the inhabitants of the area lost their homes and their means of livelihood. They became refugees in the neighbouring countries Jordan, Lebanon and Syria, and as of 2005, this population account for 4.3 million persons.

Article 4

Prevention of statelessness

 States concerned shall take all appropriate measures to prevent persons who, on the date of the succession of States, had the nationality of the Predecessor State from becoming stateless as a result of such succession.

 

Article 5

Presumption of nationality

Subject to the provisions of the present articles, persons concerned having their habitual residence in the territory affected by the succession of States are presumed to acquire the nationality of the successor State on the date of such succession.

 

So far, so good? It would certainly need to be suggested that the SNP White Paper has it firmly in their grasp.

There is….only one problem with all of this; in my view. The legal theory behind their ideals set out in the White Paper appear to be concrete enough, however; is their legal theory also undermining their viewpoint that Scotland would not have this ‘clean slate’ idea that we discussed in part 2?

Let’s look at the terminology used in the legal words, ‘Succession’.

Succession of States:

Succession occurs when one state ceases existing or loses control over part of its territory, and another state comes into existence or assumes control over the territory lost by the first state.

Replacement of one state by another in the responsibility for International relations.

Maybe not, perhaps I am trying to pick some sort of fault, or play Devil’s Advocate on an issue where there is no room for one. The only reason I raise this issue is relating back to this ‘Vienna Convention’ that I mentioned in Part 2, although not a signatory it must still be deemed that such a piece of International Law would have persuasive effect on the Scottish Independence matter.

Let’s look at it again:

The Vienna Convention on Succession of States in respect of Treaties is an international treaty from 1978, designed to set rules on succession of states. It was adopted partly in response to the “profound transformation of the international community brought about by the decolonization process”.

Among its provisions it establishes that newly independent post-colonial states are subject to the “clean slate” rule. In this case, the new state does not inherit the treaty obligations of the colonial power (article 16).

Article 34(1) however, states that all other new states remain bound by the treaty obligations of the state from which they separated.  It would have to be argued that Scotland would fit into this category.

What confuses matters further is that, article 17 states that newly independent states may join multilateral treaties to which their former colonizers were a party without the consent of the other parties in most circumstances, whereas article 9 states that all other new states may only join multilateral treaties to which their predecessor states were a part with the consent of the other parties.

Apologies if I am unnecessarily muddying the waters on this issue by bringing in some complex International Law, especially law that seems very self-contradictory. The point that I am trying to emphasise here is that the outcome to Part 2 of this discussion is actually paramount to the discussion on citizenship. What seems like a straight forward answer from the SNP white paper could effectively be challenged. Furthermore, the questions raised in Part 1 are also deeply relevant. No one is considering Scotland as a colony at present; indeed it is part of metropolitan Great Britain. However, a simple Dictionary definition of ‘Colony’ states: “a country or area under the political control of another country and occupied by settlers from that country”. It appears that the question raised in Part 1 of this discussion has come back to haunt our progression on an answer. Scotland certainly did have sovereignty prior to 1707, but did that transfer to England or are they joint partners? I guess, until we can answer that; we can’t define for sure.

De facto statelessness:

De facto statelessness is another potential problem that we should consider, and this occurs due to the lack of laws that may be in place. This could be a problem for someone holding a British passport, but not having the “Rights to Abode”. These people could still be considered stateless. This has occurred in many cases when passport holders of the British colonies lost nationalization. After some of the colonies gained their independence, the British left a few still carrying a British passport, yet they did not have the Rights to Abode, thus leaving them stateless.

This obviously shouldn’t be a big problem, after all the SNP White Paper says Scotland would be in the E.U. and therefore have the right to abode in the U.K.

The British Government however, as we seen in part 2, are not so convinced that Scotland would retain such rights because they would be a new state in their eyes. In that case, England or the Rest of the U.K. to be precise would be a foreign nation; with no automatic settlement.

Similar situations have occurred in Hong Kong. After the turnover of the People’s Republic of China, people who were not of Chinese descent were not immediately given Chinese citizenship.

Being de facto stateless is pretty rare, and again I am making an argument where perhaps there is not one to be had. Most countries have made amendments to their law to include these de facto stateless persons. The Immigration and Asylum Act 2002 has would likely be considered as covering this argument and making it redundant; but I thought it worthwhile of mention.

Overall:

I would suggest that the SNP White Paper has pretty much hit the nail on the head in this area. Everyone would have the option of choosing to become Scottish, or remain British. Politically, this is an argument that the SNP probably don’t want to advertise, as you are effectively telling the ‘No’ campaigners that they wouldn’t have to become Scottish. If I was to be slightly more twisted on the matter I could suggest that all those proud Union and British people would have their fears laid to rest; as they could maintain their British Status in an Independent Scotland.

I would also have to allude that such a matter would extend to the armed forces. At present members of the armed forces are part of the British army, and this would surely be an option open to them upon Independence. No soldier could be forced out of the army on the basis they were born in Scotland some years before Independence.

I know that in the latter part of this muse, I unnecessarily muddied the waters by throwing up rather weak legal argument based on Scotland’s standing. I thought about removing it, but then decided not to on the basis that removing it would suggest that all is perfect and rosy in the garden of the SNP White Paper. That is not the case, nor is that my opinion.

The question of citizenship is one that I feel the political parties have chosen to hide from. I can understand the various reasons as to why this may have happened. Personally, I feel like it is a major question that should be brought out into the open; and for the reasons below.

1)    If Scotland is declared an Independent state, and does not have a path of direct entry into the E.U. then that would indicate that citizens who become ‘Scottish’ would lose the protections offered to them under E.U. Law.

2)    If a person that would fulfil the criteria of ‘Scottish citizen’ choses to remain a ‘British citizen’ then arguably, they would maintain the protection offered to them by E.U. law. Therefore, you could have two neighbours, both born in Scotland, whom have different rights under E.U. law. One, presumably with no rights at all.

3)     If this is the case, then it would create a different faction of citizen within the border of Scotland. There could be a completely different set of laws and protections for various people but not for others. That is absurd. The free movement of people, Erasmus and the like would therefore only apply to those choosing to maintain their British ties. This would create a real disadvantage to those people, and open the doors for everyone to choose a duel – citizenship.  As simple as that may sound, when does it end? Does this only apply to those alive before the date of independence and dying out with the last survivor of such?

4)    The UK does not apply immigration controls to any arrivals from the Republic Of Ireland. However, the Republic Of Ireland applies immigration controls to UK nationals arriving in the country by sea or air. Would this be the same in an Independent Scotland? We have a real issue here in the fact that all we have considered thus far are Scottish people determining the ability to have duel or British citizenship; but what about British citizens that want to become ‘Scottish’?

Again, these arguments seem to be completely absurd, but that is the very real possibility of International Law.

All of this talk leads me to a very neat ending, and introduction to the next topic: E.U. Membership!

As you can probably see, E.U. Membership could have a massive influence on citizenship but as I will touch on in the next Part of this tale; perhaps citizenship could have a massive influence on E.U. membership!

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