Part 4: International organisations including the EU

 

 

The Effect on Membership of International Organisations including E.U. Membership and Recognition in International Law:

Invoking independence from the United Kingdom framework will inevitably question the position of any newly independent Scotland in relation to International organisations, particularly organisations that the people of Scotland, under the umbrella of the United Kingdom framework, have come accustomed to.

It would be a very lengthy process to detail every single organisation that Scotland pertains membership of through its part in the United Kingdom. In order to find a common level this chapter will seek to discuss some of the main International organisations that offer not just simple membership but protection and support for the constitutional securities upon which any Scottish citizen may rely. The vast majority of this chapter will focus deliberately on the European Union and what legal arguments have arisen over projected membership for an Independent Scotland. As the European Union is the main political minefield in the independence debate regarding International organisations this paper shall seek to discuss the possibilities based on leading legal opinion and existing law.

International Organisations:

International Organisations is a very broad term, and due to this; each organisation has its own constitutional charter. Within the organisations looked at in this chapter there are no codified rules to account for the sui generis nature of Scottish Independence.

If we follow from the advice in the previous chapter, the general consensus in precedent is that the continuator state would therefore continue the membership of any organisation; however there are no obvious principles to decide these issues and a huge level of pragmatism is involved in reaching any solution.[1]

It has also been deemed that it is very difficult to make rules on succession where states divide because the modalities of succession differ greatly on a case by case basis.[2]

Positive and Negative Claims:

There is however a generally positive and negative claim on succession to international organisations for an independent Scotland. The problem is that such a claim has not been tested, and relies on the belief that such a matter would be governed by the Vienna Convention on Succession of States in respect of treaties.[3] We have already discussed on more than one occasion the fact that the United Kingdom may not need to follow such law on the basis that it is not a signatory. However, if we are to use this law as the basis of any theory we must also accept that a treaty constitutes an International organisation, something that is far from certain.[4]

If we can accept such, for guidance purposes, then Article 34 of the treaty states:

Any treaty in force continues in respect of each state formed in relation to succession;

Article 35 also states:

Treaties in force remain if a state continues after separation of part of its territory.

 

 

Effectively, Scotland would have every right to continue its membership of international organisations apparently unhinged. The same would apply for the rest of the United Kingdom. A seeming transition and a very convenient argument that would certainly have more substance were the United Kingdom to be signatories, and organisations treaties.

 

Further International evidence to suggest that such a path may be followed is the example of the break-up of the former U.S.S.R.

 

In this instance, the new states created upon the dissolution of the state, an agreement to fulfil international obligations that existed under the former U.S.S.R.[5] this was of course achieved through political agreement rather than the Vienna Convention but it does appear to show that continuity in International organisations is not as complex an issue as it may first appear.

 

Negative Claim:

 

Somewhat ironically the negative claim on an Independent Scotland continuing to enjoy membership of International organisations comes from the same Vienna Convention upon which its positive claim mainly originates.

 

Article 4 of the Vienna Convention states, in subsection B, that:

 

Effect of state succession on membership depends on the relevant rules of that organisation.

 

 

This would appear to bring the argument full circle; we have already established that the international organisations in question do not have instantly recognisable rules within their own constitutions or charters to account for such a unique situation. It would also leave the argument very much at the outcome of the discussion in the previous chapter. If the U.K. was the continuing state in international organisation, then it would presumably continue membership: with Scotland seemingly left to re-apply.

 

If Scotland and the United Kingdom were to both become new states, as argued, then both would have to apply for membership notwithstanding new rules made to account for the nature of the separation. There would be no continuing state. To create a clearer picture of how this would enact in practice we must look at organisations on a subjective basis.

 

 

United Nations and Security Council:

 

The United Nations is one of the leading international organisations that Scotland enjoys membership of through it being a party to the United Kingdom.

 

As with all large organisations the United Nations works from its charter, a set of rules government membership and operation. Within this charter there is nothing to give direct application to the Independent Scotland example, only a declaration that any states membership of the United Nations is affected by a decision of the General Assembly that takes recommendation from the United Nations Security Council.[6] Simply put, any membership will be distinctly of a political nature.

 

These rules would apply to Scotland almost certainly, but also to the rest of the United Kingdom if indeed that is deemed not to be a continuator state but a new state in itself. The consequences of Scottish Independence would arguably have a bigger effect on the rest of the United Kingdom who, at present, hold a much fabled seat on the Security Council as a permanent member. Countries such as Spain, Germany, Italy, Brazil and Japan all wish a seat on the Security Council and with self- interest playing a major factor there is no certainties that a continuation of the seat would be accepted even for the United Kingdom with a loss of territory and population. In order to maintain such a seat the United Kingdom may need the support of an independent Scotland and in turn, this would allow negotiating power in other areas to Scotland in matters in London.[7]

 

Effectively, such a situation could give Scotland an opportunity to seek a continuing de facto role in the Security Council through the United Kingdom rather than simply sacrifice its current participation. If Scotland supports the United Kingdom as continuing its current involvement then it could arguably negotiate a representative among the United Kingdom’s seats in the United Nations Security Council chamber.

 

 

 

Council of Europe and European Convention on Human Rights:

 

The Council of Europe is an International Organisation based in Strasbourg, France and comprises of 47 Countries. Its goal is to promote democracy, human rights and the rule of law. It has not to be confused with the European Council which is an Institution of the European Union.

 

The council of Europe defines itself as:

 

“The Council of Europe is the continent’s leading human rights organisation. It includes 47 member states, 28 of which are members of the European Union. All Council of Europe member states have signed up to the European Convention on Human Rights, a treaty designed to protect human rights, democracy and the rule of law.

The European Court of Human Rights oversees the implementation of the Convention in the member states. Individuals can bring complaints of human rights violations to the Strasbourg Court once all possibilities of appeal have been exhausted in the member state concerned. The European Union is preparing to sign the European Convention on Human Rights, creating a common European legal space for over 820 million citizens.”[8]

 

In order to ratify the E.C.H.R, each state must be a member of the Council of Europe.[9] However, you cannot become a member of the Council of Europe without first of all agreeing to ratify the E.C.H.R. [10] Therefore; it is easy to see that both instruments are instrinsantly linked.

 

What is not evident from the Council of Europe membership charter is what happens in relation to any potential Scottish independence movement. There is not a huge amount of precedent in this matter either; however the one precedent we do have once again demonstrates the significance on political agreement between the United Kingdom and Scotland prior to any of this transgression taking place.

The precedent that we can examine involves Serbia and Montenegro, two countries that formally made up a member state of the Council of Europe and were party to the E.C.H.R.

 

Upon separation, Serbia continued membership and Montenegro had to apply for membership. It was easily accepted under Statute of the Council of Europe Article 4, and became a new member.

 

The difficulty with this precedent is that there has been no definitive agreement between Scotland and the remainder of the United Kingdom as to what state would continue, if any, post any referendum result. Serbia was previously agreed as the continuing state with regard international obligations. If Scotland and the rest of the United Kingdom were to become new states, then arguably both would have to re-apply for membership. The difficulty would arise within the standing of the ECHR throughout this period. Helpfully, the Serbia model has provided some subsequent guidance on the matter with Strasbourg deciding that even if Scotland, or both Scotland and the United Kingdom had to re-apply, the convention rights would continue to apply in the interim period.

 

The court has held that (rights), “…belong to individuals living in the territory of the state party concerned, notwithstanding its subsequent dissolution or succession”[11]

 

The European Union:

 

The European Union, as previously stated, is the main political battleground in relation to membership for an independent Scotland.

 

The European Union is a very influential organisation in relation to the legal and constitutional framework of the United Kingdom at present. It also has a large influence on trade and foreign policy; creating relationships between countries in an inter-dependent fashion and creating seeming allies on the world stage. Although not a member through the United Kingdom opting out, the European Union is also a key player in international financial terms with its own currency union and the securities that it arguably provides.[12]

 

Membership of the European Union:

 

The European Union provides an excellent backdrop for legal debate in relation to Scottish Independence. On one such front, the European Union is laden with Laws that Govern membership and annulment of such in detail. Not unsurprisingly however, there is not absolute guidance on the matter of Scottish Independence; only academic argument. The Sui generis nature of Scottish Independence and the break-up of the United Kingdom framework once again create an argument with more than one potential outcome.

 

Membership of the European Union is governed by the European treaties and European law. The Treaties of the European Union create a, “…new legal order of international law…”. This differs from conventional International law in that its subjects and not only the member states as members but also their nationals or citizens.[13]

 

This paper will concentrate on three opinions regarding Scotland’s position in the European Union. All three opinions develop in very different ways, and although among only a small percentage of academic opinion they are the most detailed and in-depth.

 

Sir David Edward:

 

Sir David Edward is a former British judge of the European Court of First Instance from 1989 until 1992, and of the European Court of Justice from 1992 until 2004. He is also Professor Emeritus of the University of Edinburgh where he was Salvesen professor of European Institutions and Director of the Europa Institute from 1985 until 1989.

 

Much of Sir David’s argument is based around Articles 50, 2 and 4 of the Treaty of the European Union.[14]

 

Sir David argues that Article 50 expressly states that withdrawal from the European Union requires negotiation upon the terms of withdrawal. He also argues that this method of withdrawal can only take effect on the date agreed between the states, or two years after notification as stated in the Treaty. There can be no immediate withdrawal.[15]

 

The relevance of this to the Scotland example is that whereas Scotland would not be a simple case of withdrawal that is dealt with by Article 50, it would cover a situation that the Treaty has no express remedy for. However, as much as there is no remedy for Scotland’s situation there is a practical lesson to be learned from what Article 50 states on withdrawal.

 

“The solution to any problem for which the Treaties do not expressly provide must be sought first within the system of the Treaties, including their spirit and general scheme. Only if the Treaties can provide no answer would one resort to conventional public international law (including doctrines of state succession).”

The reason for the minimum two year period is based on the fact that the European Union has created multilateral relationships and liabilities between states.

 

As a consequence of being party to the European Union through its part in the United Kingdom, Scotland and its citizens have acquired rights and responsibilities with regard to free movement of not only goods but persons, services and capital. On this basis, so too have nationals of other member states in relation to Scotland under the United Kingdom Framework. Automatic removal from the European Union upon independence would have a catastrophic and adverse effect on investors, Erasmus students and migrant workers. Not to mention an impact on fishermen of other member states that operates in Scottish waters.

 

Sir David also argues the statement made by President of the E.U. Commission Manuel Barroso to be incorrect. Barroso stating that Scotland, as a new state, would be out with the European Union and would have to apply to join whereas the remainder of the United Kingdom would continue as if nothing had happened.[16]

 

Edwards states that even at a basic level of Principle this idea would be assumed to be contrary to the principles asserted in Articles 2 and 4 of the Treaty European Union. He also argues that if Barroso’s statement is correct then it would fail to recognise the democratic right of the Scottish Citizens not to mention the right of self-determination in International Law, but that such a case would create some form of legal limbo between Scotland and the European Union unless another treaty for the Accession of Scotland were negotiated.

 

If there is no automaticity in either direction regarding Scotland’s place in the European Union then Edwards makes some firm assumptions:

 

A vote in favour of independence for Scotland would result in the existence of two states, Scotland and the rest of the United Kingdom.

Separation would take place by consent and in a manner consistent with the constitutional traditions of the United kingdom

Both Scotland and the rest of the United Kingdom would wish to remain integral parts of the European Union.

 

If indeed this is the case then Edwards suggests that there would have to be some form of negotiation before separation of Scotland and the United Kingdom took effect.

These negotiations would determine the future relationship between Scotland and the European Union, not any existing Treaties per say but the nature and intention of current Treaties that cannot reasonably have intended to have prior negotiation for withdrawal from the European Union but not for separation.

“in accordance with their obligations of good faith, sincere cooperation and solidarity, the EU institutions and all the Member States (including the UK as existing), would be obliged to enter into negotiations, before separation took effect, to determine the future relationship within the EU of the separate parts of the former UK and the other Member States.”

He argues that this would create paradoxical legal consequences of automatic exclusion and the ability to unravel a complex skein of relationships created by European Union law without measures being taken to prevent it.

Overall Sir David Edwards’s argument is based on his knowledge of the European Union Treaties. He argues that there is no certainty in the law and therefore political discussion is the only way to determine how separation of Scotland and the rest of the United Kingdom would affect Scotland’s (and presumably the rest of the United Kingdoms) membership with the European Union. Regardless, his stance that Scotland is so intertwined in European Union interdependency it would be virtually impossible to imagine a situation where Scotland were forced to leave the European Union almost overnight and ending decades of financial arrangements and citizens’ rights with little warning.

 

Professor David Scheffer:

David Scheffer holds an endowed professorship and serves as the Director of the Centre for International Human Rights.  He teaches International Human Rights Law and International Criminal Law.  Scheffer is the U.N. Secretary-General’s Special Expert on United Nations Assistance to the Khmer Rouge Trials.  He was selected by Foreign Policy Magazine as one of the “Top Global Thinkers of 2011.”[17]

Scheffer would appear to back up the argument of Sir David Edwards by stating that the European union has requirements for state accessions under Article 49 of the Treaty of the European Union; however as much as this issues conditions of availability it would have no relevance to any Scottish claim for succession, meaning Scotland choose to maintain membership as a successor state. Scheffer maintains the argument that both Scotland and the United Kingdom would become successor states and therefore either both were removed from the European Union and would have to re-apply or both were accepted as part of the European Union with no separate rules for either entity. [18]

Professor Scheffer also comments upon the statement of President Barroso that;

“If part of the territory of the 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. In other words, a new independent state would, by the fact of its independence, become a third country with respect to the EU and the treaties would no longer apply on its territory”[19]

According to Professor Scheffer, similarly to Sir David Edward, there is nothing written in EU law treaties or jurisprudence to confirm this view.[20]

If there is no clear guidance in European Union law then it is improbable and absurd to suggest that Scotland could be removed from the European Union by default. It also raises the argument once again that if Scotland did not achieve EU membership then their citizens’ rights would be extinguished, or, could it be that there is a residual body of rights that individuals would be entitled to enjoy. If Scotland were to be excluded from the European Union then arguably so would the Scottish people and anyone resident on Scottish soil.[21]

The idea of citizens’ rights under European Law becomes a further matter worth discussing in relation to the European Union. As we have already discussed the rights of the European Union extend to not only states as members but their nationals. If, for whatever reason, Scheffer’s assumption that both Scotland and the United Kingdom would become two new states is wrong, then where would this leave citizens in a new Scotland?

At present, Scottish people are regarded as United Kingdom, or British nationals. Traditionally, nationals of a state get the right of option, rather than automatically becoming ‘Scottish’ upon independence, they would have the right to remain ‘British’.[22] This is an idea backed up in international law, and would once again widen the scope of the debate.[23] Should Scotland indeed be removed from the European Union and the rest of the United Kingdom stay, there would seemingly be nothing to prevent the citizens of Scotland electing to remain British and therefore maintaining their rights and freedoms offered under European Union law, without their nation being party to such.

It would be difficult to argue, however, whether any reverse argument could be made in this regard. It is inherently unclear whether EU citizens currently resident in Scotland could find a cause of action on the ground that the rights acquired under the EU Treaties would be withdrawn. The acquired rights doctrine would appear to suggest that a change of sovereignty cannot affect the interests of individuals. However, it would be difficult to determine if these EU citizens have any claim against the redefinition of the territory of the EU and therefore the scope of application of EU law[24]

Crawford & Boyle Argument:

Professors James Boyle and Alan Crawford are both leading experts on International law.

The opinion of these respected Professors is in stark contrast to those of Sir David Edward and David Scheffer. Quite simply, Professors Crawford and Boyle state that in their opinion, based on their assumption that the United Kingdom continues and Scotland becomes a new state, Scotland would have to apply as a member of the European Union and the rest of the United Kingdom would continue its membership.

The main crux of the evidence for such a claim is based on the fact that when Algeria was a part of metropolitan France, it did not affect the French membership of the then ECC when Algeria became independent.

This argument would appear prima-facie to have some substance and precedent, something that is missing from previous arguments. However, it is a stance that is criticised on the basis that the ECC never actually recognised Algeria as part of French territory in the first place, but as a dependent territory. Something that Scotland is not and therefore weakens the precedent considerably. [25]

Professors Crawford and Boyle argue a similar position to that of President Barroso that Scotland would be a new state and therefore have to apply for membership through the Treaty European Union Article 49. If the United Kingdom continued membership within Scotland then it could simply remove Scotland from the scope of the EU Zone.[26]

Again, this argument can be quickly neutralised on the argument that the Treaty of Lisbon introduces Article 50 and how a state can withdraw from the EU. None of the provisions cover independence or automatic withdrawal as is touted the Scottish independence issue. It would appear to go against the grain of the treaties if independence allowed for automatic withdrawal from the EU. At a time when the UK Government is interested in withdrawing from the EU it could be argued that it be beneficial for political reasons to form two new states that need apply for membership.[27]

Within their paper Professors Crawford and Boyle themselves doubt their own assertions, stating:

“All this is not to suggest that it is inconceivable for Scotland automatically to be an EU member. The relevant EU organs or Member States might be willing to adjust the usual requirements for membership in the circumstances of Scotland’s case. But that would be a decision for them, probably made on the basis of negotiations; it is not required as a matter of international law, nor, at least on its face, by the EU legal order.”

A clear indication that no definitive answer can be reached, but that argument against Scotland’s continued membership is somewhat thin.

Conclusion:

The ability of Scotland to remain part of the International organisations from which is benefits from membership under the United Kingdom umbrella has been a stark political minefield throughout the independence debate. Upon taking a closer look at the legal implications regarding such it can be seen that there is little to prevent Scotland continuing in a manner vastly different from which it functions today.

The main debate has surrounded the membership of the European Union, seen as a key figure in any potential independent Scotland. The wealth of professional and academic opinion available would suggest that in fact Scotland could be in a very strong position regarding EU membership within very little to suggest automatic removal is at all a possibility. Indeed, the majority of opinion would suggest that it would fall upon negotiation with the European Union to adapt and change its treaties to accommodate Scotland rather than a new application process altogether.

Finally, the conclusion that would have to be drawn is that Scotland’s international recognition should not provide many hazards for a newly independent nation. The next discussion therefore, has to concentrate on the domestic implications including monetary and other economic issues that would shape the constitutional framework of Scotland and the United Kingdom.

 

[1] C.F. Amerasinghe, ‘Principles of the Institutional Law of international Organisations’, (Cambridge, CUP, 2nd Edn, 2005)P 111-112

[2] Jan Klabbers, ‘An Introduction to International institutional law’, ( Cambridge, CUP, 2002) P.115

[3] Vienna Convention on Succession of States in Respect of Treaties 1946 UNTS 3

[4] Anthony Aust, ‘Modern Treaty Law and practice’,( Cambridge, CUP, 2007) P.400

[5] Alma Ata Protocol (Russia, Ukraine, Belarus, Moldova, Azarbaijan, Armenia, Kazakhstan, Tajikistan, Kyrgyzstan, Turkmenistan, Uzbekistan), 8th January 1992, 31 ILM 148,149

[6] UN Charter Article 4(2)

[7] David Scheffer,’ International political and legal implications of Scottish Independence’,(Working Papers Series 2013:01, University of Glasgow) P.35

[8] <www.coe.int > Accessed 01-04-2014

[9] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, Article 58(1)

[10] Parliamentary assembly of the Council of Europe,( Resolution 1031 ,1994)

[11] Bijelic v Montenegro and Serbia App 11890/05, 28 April, ECtHR

[12] John Fairhurst, ‘Law of the European Union’, (Essex, Pearson, 2011) P.50

[13] Van Gend en Loos v Netherlandse Administratie der Belastingen [1963] ECR 1

[14] Appendix 2

[15] David Edward, Scotland and the European Union, (Scottish Constitutional Futures Forum Blog, 17th December, 2012)

< http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/852/David-Edward-Scotland-and-the-European-Union.aspx> Accessed 01/04/2014

[16]Simon Johnson, ‘José Manuel Barroso: Independent Scotland not EU member’ The Telegraph,(10th December 2012)

<http://www.telegraph.co.uk/news/uknews/scotland/9734785/Jose-Manuel-Barroso-Independent-Scotland-not-EU-member.html> Accessed 01/04/2014

 

[17] <http://www.gla.ac.uk/research/az/globalsecurity/publicevents/securityandanindependentscotlandlectureseries/ > Accessed 01/04/2014

[18] David Scheffer,’ International political and legal implications of Scottish Independence’,(Working Papers Series 2013:01, University of Glasgow) P. 30

[19]Brian Taylor, EC’s Barroso says new states need ‘apply to join EU (10th December 2012)
<http://www.bbc.co.uk/news/uk-scotland-scotland-politics-20664907 > Accessed 01/04/2014

 

[20] David Scheffer,’ International political and legal implications of Scottish Independence’,(Working Papers Series 2013:01, University of Glasgow) P.31

[21] Jo Shaw, EU Citizenship and the edges of Europe, (European research council, CITSEE Working paper series, 2012/19)

[22]James Crawford ,’Brownlie’s principles’ (Oxford, OUP,8th Edn, 2012) P.433-9

[23] Nationality of Natural persons in relation to the succession of states, GA Res 55/153 (2000)

[24] Janko Rottman v Freistaat Bayern Case C-135/08

[25] Lane R, “ Scotland in Europe” (Edinburgh essays in public law ,1991) 143

[26] Hansen v Hauptzollamt Flensburg [1978] ECH 1787

[27] O’neil A, “A quarrel in a faraway country? Scotland, Independence and the E.U.” (14 November ,2011)
< http://eutopialaw.com/2011/11/14/685/> Accessed 01/04/2014

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