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Independence: In or Out of Europe? An Independent Scotland and the European Union

Abstract

There is a question mark over the future of the nation-state in Europe. National monetary policy has been transferred to the European level in most European Union member States. Over the next ten years the EU will have a stronger role in defence and foreign policy, immigration and law enforcement. The very policies that supposedly define the concept of national sovereignty are no longer the exclusive domain of national governments.

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1. Art.205(2) EC.

2. See Election Manifesto, SNP, Apr. 1997.

3. See The Legal Basis of Independence in Europe, SNP, Feb. 1997.

4. With the exception, of course, of those treaties specifically relating to activities on Scottish territory.

5. The Union with England Act 1707 of the Scottish Parliament and the Union with Scotland Act 1706 of the English Parliament. The English Act incorporated the terms of the Scottish Act with the addition of provisions safeguarding the status of the Church of England. The difference in dates arises from the fact that at the time Scotland had adopted the Gregorian calendar but England had not.

6. See the Union with Scotland Act 1706 (6 Anne c.11).

7. “the States—the kingdoms of Scotland and England—ceased to exist on May 1, 1707, when they merged their identity in the new State of Great Britain.… Two international persons disappeared in 1707—the obligants under the treaty—and a new international person took their place. This new State, though I believe bound in constitutional law by the conditions of its own creation, could not in public international law be bound by a treaty to which it was no party.” (Smith T. B., “The Union of 1707 as Fundamental Law” [1957] P.L. 99 at 106).

8. See Dicey A. V., Introduction to the Study of the Law of the Constitution, London, 10th edn. 1959, pp. 3940.

9. See Vauxhall Estates Ltd v. Liverpool Corpn [1932] 1 K.B. 733 and Ellen St Estates Ltd v. Minister for Health [1934] 1 K.B. 590.

10. See Bradley A. W. & Ewing K. D., Constitutional and Administrative Law, London12th edn, 1988, chap.4.; de Smith S. A. & Brazier R., Constitutional and Administrative Law, Harmondsworth, 7th edn, 1994, chap.4 (which concludes, at pp.7879, that “the immunity of the surviving fundamental principles of the Union from legislative encroachment by the United Kingdom Parliament without Scottish consent is probably to be regarded as a matter of convention rather than strict law”); and Munro C R., Studies in Constitutional Law, London, 1987, chap.4. For contrary views see Calvert H., Constitutional Law in Northern Ireland: A Study in Regional Government, Belfast, 1968, pp.1723; Mitchell J. D. B., Constitutional Law, 2nd edn, 1968, pp.6974; T. B. Smith, ibid. and MacCormick D. N., review of S. A. de Smith, Constitutional and Administrative Law 1st edn, [1973] P.L 174.

11. In the Acts of Union, the (Scottish) Protestant Religion and Presbyterian Church Act 1707 was to be “held and observed in all times coming as a fundamental and essential condition of any treaty or union … without any alteration thereof or derogation thereto in any sort for ever”.

12. See the text of Art.1 of the Articles of Union above.

13. See C. R. Munro, ibid., for a full discussion of these issues.

14. There are dicta in two Scottish cases, MacCormick v. Lord Advocate [1963] S.C 396 and Gibson v. Lord Advocate 1975 S.L.T. 134, that legislation contrary to the fundamental terms of the Articles of Union would be unlawful (if unjusticiable), but in recent years the Scottish courts have been anxious to avoid the issue of whether they have a power to review legislation for such compatibility. See Pringle, Petitioner 1991 S.L.T. 330 and Murray v. Rogers 1992 S.L.T. 221.

15. Munro, ibid, at p.72.

16. See Article s.28(7) of the Scotland Act 1998.

17. In this sense Tony Blair (The Scotsman, 4 Apr. 1997) was entirely correct when he compared the Scottish Parliament to a parish council.

18. See the Union with Ireland Act 1800 (59 & 60 Geo. 3 c.67).

19. Art.1, ibid.

20. Ex parte Canon Selwyn (1872) 36 J.P. 54.

21. ibid, at 55.

22. See the Articles of Agreement for a Treaty between Great Britain and Ireland, 6 Dec. 1921, incorporated as the schedule to the Irish Free State Act 1922.

23. In particular, the Act has been amended so that it no longer applies to the territories now comprising the Republic of Ireland. See s.6, the Irish Free State (Consequential Provisions) Act 1922 and Order in Council S.R. & O.1923 No.405.

24. Strictly speaking, the Free State became a self-governing Dominion within the British Empire and was treated as such by the English courts. There is no doubt, however, that it was treated by the international community as possessing legal personality. The League of Nations registered the 1921 Treaty under Art.18 of the Covenant despite British objections that it was not an international agreement. See Robert MacGregor Dawson (Ed), The Development of Dominion Status 1900–1936, London, 1939, at p.252 and O'Connell D. P., State Succession in Municipal Law and International Law, Cambridge, 1967, Vol.11, p.123.

25. Indeed, the paradox is that if certain of the provisions of the Articles of Union are inviolable, then Scottish independence would be impossible as being contrary to Art.1.

26. (1978) 17 I.L.M. 1488

27. Report of the International Law Commission on the work of its twenty-sixth session, 6 May–26 Jul. 1974, UN Doc. A/9610/Rev.1, in (1974) Y.B.I.L.C, vol.II, pt.1, pp.174–269.

28. Which is, save for a consequential amendment, identical to Art.4 of the Convention.

29. (1974) Y.B.I.L.C., vol.11, pt.1, pp.177–178.

30. It came into force on 6 Nov. 1996, but as of 19 Aug. 1999 only 17 States (Bosnia, Croatia, the Czech Republic, Dominica, Egypt, Estonia, Ethiopia, Iraq, Morocco, Saint Vincent and the Grenadines, Seychelles, Slovakia, Slovenia, Macedonia, Tunisia, Ukraine and Yugoslavia) are parties to it. See the UN Treaty Database at http://wwww.un.org/Depts/Treaty/.

31. This point is expressly made by Garzon Clariana, Principal Legal Adviser, Legal Service of the European Commission, in his survey on “La succession dans le Communautés Européennes”, in Burdeau Geneviève and Stern Brigitte (Eds), Dissolution, Continuation a Succession en Europe de l'Est, Paris, 1994.

32. For the text of the opinion, see D. P. O'Connell, ibid., vol.11, pp.184–185.

33. See (1947–48) U.N.Y.B., pp.39–40.

34. Scharf Michael P., “Musical Chairs: The Dissolution of States and Membership in the United Nations” (1995) Cornell I.L.J. 29 at 36.

35. See Jayakumar S., “Singapore and State Succession: International Relations and Internal Law” (1970) 19 I.C.L.Q. 398.

36. Bangladesh's first application for UN membership was vetoed by China. It was finally admitted in 1974. See Crawford James, The Creation of States in International Law, Oxford, 1979, at pp.135136

37. The Baltic States (Estonia, Latvia and Lithuania) did so not as States that had seceded from the Soviet Union, but as States who had recovered their independence upon the ending of an illegal occupation. See Mullerson R., “The Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia” (1993) 24 I.C.L.Q. 473, at pp.480–83.

38. See Young Richard, “The State of Syria: Old or New?” (1962) 56 A.J.I.L. 482.

39. In GA Res. 47/1, 22 Sept. 1992.

40. See Wood Michael C., “Participation of Former Yugoslav States in the United Nations and in Multilateral Treaties” (1977) 1 Max Planck Y.B. of U.N. Law 231.

41. See Blum Yehuda Z., “UN Membership of the ‘new’ Yugoslavia: Continuity or Break?” (1992) A.J.I.L. 830.

42. See Blum, ibid, at p.833.

43. Opinion No.l of the Arbitration Committee of the International Conference on Yugoslavia, reprinted in the Appendix to Pellet A., “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples” (1992) 3 E.J.I.L. 178, at 183.

44. Scharf, ibid, at 67.

45. The specialised agencies have in general followed the lead of the Security Council and General Assembly on these issues.

46. See Aufricht Hans, “State Succession under the Law and Practice of the International Monetary Fund” (1962) 11 I.C.L.Q. 154; Gold Joseph, Membership and Nonmembership in the International Monetary Fund, Washington, DC, 1974: and Williams Paul R., “State Succession and the International Financial Institutions: Political Criteria v. Protection of Outstanding Financial Obligations” (1994) 43 I.C.L.Q. 776.

47. See Paul R. Williams, ibid. Louis Forget, “La succession d'états en Europe de l'Est et les organisations financières internationales: l'experience de la Banque Mondiale”, in Geneviève Burdeau and Brigitte Stern (Eds), ibid. and Shihata Ibrahim F. I., “Matters of State Succession in the World Bank's Practice”, in Mrak Mojmir (Ed.), Succession of States, The Hague, 1999.

48. Under Art.III(2)(d) of the Fund's Articles of Agreement, a member State's quota may not be reduced except with its permission.

49. “s'il s'agissait d'une séparation, l'État membre restant, qui était la Republique fédérative de Yougoslavie (Serbie et Monténégro), continuerait l'existence de l'État d'origine, et continuerait d'etre déteneur des droits et obligations de l'État d'origine dans les organisations [the IMF and the World Bank]. Les autres États issus de la séparation ne pourraient dans cette hypothèse devenir membres que par las processus normal d'adhersion.” (Louis Forget, ibid, at p.108).

50. Indeed, the Federal Republic of Yugoslavia's application was refused by the Fund on the ground that it would be unable to perform its obligations under the Articles of Agreement.

51. This is unsurprising, as membership of the IMF is a condition of membership of the World Bank. See Art.II(l)(b) of the World Bank Articles of Agreement.

52. See Jiri Malenovsky, “La succession au Conseil de l'Europe”, in Geneviève Burdeau and Brigitte Stern (Eds).

53. Not an international organisation in the strict sense of the term and still, as the Organisation for Security and Cooperation in Europe, somewhat of an anomaly, being an international organisation without international legal personality.

54. See Emmanuel Decaux, “La succession d'états au sein de la Conférence sur la Sécurite et la Coopération en Europe”, in Geneviève Burdeau and Brigitte Stem (Eds).

55. Jean-Marie Dufor and Sophie Gullung, “Le CERN face aux succession d'états dans les pays de l'Est”, in Burdeau and Stern, ibid.

56. D. P. O'Connell, ibid, vol.11, p.183.

57. Wilfred Jenks C., “State Succession in Respect of Law-Making Treaties” (1952) 29 B.Y.B.I.L. 105 at 134.

58. The Council of Europe, in determining that the Czech and Slovak Republics must apply for membership, seems to have been influenced by the consideration that respect for the fundamental values on which the organisation is based could not be presumed to have been inherited by the successor States and that, accordingly, there existed a need to evaluate their behaviour before admitting them to membership. Art 3 of the Statute of the Council of Europe requires that “[e]very member of the Council of Europe must accept the principles of the rule of law and of the enjoyment of all persons within its jurisdiction of human rights and fundamental freedoms”. See Jiri Malenovsky, ibid, at pp. 134–136.

59. 1997 mid-year estimate. See Wisniewski Daniel (Ed.), Annual Abstract of Statistics, 1999 edition, London, 1999, p.33. Table 5.5.

60. As of 31 Mar. 1981. See supra, p.5, Table 1.1.

61. The SNP has made it clear that it does not want to retain those elements of the UK's nuclear capacity based on Scottish territory, see the SNP Manifesto—General Election 1997, p.31.

62. In 1971 the People's Republic of China replaced the Republic of China as a permanent member of the Security Council, but this was the result of the United Nation's recognition of the mainland Communists as the government of China and, consequently, no issue of State succession arose. Plainly, it would be absurd to hold that a State looses its status as a permanent member of the Security Council merely by changing its name. The list in Art.23(1) must be interpreted as referring to the names of the permanent members at the time of the Charter's adoption. See Blum Yehuda Z, “Russia Takes Over the Soviet Union's Seat at the United Nations” (1993) 3 E.J.I.L. 354 at 360.

63. See UN Press Release SG/SM/4692, SC/5362,31 Jan. 1992.

64. The former republics of the USSR had also so agreed. See the Decision by the Council of Heads of State of the Commonwealth of Independent States, 31 Dec. 1991 (1992) 31 I.L.M. 151. However, the formed republics also stated that the Soviet Union had ceased to exist as a subject of international law. See Yehuda Z. Blum, ibid.

65. For recent discussion of the issue, see Klabbers Jan, “Presumptive Personality: The European Union in International Law”, in Koskenniemi Martti (Ed.), International Law Aspects of the European Union, The Hague, 1998; and Curtin Deirdre and Dekker Ige, “The EU as a ‘Layered’ International Organization: Institutional Unity in Disguise”, in Craig Paul and de Búrca Gráinnc (Eds), The Evolution of EU Law, Oxford, 1999.

66. The EC, Euratom and the European Coal and Steel Community, which is, however, soon to be dissolved and its assets taken over by the EC

67. Consolidated Version.

68. The principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law.

69. See MacLeod I., Hendry I. D. and Hyett Stephen, The External Relations of the European Communities, Oxford, 1996, chap.9.

70. Art.190(2) EC.

71. Art.205(2) EC This provision is also incorporated by reference into the Treaty on European Union, which also requires some decisions to be taken by weighted voting.

72. Art.213(l) EC In fact, the article merely states that there shall be 20 Commissioners (for 15 Member States), so it might not be necessary to amend it if one of the larger states agreed to have one Commissioner rather than two.

73. Arts.221 and 247(1) EC In each case the article only provides that there shall be 15 members of each institution. It is clear, however, that this means one member from each member State.

74. Arts.258 and 263 EC

75. See Harhoff Frederik, “Greenland's withdrawal from the European Communities” (1983) 20 C.M.L.Rev. 13, and Weiss Friedl, “Greenland's withdrawal from the European Communities” (1985) 10 E.L, Rev. 173.

76. Such as treaties delineating boundaries, involving the joint management of waterways or the joint development of natural resources, or regulating frontier traffic.

77. Neither would the newly independent State of Greenland be liable for acts contrary. to the European treaties because, as has been shown, it would not have succeeded to Denmark's membership of the EC.

78. See Piotowicz R. W., “the Arithmetic of German Unification; Three into One Does Go” (1991) 40 I.C.L.Q. 635 and Frowein J. A., “The reunification of Germany” (1992) 86 A.J.I.L. 152.

79. Frowein, ibid, at p.159.

80. See Tavernier P., “Aspects juridiques des relations économiques entre la CEE etl'Algérie” (1972) 8 R.T.D.E. 1.

81. This is not to say that some interim arrangement might apply in the meantime between Scotland and the European Union, but such an agreement would be at the EU's discretion.

* Lecturer in Law, University of Sussex. An earlier version of this paper appeared as a Centre for European Reform working paper, “Scotland Europa: Independence in Europe?”, CER, Apr. 1999. I am grateful to Ben Hall and Kitty Ussher, my editors at the CER, and to my former colleague Chanaka Wickremasinghe of the British Institute of International and Comparative Law for their assistance.

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