International legal aspects of the Scottish referendum.

Both UK and European media have tried to evaluate the consequences of the upcoming Scottish referendum, for the UK as well as for Europe, most especially for the EU. A few US newspapers have also concerned themselves with the matter, such The New York Times under Paul Krugman’s pen1, who advised the Scots against building an independent government while still sharing the same currency (and interestingly enough, quoting the EU and its Eurozone as the example not be followed in that respect).

However, most of these articles were written from a politically motivated2, and not an academic, point of view. And those academics that have dealt with the issue mostly belonged to the fields of economics3 and political sciences4. Only a few UK/Scottish articles aimed at providing a legal analysis of this situation, and then only from the point of view of UK/Scottish constitutional law5.

What seems to be missing is an in-depth analysis of the situation from the point of view of international law. We shall here attempt to fill the blanks.

The Scottish referendum as an issue of international law

First, why should the Scottish law be apprehended by international law at all? The very denomination “international law” leads one to believe that international law is concerned solely with international situations. Or as matters stand when we are writing, Scotland is still part of the UK, and therefore the whole issue would seem to be governed only by national UK law.

But why should a referendum on independence issues held in the Crimea be an issue interesting international law, while a similar referendum held in Scotland should remain within the scope of application of national law? Because the Crimean situation is one of conflict, while the one in Scotland has remained peaceful? Or because the need for a referendum in Crimea had been created by the intervention of a third state into what had up to this moment be deemed to be an internal Ukrainian issue? Or is there a more systematic (legal) criterion to determine which situations do fall under the scope of application of international law, and which ones do not?

A modern conception sees international law as concerned mostly with international situation, but also with internal situations, i.e. with situations kept within the borders of a single state: according to this modern conception, the scope of international law is potentially unlimited6. For instance,international law prescribes standards as to the treatments to which states may or may not expose their own citizens, and provides corresponding monitoring, and possibly sanctioning, mechanisms in case of violation of these norms. The border between legitimate concern for the human right situation within a particular state (leitmotiv: “responsibility to protect!”) and illegitimate intervention within a sovereign state’s internal affairs is however thin, whenever other states have to take action to enforce norms dictating a state’s internal behaviour.

However, if the scope of application of international law is possibly limitless, states are not selfless: they are only concerned with those internal issues of another state to the extent that these issues might affect them. Therefore, international law only takes up those internal situations that have the potential to become international: this is for instance the criterion used in art. 34 of the UN charter, commanding the Security Council’s competences. And in a worst-case-scenario, the Scottish case could turn out to be such an internal situation turning into a matter of international concern. International law aims at protecting a people’s right to self-determination (among others, in art 1 (2) of the UN Charter)7. And it is not disputed, not even within UK-British society, that the Scots represent a people of their own8. Should the UK disregard the Scottish decision as expressed in the coming referendum, the whole matter may become of acute interest to international society – and therefore, a problem to be apprehended by international law. A similar referendum held in almost any African state would cause international organizations to send armies of neutral observers to monitor the degree of democracy of the whole process. The Scottish referendum may not be a cause of concern for the international community in that respect, but still remains of interest to international legal scholars.

Concrete international legal issues posed by the Scottish referendum: chosen examples

Even in the hypothesis of a peaceful scenario, the Scottish referendum would be a perfect candidate for a case study in international law- international law in the most classical sense of the term, as a law concerned only with international situations. Should the Scottish people opt for independence, we would be faced with a case in which an international situation, supposing relations between two sovereign and independent states, would have arisen from a purely national situation. And international law does comport norm regulating state division. Some of these rules apply only to conflict cases (for instance, to solve disputes about the property of the previous sovereign, or about liability for debts)9 but some also provide useful guidance as how to smoothly operate a peaceful division.

Furthermore, international law is not concerned with state division merely in order to help the involved states navigate such a moment, but also in order to ensure the smooth running of the international order per se, through its institutions. Would, in case of independence, Scotland be accepted as an UN member of its own right? What about WTO membership? However, it cannot be ignored that these decisions are as legal as political: for example, after Russia declared Abkhazia and South Ossetia to be free, independent and sovereign states, none of them were admitted as UN or WTO members. The political aspect of a decision over a state’s UN membership shows at two stages of the process. First, UN membership (for “newcomer” states) is governed by art. 4 of the UN Charter. But its provision do not dispose that any state will become, in these sense that “it must be admitted” as, a new UN member: art. 4 merely states the conditions under which membership could be granted (the main condition being in relation to the applicant state’s “peace-loving” character). Referring to the applicable provisions of the UN General Assembly’s Rules of Procedure (rules 134 to 138), it becomes plain that this decision is the outcome of a political process taking place first within the Security Council (deciding in favour of recommending or not the applying state) and afterwards within the General Assembly, deciding with a two-thirds majority to finally grant membership or not. The General Assembly’s decision is supposed to address only the questions of whether or not the applicant state is peace-loving and able to carry out all obligations arising under an UN membership (rule 136), but political motives may be hidden, or directly influence, this assessment10.

But the process leading (or not) to UN membership is already political at an earlier stage.According to international law, an entity may only accede to the status of a state if it has been recognized as such by its peers, i.e., by other states11. And this recognition is highly politically motivated, in the sense that its represents just another means for states to pursue their own aims, and advance or protect their own interests on the international scene: Georgia clearly had no interest in recognizing South Ossetia and Abkhazia as states, while such a recognition was fully coherent with Russia’s international policy. And for many states not directly concerned with the matter by lack of a direct border or other contact point with one of the two new-born entities, the act of recognizing them or not was driven by the wish to align with one or the other opponents (or their allies, for what matters: in international politics too, my friend’s friend is my friend).

But even in the political dimension related to membership in international organizations, the consequences of the Scottish referendum shall also be governed by international law, in the sense that international law provides a decision framework in international politics (the term “international constitutional law”12 may not be exaggerated here).

These are the questions raised by the Scottish referendum to which global international law norms apply. However, others aspects are only of interest to the other states located in the same world region as Scotland, who have defined norms of international law only applicable to themselves, i.e. to their specific region: these aspects raise issues in terms of “regional” law – more precisely, European Union law.

Questions raised by the Scottish referendum in terms of EU law

Scotland has been so far involved with the EU, and the Council of Europe, as part of UK territory. As for UN membership, these memberships would be retained by the UK, since it would go on existing as a state. The present situation is in terms of state succession different from the one which arose after the collapse of the Soviet Union: this was really a case of state succession in the strict sense of the term, the Soviet Union having ceased to exist as a state. A “successor” who would take over the rights and obligations of the Soviet Union arising from the different international agreements to which it had been party, including for instance UN membership (these rights and obligations went in the end to Russia).

The Scottish referendum would however not open a case of state succession, since only one state (a sovereign and independent Scotland) would be created while no state would disappear. Scotland has therefore no claim to the UK’s various memberships in international/regional organizations, and contractual rights derived from various international/regional agreements.

Obviously, nothing could ever prevent Scotland as an independent and sovereign state from entering on its own into international law obligations, and from becoming a member of the international or regional organization of its choice. The true problem is: will these organizations accept Scotland as a new member?

EU law does not foresee any mechanism by which states freshly baked out of a part of one of its member states’ territory would automatically be granted the member state status: therefore,Scotland as an independent state would have no automatic claim to the status of an EU member state. The same can be said of the Council of Europe, the NATO and the OECD.

However, Scotland as an independent state would be eligible to apply for membership. But as in the case of UN membership, the process of granting EU membership is a highly politicized one, in spite of the existence of clearly formulated membership conditions, that have been largely commented upon by legal scholars.13 We shall here just quote the first, and maybe most essential and most logical requirement to EU membership, as set out in the opening of art. 49 TEU: only European states may become members. Since the same provisions require of any candidate to respect EU values as set out in art. 2 TEU, it can be deduced that “European” is here only to be taken in a geographic, and not a cultural meaning. But where do Europe’s borders lie? Who decides what is, and what is not, part of Europe? This decisive issue has to be decided individually for each applicant country. And here, the geographical may become political, and the decision may turn out to be culturally motivated.

One could argue that Scotland, as a former part of a state that has been EU member state for over 30 years, clearly is European enough. To which it could be retorted that Scotland had represented the most northern part of the UK, ex-centred, to the point of cutting itself out from the UK without difficulties in order to gain independence – and that therefore, Scotland maybe too Nordic to be truly European.

Fallacious argument? This geographic argumentation may hide strong political motivations.Scotland’s independence would be a peaceful and democratic process, taking place with the UK’s consent, and not a conflictual one. However, other EU member states currently experience difficulties with some of their own regions craving for independence: Spain, the Netherlands to name only two. These EU member states currently try to convince their separatist regions to stay with them by arguing that once independent, they would be alone and crushed in the mechanics of globalization. But Scotland if welcomed to the EU would prove the contrary: that even small states can find their way into larger regional organizations, and thus not be left isolated. The Scottish case would set a precedent and maybe motivate other separatist regions to make the move towards independence. This provides a powerful motive to the concerned member of the EU to vote against granting Scotland EU membership.

But these considerations bring us back to the political debates to which the upcoming Scottish referendum gave rise, while we were only striving to provide a few explanations regarding the international and European legal framework of a possible Scottish independence.

source :http://worldpoliticsjournal.com/