Independent Scotland would lose international rights, say experts

Tuesday 16 October 2012

An independent Scotland would lose all of its international rights and obligations while the rest of the UK would continue as before, according to three London-based constitutional experts.

The Scottish Government insists that Scotland would become a joint-successor state to the existing international treaties and memberships alongside the remainder of the UK.

However, three constitutional experts today told the Commons Foreign Affairs Committee that Scotland would start with "a clean slate", potentially losing all of the UK's existing opt-outs of the euro currency, the Schengen passport-free travel area, and its budget rebate.

Scotland may also have to erect border posts with the remainder of the UK, it was suggested.Dr Jo Eric Murkens, senior lecturer at the London School of Economics law school, took issue with the Scottish Government's insistence that independence would herald the dissolution of the 300-year-old Act Of Union and reinstate Scotland's historic nation-state status."Nobody is seriously suggesting that we could go back to 1707," he said. "The legal entities that existed at the time would exist no more."Scotland would secede, and the rest of the UK would effectively continue as the UK so there would be no change south of the border.Dissolution does not correspond to international practice."When we look at the relevant precedent cases, particularly the break-up of the Soviet Union in 1990-91, it was very clear that the international community wanted Russia to continue as the continuing state."A main factor in that case was the existence of nuclear weapons, and the international community wanted Russia to take control because they were scattered around the Soviet Union in other states, and it was very clear that they didn't want small states with a nuclear ability."I think this is an exact parallel with the UK, and the international community would want the UK to continue and for Scotland to start afresh."Professor Robert Hazell, director of the University College London constitution unit, agreed."I think the rest of the international community would readily acknowledge that the rest of the UK was the continuing state, because it would create much greater political stability, and in general make their lives easier," he said.Professor Matthew Craven, director of the Centre for the Study of Colonialism, Empire and International Law at the University of London, confirmed that the only historical example of a state dissolving into its previous entities was the short lived United Arab Republic, where Egypt and Syria came together for three years between 1958-60."That was a very exceptional situation," he said."I think in all other cases one would be thinking either the breaking apart and creation of two entirely new states, or a scenario where one part of it continues as the predecessor state."The experts also agreed that Scotland would have to reapply to join the European Union, and while they would probably be fast-tracked back in, they would have to sign up to all of the mandatory rules of membership such as the euro and Schengen."There is no doubt in my mind that Scotland would qualify as a new member state, but my only issue is with the word 'automatically'," said Dr Murkens."Scotland would not inherit the opt-outs to the euro and Schengen. It is a condition for membership for all new EU countries that they join the euro and Schengen."There have been no exceptions. Exceptions have been requested but none have been granted."The only two countries that have the opt-out from the euro are Denmark and the UK and those opt-outs were secured in the Maastricht Treaty negotiations in 1992."That offer has not been extended to any new member states. The opt-out would continue for the rest of the UK."He added: "It is also an obligation of every new member state to join Schengen."That means that a German national or French national travelling on the continent could fly into Scotland without showing a passport, but if that person wants to travel to England they would then have to go through border control and associated immigration control so there would have to be an internal border between Scotland and the rest of the UK."

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Independent Scotland would lose international rights, say experts

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