There's not much that the Scottish and UK Governments agree on in the debate over Scotland's constitutional future.
But one thing on which there is consensus is that, in the event of a Yes vote, there will be a sharing of assets and liabilities on a 'fair and equitable' basis. The question is how do you determine what is fair and equitable?
Although there are some general principles of international law that could have an impact, there is no clear consensus in international law and practice on how to split the 'goodies' as well as the debts.
Generally speaking, fixed property located within the state goes with the territory and moveable assets are shared out.
In evidence to the Scottish Affairs Committee recently, Professor Adam Tomkins stated that while there needs to be a fair allocation of assets and liabilities, there is a distinction to be made when it comes to the 'institutions' of the UK; and that they will all fall to rUK as the continuing state.
An argument can be made that the dissolution of the 1707 union between Scotland and England and Wales means the dissolution of the UK as a state. However, the UK Government has made it clear that it will claim continuator state status.
The politico-legal reality is that rUK will be accepted as the continuing state by the international community. It is therefore true to say that the public institutions of the UK would become the public institutions of rUK.
But it is also important to remember that just because an institution is not divisible does not mean that its value should be unrecognised. Professor Tomkins accuses the Scottish Government of failing to distinguish between the assets and institutions, but he himself conflates UK institutions with the assets in the possession of those institutions.
So, for example, the UK's foreign embassy network is part of an 'institution' (the Diplomatic Service) which cannot be divided. However, the value of the assets of the institution (i.e embassies and other overseas assets) would have to be taken into account in any 'equitable' division. There is a difference between the actual physical division of assets and taking the value of assets into account in a division.
In practice, what will happen in the event of independence is that the rUK will remain liable for the existing national debt and it will then be a question of how much of that debt Scotland agrees to pay to rUK and on what terms.
A value correlating to Scotland's share of the UK assets which remain with rUK will need to be deducted from Scotland's share of the debt. Alternatively embassy sharing arrangements and cooperation on other institutions could be negotiated.
Perhaps the thorniest issue in this area is the question of the UK pound. The Bank of England is a UK body and the pound is the UK's currency, and as 'institutions' of the UK they would stay with rUK. Scotland cannot compel rUK to enter into a currency union. However, as the Scotland Institute report 'Debt and Destiny' confirms, it is equally clear that the pound Sterling is an 'asset' in the broad sense of the word, that it has a value, and that this value is to be recognised in a division of assets.
What is the value of keeping the pound? On one view the pound is a fiat currency underpinned by very little besides the UK's gold and foreign currency reserves, and Scotland's oil. On the other hand, it has been suggested that having a currency union could mean the difference between Scotland having a AAA credit rating or not.
Therefore, the value of retaining the pound to Scotland is potentially very significant. Enough to wipe out Scotland's share of the national debt? Probably not, but let's be clear, if Westminster refuses a currency union and insists on keeping the UK pound to itself, that will have to be recognised in the level of the UK debt accepted by Scotland, and that has significant implications for both countries. This is one of many reasons why a currency union will happen.
In earlier evidence to the Scottish Parliament, Professor Tomkins suggested that 'whatever political negotiations follow a Yes vote in September should take place in a framework of established principles of law'. The fact is that there are no binding rules of domestic or international law governing the division of the UK's assets and liabilities.
Unless Scotland and rUK agree to submit to a third party (such as the International Court of Justice or an arbitral tribunal) there is no way for either side to enforce a division of assets and liabilities. It will therefore be a question of hard political bargaining.
One hopes that common sense will prevail and that an equitable division will be reached quickly, but what is clear is that taking factors such as the UK's primary liability for the debt and the situation of Trident in Scottish territory into account, Scotland will be in a strong negotiating position, and there is no reason to fear that Scotland will suffer an inequitable division of the assets that it has helped the UK to accumulate over the centuries.
Brandon Malone is a solicitor advocate and a member of the Business for Scotland Advisory Board. He lectures on dispute resolution at various Scottish universities and sits on the Law Society of Scotland's Constitutional Law Sub-committee. He is a founding member of Lawyers for Yes. No fee has been paid for this article.
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