Continuing state

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If Scotland becomes independent, it will be with the UK's agreement rather than by unilateral secession. Its status in international law and that of the remainder of the UK (rUK) will depend on what arrangements the two governments made between themselves before and after the referendum, and on whether other states accept their positions on such matters as continuity and succession. Even if Scotland and rUK did agree on status, there would still be a question whether other states accept the position agreed - an obvious function of the loose nature of international law and the sovereignty of states [1].

Status after Independence

Most likely, the rUK would be considered the continuator of the UK for all international purposes and Scotland a new state[2]. This was the overwhelming view in the evidence received by the House of Lords Select Committee on the Constitution. Scotland would become a new, successor state.[3] Precedents support that position; it would be consistent with the rest of the UK having the majority of the territory and population of the existing UK; and it would reflect the likely opinion of other countries. No realistic alternative case has been made. [4]. Brandon Malone, a solicitor advocate[5] who supports Independence, agrees that most states would view rUK as the continuator state and Scotland as a new state.

References

  1. Opinion of Professors James Crawford and Alex Boyle, annexed to Scotland Analysis: Devolution and implications of Scottish Independence (HM Government) February 2013)
  2. Opinion of Crawford & Boyle, supra
  3. Scottish independence: constitutional implications of the referendum 16 May 2014, Paragraph 16
  4. Ibid paragraph 17
  5. Partner with a large commercial law firm. He is Chairman of the Scottish Arbitration Centre and Director of the International Centre for Energy Arbitration.
FOR THE UNION FOR INDEPENDENCE

The Treaty of Union

The status of Scotland before the union of 1707 would be of little or no relevance. In particular, the Treaty of Union, considered with or without the Acts of Union, does not currently sound as a treaty in international law[1].

Effect on arrangements

Scotland will have to apply for membership of the EU and other treaty-based organisations, while the rump of the UK ("rUK") will continue to enjoy all such privileges automatically[2]. For example, the rest of the UK would continue as a member of the European Union (with the various opt-outs that the UK now has), although the remaining UK would have to negotiate the number of seats it would have in the European Parliament. The rUK would inherit the permanent seat in the UN Security Council and the present UK's NATO membership[3].

Institutions of the UK would become institutions of the rest of the UK, as the continuator state. Fixed assets would belong to the state in which they are located. Other (non-fixed) assets and liabilities would be apportioned equitably. The exact division would be a matter for negotiation [4].

References

  1. Opinion of Professors James Crawford and Alex Boyle, annexed to Scotland Analysis: Devolution and implications of Scottish Independence(HM Government) February 2013)
  2. Opinion of Crawford & Boyle, supra
  3. Scottish independence: constitutional implications of the referendum 16 May 2014, Paragraph 11.
  4. Ibid, paragraph 28

The Treaty of Union

Effect on arrangements

Brandon Malone (supra) questions whether the UK Government's position really is that Scotland has no entitlement to any of the accrued international benefits of the Union and that the rest of the UK will inherit the UK's treaty benefits, including in particular EU membership, and Scotland will not. Is there a difference in principle between the division of that asset, and the division of, say, Foreign Office property abroad, or the national debt[1]?

References

  1. Journal of the Law Society of Scotland: A Singular Status, November 2013