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The Scotland-UN Committee
The
Succession of States
What
will happen after the referendum?
James Wilkie
When states
divide or disintegrate it is normal that a whole network of issues have
to be settled regarding what international commitments of the previous
state the new one can or must take over. This is a question that will
become acute if and when Scotland decides to leave the UK.
It is
completely certain that the United Kingdom will continue to exist
legally without Scotland, so that nothing will change in its case.
Scotland, on the other hand, as a brand new state for legal purposes
(although actually a reborn one), will have to start with a clean sheet
and build up its network of international relations from the start.
This
document starts with a concise summary of the relevant international law
on state succession in respect of treaties and other agreements,
including membership of international organisations. It then discusses
the likely course of developments in the particular case of an
independent Scotland, and the procedures that will have to be followed
in order to establish Scotland’s external relations – not simply with
other sovereign states, presently around 200 in number, but also with
the even more numerous international organisations that constitute the
new and strongly emerging global political system. That will be the
framework within which Scotland will have to exist and work for all of
the foreseeable future.
What does
international law say?
The rules of international law concerning cases of
state succession were codified within the framework of the United
Nations in the 1978 Vienna Convention on Succession of States in
Respect of Treaties and the 1983 Vienna Convention on Succession
of States in Respect of State Property, Archives and Debts. Despite
the modest number of 15 ratifications that are required, only the 1978
treaty has yet entered into force with around two dozen ratifications,
mostly by developing countries. The United Kingdom has not acceded to
them. Neither of these two treaties applies to Scotland in any
context. As far as Scotland is concerned, the succession of states
remains governed by customary international law.
The question of state succession seemed to
have become a purely theoretical matter after the end of the
decolonisation process, but it has been reactivated by the events of
recent years. The unification of Germany and Yemen raised specific legal
questions, but the dissolution of the Soviet Union, Yugoslavia and
Czechoslovakia brought the entire issue of state succession into the
foreground once again.
As regards bilateral treaties under
international law, i.e. treaties between two individual states, the
so-called “clean slate” principle applies. According to this principle,
a newly emerging state is not as a rule automatically bound by treaties
entered into by its territorial predecessor. The only exceptions are
bilateral treaties applying to specific geographical areas (“localised
treaties”), for example on border regulation, transit rights,
trans-border river management, etc., which would automatically be taken
over by the successor state(s) on the same territory. Any such issues
arising out of Scotland’s independence would almost certainly need to be
freshly negotiated, since few such agreements, if any, would exist in
legal form.
In the case of multilateral treaties under
international law it is customary that a new state presents a so-called
“declaration of continuity” to the depository of the treaty, to which it
thereby becomes a party. The depository of a global treaty (e.g. on
disarmament) is usually the United Nations Organisation, at regional
level the Council of Europe (CoE), the UN Economic Commission for Europe
(UNECE) or the Organisation for Security and Cooperation in Europe (OSCE).
The European Union (EU) does not function as a depository in this
manner, since only EU-internal agreements are concluded under its
auspices.
Such a right does not, however, apply to the
so-called plurilateral treaties that are limited to certain
states for geographical or functional reasons. In such cases, succession
to a treaty is possible only with the consent of the other States
Parties, and even then only if it would be consistent with the object
and purpose of the treaty. This means that an independent Scotland
would have to make a fresh application for membership of the Council of
Europe, the European Union and similar organisations where membership is
dependent on meeting certain conditions.
In order to avoid a legal vacuum after the emergence
of a new state, it is customary, providing there is mutual agreement, to
apply the provisions of existing treaties pragmatically to the successor
state for a limited transitional period. This can last until such time
as the treaties in question are formally adopted by the new States
Parties, are materially replaced by fresh agreements, or the new state
decides to make other arrangements. Such pragmatic application
substantially reduces the practical differences between the “clean
slate” principle and the principle of the continuity of treaty
obligations. It is in any event always necessary to examine bilateral
treaties entered into with a state that has disappeared in order to
determine whether the contents shall be applicable to its successor(s).
What usually happens is that talks with successor
states are followed by an exchange of diplomatic notes by which certain
treaties concluded with the predecessor states can be put into force,
with any necessary modifications, in relations with the new states. The
“localised treaties” will be formally declared in force with the
territorial successor states in such exchanges of notes. Insofar as such
exchanges of notes cover treaties originally concluded with
parliamentary approval, these will require to be brought before the
legislature once again.
What will happen in
Scotland’s case?
The answer to this question is already clear, despite
all the confusion and conflicting opinions based on nothing more than
supposition and garbled information. In the first place, it should be
made clear that the status of Scotland and the rest-UK will be decided
within the United Nations, and certainly NOT in Brussels by the European
Union or any other organisation.
The EU, which represents only half of Europe, has
absolutely no power of decision on such matters. It has no option but
to accept the recognition of independent Scotland by the rest of the
international community, nor could there be any question of the EU
deciding the status of the United Kingdom minus Scotland. That, too, is
beyond its legal authority, as would be any form of political or
economic discrimination with the objective of forcing Scotland into
membership or any other particular form of relationship. Such
illegality would be immediately actionable at the United Nations or the
World Trade Organisation (WTO).
It is already certain that newly independent Scotland
and the continuing remainder of the United Kingdom will not have equal
and identical status during the process of separation. It is
nonsensical to suggest that a state of 50 million people would have to
draw a line under its previous existence and start afresh from scratch
in every respect after losing 8.4 per cent of its population. Every
relevant precedent demonstrates that that is not how international law
views such a development. This was most recently confirmed when the
Soviet Union broke up into its component parts. The breakaway states
(Kazakhstan, Georgia, etc.) had to make fresh starts, whereas the
international status of the Soviet Union, including permanent membership
of the UN Security Council, was taken over by its largest component, the
Russian Federation.
The same thing will happen with the UK. It will
continue after the 8.4 per cent reduction in its size, with the same
status and functions in international affairs – including two permanent
seats in the United Nations (General Assembly and Security Council) –
and all its treaties and other international commitments will remain in
force. It is likely that its title will change (e.g. to The United
Kingdom of England, Wales and Northern Ireland), but otherwise it will
continue as the same constitutional entity that has been recognised by
the international community for several centuries.
This leaves Scotland in the position of starting
afresh with a clean sheet – and it is vital that this unique and
unrepeatable advantage, the opportunity of centuries, is not squandered
by over-hasty decisions based on inadequate or garbled information, or
manipulation by vested interests. Every step that Scotland takes on the
international stage thereafter must be subjected to minute scrutiny in
terms of its necessity, its utility and its desirability.
The necessity of membership is self-evident in the
case of the United Nations. No state is truly independent until it has
international recognition and a seat in the UN General Assembly. Much
the same degree of necessity applies to several other major institutions
like the World Trade Organisation as well as those specialised
institutions like the IMO, ICAO, ITU and many others that regulate
international economic, transport, health and other relations on a
global basis.
Scotland should apply for membership of the major
all-European organisations as a matter of utility during the present
transitional phase of the continent’s development. It is unfortunate
that the European scene has been bedevilled by the 27-member European
Union, representing just over half of the continent in terms of member
states, geographical area and overall population, but with ambitions to
hijack the identity of political Europe as a whole.
There is, of course, no question of independent
Scotland “remaining” a member of the EU, or for that matter any other
international organisation of which the UK is presently a member. A
formal application for admission will have to be submitted in every
case, and the qualifications for membership will have to be met. The EU
must be treated strictly on the same basis as every other one of the
dozens of international organisations that independent Scotland will
have to join, with a stringent examination of its suitability or
otherwise for Scottish membership.
In the case of the EU there is a perfectly viable
alternative available that would not endanger Scotland’s sovereignty to
the same degree. Scotland can obtain whatever economic advantages of
the EU there may be by joining the EFTA side of the European Economic
Area, like Norway and (de facto) Switzerland. If there are any
non-economic advantages of EU membership, then these must be explained
in detail, and weighed against the disadvantages.
It ought not to have been necessary to single out
this one organisation for special mention, because many of the dozens of
international institutions that Scotland will have to join are of
considerably greater importance than the EU.
One of the
most disturbing features of the present Scottish political scene is the
existence of a powerful lobby that clearly intends to railroad Scotland
into the EU for unexplained reasons that are not necessarily connected
with the welfare of the Scottish people. The almost fanatical
insistence that it is necessary to join this single, dangerously
undemocratic organisation that has been nothing but an economic disaster
for Scotland, reveals the degree of ignorance of those who expound it.
While giving the impression that the EU is simply all they know about
international relations, the motivation behind the campaign is probably
much more sinister, and connected with maintaining post-independence
power over Scotland and its resources.
Finally, there is the question of Scotland’s
post-independence relationships with the other autonomous states of the
so-called British Isles. Constitutional independence essentially means
that the ultimate power of decision making over Scottish affairs will
revert to Scotland. This is as it should be, but it is undeniable that
many issues will remain that will have to be decided on a joint basis.
Immigration is the most obvious one – we just cannot have different
policies if we are to avoid having border controls. Scotland as an
entry door for foreign influence was the primary reason for the Union in
the first place, from the English standpoint, and it would be essential
to avoid having this problem rear its head once more in respect of
population movement.
Homeland security generally is an obvious issue for
joint decision making, as are many others like transport links and
infrastructure, fisheries management, coordination of policies on some
foreign policy issues, and many others. These confederal-type
arrangements need not involve the creation of bureaucratic institutions,
since regular conferences should suffice to cover the details, which
would have to be approved by the various parliaments.
It would be highly desirable for the Republic of
Ireland to be included in this system of cooperation between friends and
neighbours, and who knows – when the last vestiges of colonialism and
imperialism have finally been expunged from our islands, a new age of
much healthier relationships may dawn, and old wrongs be put right.
Friends and Neighbours is indeed the goal of all our endeavours, and
with constitutional independence for Scotland it will be brought that
much nearer.
You can download a .doc version of
this paper here |
