Dr. Daniel Kenealy weighs in on the debate about Scotland’s status within the European Union should Scotland vote for independence.
‘This government’, stated Scotland’s Deputy First Minister Nicola Sturgeon on 13 December 2012, ‘believes that Scotland benefits, economically and socially, from EU membership and that the EU benefits – enormously – from having Scotland as a member’. She went on: ‘We are an integral member of the EU and it is simply not credible to argue that the other nations of the EU would not want to retain access to the vast array of resources and opportunities that Scotland brings to the EU table’.
The Deputy First Minister spoke these words in an emergency statement to the Scottish Parliament on the issue of how independence for Scotland would affect that nation’s relationship with the EU. The statement was a rapid reaction response to a letter from European Commission president José Manuel Barroso to the House of Lords Economic Affairs Select Committee. In that letter Barroso asserted that ‘if part of the territory of a Member State would cease to be part of that state because it were to become a new independent state, the [EU] Treaties would no longer apply to that territory. In other words, a new independent state would, by the fact of its independence, become a third country with respect to the EU’.
The issue of an independent Scotland’s status within the EU has rumbled on for some months now with pro- and anti-independence campaigners using it as grist to their respective mills. For the unionists the issue creates uncertainty, which feeds into their broader campaign narrative. For the SNP the idea that Scotland would continue, automatically and seamlessly, within the EU has been central to their public narrative since 1988. The present state of the debate on this topic leaves much to be desired from a public policy perspective.
There is no definitive legal answer to the issue. There is nothing within the EU treaties that explicitly addresses the issue of part of an existing Member State becoming a new state. There is no historical precedent. And there is no case law. What there is, if we look at the history of the EU, is a track record of pragmatically addressing a series of territorial quirks – none of which serve as a direct parallel for Scotland – in a way that avoided unnecessary drama, political tension, and upheaval. Make no mistake, should Scotland find itself outside of the EU for even a brief period it would create drama, tension, and upheaval for countless students, investors, corporations, and fishermen who possess various rights vis-a-vis the territory of Scotland.
The arguments that have been advanced, in public, to date are both overly simplistic. They essentially boil down to a state-centric perspective of the EU versus a citizen-centric perspective. The former view sees the EU as a club of states and argues that because Scotland would be a new state it would be no different to Iceland or Croatia at present. This is the argument articulated in Barroso’s letter and it seems to be the argument offered to the UK government by its own lawyers. It is an argument plucked straight from public international law and the rules of state continuity and secession. But the EU is a distinct legal order, a quasi-constitutional order and it is far from clear that public international law is the appropriate venue in which to shop for answers.
The latter view contends that there is no mechanism through which to deprive those in Scotland of their current rights as EU citizens and thus the presumption must be continuity of membership. This is the argument of, amongst others, Aidan O’Neill QC and it has been echoed by various Scottish government ministers. However, whether EU citizenship is a sufficient base on which to claim on-going membership of the club is contestable. EU citizenship supplements national citizenship of a EU member state and, although the European Court of Justice has sought to extend the reach and content of EU citizenship through the years, it remains secondary and supplementary.
Towards the end of 2012 the Scottish government seemed to move away from this citizen-centric argument and instead offered what they called a ‘common sense‘ perspective on the matter. Such a perspective accepted that there would be a need to negotiate the precise terms of Scotland’s membership of the EU but that these negotiations would take place during the period between a vote for independence (in the fall of 2014) and the date of independence (potentially as early as May 2016). Negotiations would, of course, be complex and numerous issues would be on the table. Such issues would include the various opt-outs currently possessed by the UK and whether an independent Scotland would inherit them, and the UK’s budget rebate and whether Scotland would receive a similar abatement. It would be very difficult for Scotland to retain all of these perks and opt-outs but they are a very separate issue from membership of the EU itself.
While there may be nothing definitive in the EU treaties to solve this puzzle, there is a spirit of good faith and cooperation that underpins the treaties. Such a spirit creates a reasonable expectation that, following any vote in favour of independence, the European Commission (and the other Member States) would enter into negotiations to manage Scotland’s transition to Member State status in a way that caused the least disruption to the union. What is more, the EU’s commitment to democracy and self-determination is hard to square with the notion of expelling part of its existing territory because it exercised a democratic right and expressed its political will for self-determination. The general spirit of the treaties and the fundamental values that the EU claims to stand for may be Scotland’s best friends in such a process.
Few things can be said on this issue with certainty but a combination of political motivations and legal considerations will shape the outcome. What is essential now is that serious thought be given to how the practicalities of Scottish independence might be managed within the EU framework. Questions such as whether the Commission could negotiate with a putative Scottish state before it became formally independent cannot and should not wait until the referendum. It is politically infeasible for those opposed to independence to be seen to be planning for its eventuality and so researchers and academics must step to the plate and do the diligent and quiet work required to start tackling these practical issues. Then, if independence does come, at least we’ll all be a little better prepared.