An independent Scotland would not have to join the EU. But most Scots want Scotland to be an EU member. It has been SNP policy for a generation, as this vintage clip of Alex Salmond debating Michael Hesteltine and John Smith shows.
There is no precedent, however, for what happens if part of a member state becomes independent and wishes to remain part of the EU. The separation of Greenland from Denmark, the independence of Algeria, the reunification of Germany and the bifurcation of Czechoslovakia are not parallels. The absence of precedent is one reason why both sides have been vigorously debating the legality of Scots’ case.
In this post I want to try to explain the two sides of the argument – and why legal opinions will ultimately come second to political calculations outside of Edinburgh.
If there were a Yes vote, there are two plausible options for how Scotland and the rest of the UK (rUK) could end up having to deal with Scots’ EU membership. I have called these the “hard way” (from Scotland’s point of view) and the “easy way”.
- The hard way: rUK remains an EU member; Scotland needs to apply;
- The easy way: Both Scotland and rUK remain as EU member states.
These rival ways of thinking reflect different interpretations of international law, which in turn look to different articles of the Treaties of the European Union (TEU), the rules under which the EU is supposed to operate. In short, the hard way emphasises EU states over EU citizens and the primacy of Article 49, while the easy way emphasises EU citizens over EU states and the primacy of Article 48.
The hard way
“Scotland would be required to accede to the EU as a new state”, write Professors James Crawford and Alan Boyle in their official legal guidance to the UK government. Under the standard rules of public international law, rUK would be “the continuing state” and therefore it would inherit all the obligations of the UK. Scotland would start from a legal beginning. Edinburgh would therefore have to wait to apply for EU membership as per the provision for accession in the TEU – article 49.
Scotland would then have to go through the same – if accelerated – process that Croatia went through before it became the 28th member of the EU in July last year.
A similar argument has been made by Romano Prodi and Jose Manuel Barroso, former presidents of the European Commission, the organisation that would referee negotiations. However, Jean-Claude Juncker, the new president of the Commission, might be more “sympathetic” to Scotland, according to reports. This would make things easier but the key decisions would still be made by member states.
The easy way
This side contests that the TEU is not simply about the relationship of one state to another but about values and the obligations of the EU towards EU citizens. For examples see the work of Sir David Edward, a former judge at the European Court of Justice, and Professor Sionaidh Douglas-Scott, a barrister and Oxford professor.
They both argue that: respect for democracy is enshrined in the TEU, that there are legal obligations to maintain the single market, and that there is such a thing as EU citizenship that cannot be easily removed from people who currently enjoy it. Sir David adds that this is not simply about Scots. There is a duty to uphold the rights of the EU citizens based in Scotland and investments by EU companies.
The easy way says that the EU can use the same trick it used to set up the European Stability Mechanism. Rather than use entry via Article 49, they say it would be possible under Article 48 for member states to accept an amendment to the TEU to allow Scotland to continue in the EU. In other words, the hard way means Scotland is treated like Croatia, the easy way means it is treated like the eurozone bailout fund.
Politics > law
I claim not legal qualifications but there are clearly merits in each argument. The one thing these lawyers do agree on is that politics is more important than which side of the argument is “right”. This has good and bad news for the nats.
The good news is that the EU has repeatedly shown itself to be pragmatic (to put it euphemistically) when it comes to its treaty interpretations. If the member states and EU institutions wanted to take the easy way then surely they could do so.
As Lord Kerr, a former permanent under-secretary at the Foreign Office, explained in an article on Wednesday for the Centre for European Reform, the practical issues about the euro, free movement of people and opt-outs are actually relatively simple.
The bad news is that the process is not in Scotland’s control. Nor that of London and Brussels. One way or another, all existing member states would have to agree.
The typical concern drawn from this observation is that another state – usually Spain – will want to block or slow Scotland’s entry for domestic political reasons.
Perhaps. But there is another issue, Lord Kerr says: “The EU will adamantly refuse to mediate between London and Edinburgh.” The former mandarin suggests that member states will want to know what version of Scotland they are admitting. (Note also that Scotland would need rUK help if it wanted to negotiate with the EU prior to its emergence as an independent state – this might give it an incentive to play nice.)
Moreover, the European Commission’s current position is that of the hard way, so an independent Scotland would start from a position of having to change the rules.
Scotland would have to think about what it would do if it became independent outside of the EU. It could, for example, simply say that it would continue to act as if it were a member of the EU while it waits for other member states to recognise and ratify it.
Planning for uncertainty
Ultimately, an independent Scotland would be able to join the EU. I don’t buy shrill threats of permanent exile. But when and how are not easy questions to answer. This point is worth dwelling on briefly for it carries wider relevance. There are questions that cannot be answered definitively before the vote. Many are contingent on decisions made outside of Scotland. It is not scaremongering to point this out.
In Scotland, many people feel that they want more information or that they do not know whom to trust. They are caught in a storm of propaganda. I sympathise with this feeling. There is a good deal of nonsense being spewed from both sides, though I believe that the Yes campaign is typically more disingenuous. Even so, there are going to be known unknowns. Ease of EU membership is probably one of them.