A former judge has said that Scotland's membership of the EU will
be a matter of negotiation not law
Scottish independence: Scotland not automatically in or out of EU, says former judge
by Jennifer Elliott and Joanna Edwards
A leading expert on EU law has said that Scotland would neither have to leave the EU after independence nor would it automatically gain permanent membership.
Sir David Edward has provided an analysis of possible events in the aftermath of the 2014 referendum. As part of his report, he maintains in terms of “legal certainty”, EU law would “require all parties to negotiate” before ‘separation’ took place.
Crucially, the Scottish lawyer and academic is of the opinion that the result of these negotiations is "hardly, if at all, a matter of law.”
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The opinion of the former British Judge is highly significant given his time involved in European legislation. In 1989 Sor Edward was appointed one of the inaugural Judges of the newly-created European Court of First Instance, and in 1992 he was appointed Judge of the European Court of Justice, a position from which he retired in 2004.
The Scottish National Party and the pro-independence Yes Scotland campaign have welcomed the written opinion by Professor Sir David Edward, who currently holds the position of Professor Emeritus of the University of Edinburgh, where he was Salvesen Professor of European Institutions and Director of the Europa Institute from 1985 to 1989.
Welcoming Sir David Edward's contribution, Deputy First Minister Nicola Sturgeon said:
“This is a hugely welcome contribution to the debate on Scotland’s future in Europe from one of the leading experts on the subject, not just in Scotland but anywhere in the Continent.
“Sir David’s view that negotiations on Scotland’s continued European Union membership will take place before independence concurs with the Scottish Government’s position. And his opinion that Scotland’s continued EU membership will require a treaty amendment – not an accession treaty – also coincides with our position, especially given that Scotland by definition already meets the EU entry criteria."
The development comes after a recent speculation surrounding comments made on the matter by the president of the European Commission. Jose Manuel Barroso appeared to suggest that Scotland would be outside the EU and have to apply for EU membership. This was widely reported as contradicting the SNP position that Scotland would gain automatic permanent EU membership.
Sir Edward maintains neither contention is correct.
SNP wrong to imply ‘seamless transition’
Though Sir Edward appears to agree with the SNP that Scotland would not automatically lose EU membership, the Scottish academic does not believe that Scotland would automatically or easily negotiate the terms of an autonomous membership.
Sir Edward states: “There would be no automaticity of result in either direction. Since the situation would be unprecedented, and there is no provision in the Treaties to deal with it, one must look to the spirit and general scheme of it.”
It would be therefore necessary to decide how and by whom negotiations would be conducted. Until the moment of separation, the UK would be the existing member state upon which the obligation to negotiate would fall.
The former judge believes how this would be handled would be a matter itself for negotiation. However, Sir Edward maintains that negotiations between Scotland and the rest of the United Kingdom should be conducted “equally in a spirit of good faith, sincere cooperation and respect for the concerns of other member states.”
Seeming to echo the move by Scotland’s deputy first minister, Sir Edward called for negotiations before an independent Scotland came into being, stating:
“the EU institutions and all the Member States (including the UK as existing), would be obliged to enter into negotiations, before separation took effect, to determine the future relationship within the EU of the separate parts of the former UK and the other Member States.”
Scotland would not automatically lose membership
Nicola Sturgeon has publicly disagreed with Mr Barroso’s comments on an independent Scotland automatically having to re-apply for entry to the European Union.
Scotland’s deputy first minister wrote to the EC rejecting the president’s assertions and requesting urgent discussions – a move that was highlighted by House of Lords member Lord Lipsey as being “the last refuge of a scoundrel.”
However, Ms Sturgeon argued that if Scotland does vote for independence in 2014, it would remain part of the United Kingdom for the period immediately after the vote and would thus be able to negotiate with the EU while still technically a member.
Ms Sturgeon said: “There is no provision for removing EU treaties from any part of EU territory or for removing European citizenship from the people of a country which has been in the EU for 40 years.”
Sir Edward refers to Article 50 of the Treaty on European Union, or the “Lisbon Treaty.”
Article 50 expressly provides that withdrawal from the EU requires negotiation of the terms of withdrawal, and withdrawal will take effect only on the date agreed or two year after notification “but certainly not immediately”.
When considering that the treaty does not deal expressly with a situation such as an independent Scotland in the European Union, Sir Edward highlights the importance of this article. The academic holds the sentiment as “evidence of the spirit and general scheme of the Treaty, which must be taken into account.”
Sir Edward explains the reason why Article 50 requires a period of negotiation is that withdrawal from the Union would involve the unravelling of a highly complex infrastructure of budgetary, legal, political, financial, commercial and personal relationships, liabilities and obligations.
Re-negotiation not re-application
Sir Edward argues that, if the Treaties do not address specific instances, such is the case with Scotland’s entry to the European Union, negotiations would ensue.
The outcome of such negotiations, “unless they failed utterly”, would be agreed amendment of the existing Treaties, not a new Accession Treaty.
Sir Edward reiterates that until the moment of separation, if that is the end result of the referendum, Scotland would remain an integral part of the EU. The Scottish people and all EU citizens living in Scotland would enjoy all the rights of citizenship and free movement; and the same would apply, correspondingly, to all other EU citizens and companies in their relations with Scotland.
The former judge of the Court of Justice of the European Communities continued to state that the solution to any problem for which the Treaties do not expressly provide must be sought first within the system of the Treaties, including their spirit and general scheme, as is detailed in the Vienna Convention on the Law of Treaties, Article 31 (1):
“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.”
Only if the Treaties can provide no answer would one resort to conventional public international law (including doctrines of state succession).
Sir Edward also noted that he did not believe the Treaty-makers reasonably intended that there must be prior negotiation in the case of withdrawal “but none in the case of separation.”
Rights of the Scottish population
The Lisbon Treaty, signed on 1 December 2009, details the following:
“The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintain law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”
The use of ‘national identities’ appears to relate to an independent Scotland’s relations with the European Union, specifically with regard to a separate Scottish parliament and new constitutional powers that would be achieved by a ‘Yes’ vote in 2014.
The rest of the United Kingdom
Sir Edward again questions the contention seemingly made by the President of the EU that an independent Scotland would have to apply to join yet England, Wales and Northern Ireland would continue their relationship as if nothing had happened.
Suggesting that the matter must be more closely examined, Sir Edward states EU law does not recognise the democratic right of the inhabitants of Scotland to dissolve their constitutional union with those of England, Wales and Northern Ireland other than at the cost of automatic loss of their acquired rights as citizens of the EU.
However, he highlights as significant that several member states of the current European Union utilised their right to self-determination ratified in international law prior to joining the European Union as an autonomous state.
Though other states have become sovereign prior to joining the European Union, Scotland would be the first instance of a member state going through the process of becoming a sovereign state while already under Union membership.
Sir Edward maintains that although legislation is unclear on this area, it should not be assumed that Scotland and its citizens would find themselves in some form of legal limbo vis-à-vis the rest of the EU and its citizens.
Scotland’s contribution to the European Union
Though discussion has focussed mainly on what Scotland would lose if it were to severe ties with the European Union, little time has been given to consider what the European Union would lose if it rejected a sovereign Scotland.
Sir Edward explains the logical consequence in law would be that the acquis communautaire would no longer, as such, be part of the law of Scotland. He explains:
“Scotland would cease to be constrained in relation to the rates of VAT and corporation tax.
“Erasmus students studying in Scotland would become “foreign students” liable to pay full third country fees, as would students from England, Wales and Northern Ireland.
“Non-Scottish fishermen would be excluded from Scottish waters. And all the waters between Scotland and Norway would cease to be within the jurisdiction of the EU – an important security consideration quite apart from fishery rights.”
Sir Edward’s final thoughts
Sir Edward has provided a sound legal context for Scots stuck between SNP assertions and those adamant that Scotland would have to apply for EU membership. In summary Sir Edward said:
“In short, in so far as we are entitled to look for legal certainty, all that is certain is that EU law would require all parties to negotiate in good faith and in a spirit of cooperation before separation took place. The results of such negotiation are hardly, if at all, a matter or law.”
Sir Edward’s stance that no legal precedent exists for an independent Scotland’s future relationship with the European Union calls into question both Holyrood and Westminster demands for a definitive legal position on matter.
It is helpful to gain such insight into the debate after the tribal turf war which has bogged voters down on the subject of Scotland's membership of the EU. There have been some very dogmatic positions taken which have been politically motivated and not based on reality.
Sir David Edward's contribution is therefore a very valuable addition to the debate. While the SNP leadership has argued that permanent EU membership would be automatic based on Scotland's specific constitutional relationship with England in the British Union, their Unionist opponents argued that Scotland would be automatically outside of the EU upon independence.
Both positions appear to be wrong. Negotiations will be necessary before Scotland can become a permanent member of the EU but it will be able to negotiate from inside. Some Nationalists have argued that as there is no established process for removing a member from the EU then Scotland would not have to negotiate entry. As there is no precedent for such a circumstance then it will be a political matter to be decided by the negotiating parties and could therefore mean that should an agreement not be reached, Scotland could be refused permanent entry.
As Sir David points out though, this would be highly unlikely. It is far more likely that Scots may elect not to become a full member of the EU and pressure will mount on the SNP government, in the event of a yes vote in the referendum, to hold a further referendum to determine whether Scots want to remain inside the EU at all.
Sir David's conclusions are in keeping with the perspective which Scottish Times has maintained. In international law if such circumstances arise whereby a member of an organisation divides into more than one separate entity then continued temporary membership of the organisation continues, with existing rights and obligations, until permanent membership is agreed or refused.
Another solution which is growing in popularity among the wider nationalist community is for Scotland to join the European Free Trade Association (Efta). If, for example, the roUK were to remain in the EU, and an independent Scotland were to join the Efta side of the 30-member European Economic Area (EEA), then nothing would change in economic relations between Scotland and the roUK and in relation to Europe. Both would still be in the EEA and parts of the same trading bloc. Scotland would, however, have the additional advantage of Efta's worldwide trading links, including free trade with the half of Europe that is not in the EU.
If Scots vote no in the referendum, then it is highly possible that Britain will withdraw from the EU after David Cameron's promised referendum. Whether Scots like it or not, under this scenario Scotland would be out of the EU. Scots would then be cut off from its European trading partners and locked into an austerity-riven UK.
It is not inconceivable though that should the UK withdraw from Europe it may also decide to join Efta in which case Scotland's existing economic relations with England and Europe would continue in their current form. There appears though to be no existing position among Unionist parties over whether the UK would wish to join Efta should it withdraw from full EU membership.
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The only real conclusion that David Edward comes to is that the whole issue of EU membership for Scotland is still vague and inconclusive. One point he seems to be making is that EU law ranks superior to conventional international law. Says the EU.
There are a whole lot of issues to be considered here, and not all of them by far can be decided on a specialised legal basis, by comparing proposals and decisions with the text of written legislation. There are issues of short-term tactics that can have serious repercussions for Scotland’s long-term future.
The present theatricals with regard to the modalities of acquiring EU membership fall into this category, whereas the discussion we ought to be having should be to find out whether there are convincing reasons why Scotland should join the EU at all, especially since there is a perfectly viable alternative with none of the EU’s drawbacks.
The SNP – or at least its leadership – have stubbornly maintained a deafening silence on this fundamental question, presumably because they have no answer to it.
There exists no doubt whatsoever that membership of the European Union would cripple Scotland’s long-term future by forcing Scotland into a Central European mould and inhibiting freedom of decision making on policies more attuned to its particular geoeconomic and geopolitical situation.
There is also no doubt that the EFTA/EEA solution is as good as tailor-made for Scotland. In this connection I commend the third-last paragraph of the editorial comments above, which hits the nail right on the head. Scotland would be mad to pass up this chance and waste its substance in the disintegrating European Union.
Sadly, one other issue arises out of the recent shambles. The SNP was not only unprepared for taking government office, although it has actually done an excellent job on domestic legislation. More ominously, however, it has demonstrated total ineptitude on issues that demand expertise and know-how on diplomacy and international relations. Its function is to bring about constitutional independence, not to dictate how Scotland will be governed thereafter. For the safety of all of us, it would be better to stick to what it knows – not to what it just thinks it knows – and leave the whole issue of the EU right out of the independence debate.