Posted on December 17 2012

In this post I have tried to set out my analysis of the position in European Union law if there is a vote in favour of Scottish independence in the 2014 referendum. I have been greatly helped by the comments of colleagues and friends, but the views expressed are my own.

The first part of the paper sets out what I believe to be the most relevant texts. I then set out my analysis of the problem.

“EU” = European Union

“TEU” = Treaty on European Union (“Lisbon Treaty”)

“ECJ”= European Court of Justice (the “Luxembourg Court”)

A. Some relevant texts:

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."

Judgment of the ECJ in Van Gend en Loos (1963):

"To ascertain whether the provisions of an international Treaty extend so far in their effects, it is necessary to consider the spirit, the general scheme and the wording of those provisions.

The community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals. Independently of the legislation of member states, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the community."

TEU, Article 2

"The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail."

TEU, Article 4

"2. 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, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives."

TEU, Article 6

"1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

…

3. Fundamental rights, as guaranteed by the European Union Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law."

Charter of Fundamental Rights of the European Union, Article 45

"1. Every citizen of the Union has the right to move and reside freely within the territory of the Member States."

Judgment of the ECJ in Grzelczyk (2001)

"31. Union citizenship is destined to be the fundamental status of nationals of the Member States, enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality, subject to such exceptions as are expressly provided for."

TEU, Article 50

"1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period."

B. Analysis

1. The EU is certainly a creature of public international law, but the Treaties create a “new legal order of international law” which differs from conventional international law in that its subjects are not only the Member States, but also their nationals (now also citizens).

2. The relationship between the United Kingdom, the EU institutions and the other Member States is governed by the Treaties. 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. Only if the Treaties can provide no answer would one resort to conventional public international law (including doctrines of state succession).

3. 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 years after notification – but certainly not immediately.

4. This is relevant to the present issue, not because this would be a case of withdrawal to which Article 50 TEU would apply directly, but because it is evidence of the spirit and general scheme of the Treaty, which must be taken into account in dealing with a situation with which the Treaty does not deal expressly.

5. The reason why Article 50 requires a period of negotiation is that withdrawal from the Union would involve the unraveling of a highly complex skein of budgetary, legal, political, financial, commercial and personal relationships, liabilities and obligations.

6. These relationships, liabilities and obligations are multilateral and, in general, reciprocal. The Scots have acquired rights of citizenship and free movement of goods, persons, services and capital vis-à-vis the rest of the EU. But so too have the nationals of other Member States vis-à-vis Scotland, its territory, its institutions and its people. They include (to take only four examples) investors in the corporate sector, hundreds of Erasmus and other students, thousands of migrant workers, and fishermen from other Member States operating in Scottish waters (the largest sea area of the EU whatever the basis of measurement).

7. It is contended, most recently by the President of the EU Commission, that an independent Scotland, as a new State, would be outside the EU and would have to apply to join – presumably, though this is not made clear, through a new Accession Treaty. Meanwhile (presumably, though it is not stated) England, Wales and Northern Ireland (“RoUK”) would continue their relationship with the rest of the EU as if nothing had happened.

8. We need to examine more closely the assumptions on which this scenario is based.

9. First, at the level of principle, it seems to be assumed that, contrary to the principles asserted in Articles 2 and 4 TEU (as well as the Preamble of the Treaty), 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.

10. In that connection, it should be remembered that many of the Member States (and aspirant States) of Central and Eastern Europe owe their separate existence and their autonomous membership of the EU to exercise of the right of self-determination recognised in international law.

11. Second, it seems to be assumed that - at the moment of separation (or on some other unspecified date - Scotland, its citizens and its land and sea area would find themselves in some form of legal limbo vis-à-vis the rest of the EU and its citizens, unless and until a new Accession Treaty were negotiated.

12. Until the moment of separation, 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. Then, at the midnight hour, all these relationships would come abruptly to an end.

13. The logical consequence in law would be that the acquis communautaire would no longer, as such, be part of the law of Scotland. 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.

14. Third – apparently – there would be no legal obligation upon the UK, the EU or the other Member States to enter into any negotiations before separation took effect in order to avoid such a situation coming to pass.

15. The contrary contention is that Scotland is already part of the EU and that, in the event of independence, there would be a seamless transition from membership as part of the UK to membership as an independent State subject to agreement on a few details.

16. In my opinion, neither contention is correct. There would be no automaticity of result in either direction. Since the situation would be unprecedented, and there is no express provision in the Treaties to deal with it, one must look to the spirit and general scheme of the Treaties.

17. For present purposes, I assume that:

a vote in favour of independence for Scotland would result (at some future date) in the existence of two States – Scotland and RoUK (assuming that England, Wales and Northern Ireland would be content to remain united); separation would take place by consent and in a manner consistent with the constitutional traditions of the United Kingdom; both Scotland and RoUK would wish to remain integral parts of the EU.

18. I express no opinion as to whether either Scotland or RoUK or both would be “successor States” in conventional international law. That question might be relevant in relation to other treaty relationships but not within the legal order of the EU (nor incidentally, in my opinion, those of the Council of Europe and the European Convention on Human Rights).

19. On those assumptions, my opinion is that, in accordance with their obligations of good faith, sincere cooperation and solidarity, 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.

20. The outcome of such negotiations, unless they failed utterly, would be agreed amendment of the existing Treaties, not a new Accession Treaty. The simplified revision procedure provided by Article 48 TEU would not apply, so ratification of the amended Treaties would be necessary.

21. Looking to the presumed intention of the Treaty-makers, I do not believe they can reasonably have intended that there must be prior negotiation in the case of withdrawal but none in the case of separation. They cannot have intended the paradoxical legal consequences of automatic exclusion suggested above (paragraphs 11-13) nor, at a more practical level, that the complex skein of relationships, liabilities and obligations created by EU law should be allowed to unravel without measures being taken to prevent it.

22. The length and complexity of the negotiation and ratification process cannot be predicted in advance. In part, it would depend on the goodwill of those involved. In part, it would depend on the extent to which issues were raised beyond those strictly necessary to regulate the future legal relationship of Scotland, RoUK, the EU institutions and the other Member States.

23. It would, of course, be necessary to decide how and by whom negotiations would be conducted. Formally speaking, until the moment of separation, the UK as existing would be the Member State on which the obligation to negotiate would fall, and with which the EU institutions and the other Member States would expect to negotiate. How this would be handled as between the constituent parts of the UK would itself be a matter for negotiation – equally in a spirit of good faith, sincere cooperation and respect for the concerns of other Member States.

24. 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 of law.

Sir David Edward, KCMG, QC, PC, FRSE, was the British Judge of the European Court of First Instance from 1989 to 1992, and of the European Court of Justice from 1992 to 2004. He is a 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.