THE ECONOMIST (02-11-2012)

Many legal unknowns would follow Scottish independence FOR months, years even, Alex Salmond, Scotland’s first minister and leader of the Scottish National Party (SNP) had given assurances that if and when Scotland broke away from the rest of the United Kingdom it would still remain part of the European Union. Without such a guarantee he knew he would be unlikely ever to win sufficient backing to realise his dream of a sovereign country north of the English border. Asked in a BBC interview last March whether his government had sought its law officers’ advice on this vital issue, he replied, seemingly unequivocally: “We have, yes.” Now it appears that no such advice had ever been sought and, indeed, that there is nothing automatic or clear about an independent Scotland’s future relationship with the EU. Mr Salmond’s deputy, Nicola Sturgeon, let the cat out of the bag when she admitted on October 23rd that the government had only just sought “specific legal advice” from its law officers on the issue. Hitherto, it had simply been citing “opinions from a number of eminent legal authorities…in support of its view that an independent Scotland will continue in membership of the EU”. Hardly the same thing. Scottish MPs, including some SNP ones, erupted in angry disbelief. Mr Salmond, who insists that his reply to the BBC was truncated and therefore misinterpreted, has promised an investigation. But he has lost a lot of trust. No one knows for certain what the constitutional and legal implications of Scotland’s bid for independence will be—for Scotland or, indeed, the rest of the UK. The break-up of an existing EU member state is unprecedented. The EU’s charter and international law in general are silent on the matter. Unofficial legal opinions abound, but most are couched in such cautionary terms as “it is likely that” or “fairness and common sense dictate that”. Some suggest that the break-up would lead to the creation of two entirely new states, both of which would have to renegotiate their membership of international organisations. Others argue that, on the contrary, both Scotland and a British rump would become “successor states”, entitled to automatic continuing membership of all those bodies to which the UK currently belongs. But most believe that, after any divorce, the UK would continue to exist as before, with only Scotland as a new state. Precedent outside the EU seems to support this last view. When the Irish Free State (later Ireland) was set up in 1922, for example, no one doubted that the UK continued to exist. After the Soviet Union split up in 1991, few questioned the smaller Russian Federation’s claim to be its legitimate successor, along with its right to a permanent seat on the UN Security Council. Even the separation of Pakistan and India following independence in 1947 was regarded as creating only one new state (Pakistan). The same view was taken after Eritrea separated from Ethiopia in 1993, and when South Sudan split from Sudan in 2011. Only the dissolution of Czechoslovakia, leading to the creation of the two “successor” states of the Czech Republic and Slovakia in 1993, seems to point in the opposite direction. But that was an amicable divorce, agreed to by both sides. Among the factors generally used to determine whether a state, shorn of a territory, continues to exist are whether it has kept the seat of central government along with most of its territory, population, armed forces and resources. On that basis, the UK, with its 63m inhabitants, should have little to worry about if Scotland, with just 5m, does decide to leave. A referendum is to be held in Scotland before the end of 2014. But Scotland’s own position remains unclear. Given the political sensitivity of the issue at a time when other European regions, notably Spain’s Catalonia, are pressing for their own independence, the EU is loth to speculate about an independent Scotland’s position. The European Commission’s head, José Manuel Barroso, has said that a new state “has to apply…like any other state”, while Spain’s foreign minister insists that Scotland would have to “join the queue”, undergoing the same screening process and consensus vote by existing members as any other candidate—implying a possible Spanish veto. Though most constitutional lawyers agree that Scotland would have to apply afresh to join any international organisation—be it NATO, the UN or the EU—many believe that its candidacy would be fast-tracked by the European Commission, with a heavily EU-dependent Spain ultimately unlikely to oppose it. But the whole process could still take at least two to four years, albeit with possible transitional arrangements for essential matters like the free movement of people and goods. In the end, the political will of EU member states is likely to count for more than what the law does, or does not, say.