By Martin Kelly
A leading international lawyer has warned that the Westminster government’s claims on Scotland’s status post independence, risks creating a rift between the two nations that could last “for generations”.
Professor David Scheffer has said that claims by London Ministers and Officials that a newly independent Scotland would inherit none of the current UK treaty obligations and benefits, risked “triggering slash and burn consequences that surely would deepen the rift between Scotland and the rUK for generations”
Professor Scheffer has accused Westminster of building the claims on a “pyramid of presumptions” that are resting “on very thin ice” after Whitehall published an analysis that effectively claimed that Scotland no longer existed and independence would mean having to re-negotiate 14,000 international treaties.
The academic also suggested claims made by UK Ministers' were designed to make the legal implications of independence appear so "burdensome and traumatic" for Scotland and its people that "voters will decide it is not worth the effort and vote 'no' on the independence referendum".
The intervention of the academic who is director of the Centre for International Human Rights at Northwestern University School of Law in Chicago, follows publication by Whitehall of a legal advice document that described Scotland as having been “extinguished” by the 1707 Act of Union.
Unveiled by Scottish Secretary of State Michael Moore, the document concluded that the remainder of the UK would inherit all of the current international obligations and rights and that Scotland would effectively start afresh. According to the report’s authors, there was an "expectation" that a newly independent Scottish state would take on a share of the UK debt.
However this has been challenged by Professor Scheffer, who argued that the Whitehall report offered no basis suggesting such an obligation could be established.
He said: "The Whitehall report's bold presumption that national liabilities would have to be negotiated and thus shared between Scotland and the remainder of the UK under the continuator theory rests on very thin ice. On what legal basis would Scotland be obligated to assume any significant level of United Kingdom liabilities if the rUK is the continuator state? The Whitehall opinion offers no basis for establishing an obligation to share financial liabilities."
Professor Scheffer also questioned the claim that Scotland ceased to exist after the Act of Union.
"No one doubts that Scottish sovereignty existed more than three centuries ago, whereas in almost all other self-determination movements the clarity of former sovereignty has been absent. Two sovereign nations entered into the Treaty of Union of 1707.
"That treaty united two countries into ‘One Kingdom by the Name of Great Britain,’ but the Whitehall report opines that ‘…Scotland certainly was extinguished as a matter of international law, by merger either into an enlarged and renamed England or into an entirely new state.’"
He added: "Some would strongly disagree with this conclusion and argue that the Scottish people retained their right of self-determination within a distinct part of Great Britain that continued with an autonomous national character (particularly in law, culture, and religion)."
The academic pointed to the 1978 Vienna Convention on Succession of States in Respect of Treaties, insisting that it favoured Scotland in “creating a more balanced approach to the transition” but that this had simply been dismissed by Whitehall as not binding on the United Kingdom.
Questioning Westminster’s current stance, which he described as “politically destructive” he added: “A constructive way to approach the transition to independence following an affirmative vote on the referendum would be to adopt a plan whereby two co-equal successor states mutually agree to approve or acquiesce in continued membership for both states in international and regional organizations and approve or acquiesce in relevant treaty relations.
“That would be an amicably negotiated basis for transition that is credible under international law and respectful of the rights of the citizens of both Scotland and the rUK. It would avoid a “clean slate” approach for Scotland triggering slash and burn consequences that surely would deepen the rift between Scotland and the rUK for generations.”
Professor Scheffer said concerns over the UK’s current seat on the security council and other key organisations could be addressed by adopting more conciliatory approach.
"Whitehall could seek Scotland’s acquiescence to the continuation of the rUK’s status in the Security Council and other key organizations and treaty arrangements. The Scottish acquiescence would be far more convincing to other governments than for the rUK to advance the continuator theory and hope for the best,"
He added: "Other governments likely will be drawn to a cooperative methodology for transition, rather than one grounded in isolating Scotland while rewarding the rUK.
“In return for Scotland’s acquiescence, the rUK would be expected to readily endorse a smooth transition for Scotland’s membership in, among other entities, the United Nations, NATO, World Bank, International Monetary Fund, and the European Union. As it stands, the Whitehall report seeks to create the most difficult pathway when in fact there is a much easier one to take if only London were willing to help pave it."
Dealing with the issue of EU membership, Professor Scheffer said the Whitehall was “at its weakest” when dealing with the EU citizenship of Scots.
"The better alternative would be endorsing a negotiated co-equal successor state status in the negotiations. There is a sound basis in international law for it. If the talks are approached in that spirit, the stage would be set for far more productive and efficient grants of approval and acquiescence to facilitate treaty relations and membership in organizations of an independent Scotland."
He also claimed that the issue of the substantial level of UK debt presented a newly independent Scotland with a negotiating advantage.
"Scotland’s leverage nonetheless would lie in agreeing to negotiate the sharing of national liabilities if the rUK sets aside the continuator theory as the basis for legal implications and agrees to negotiate in good faith with the commitment to approve and acquiesce where necessary to facilitate Scotland’s engagement with the international community."