By Mark McNaught
The brutal back and forth between the Unionists and the Scottish Government over continued EU adhesion obscures one basic fact: there is no clear answer to Scottish accession to be found in the treaties. Another solution must be devised.
This has led to uninformed speculation about what would happen in the event of independence, and this uncertainty has been used as a spectre to dissuade Scots from voting ‘Yes’.
Not knowing what to expect, many Scots who would otherwise vote ‘Yes’ are concerned and hesitant. Unionists know this, and therefore have no will to resolve the issue.
The Electoral Commission report recommended that the Scottish and UK Governments clarify what a ‘Yes’ or ‘No’ vote would mean in practical terms. This implies a degree of cooperation that the UK has so far completely refused, exactly because it would help dispel this uncertainty.
It is therefore worth considering how Scotland could remain in the EU after a ‘Yes’ vote for independence.
The first important point is that if Scotland were to become independent, its government would no longer be signatory to the EU treaties, since it is the UK government that signed them. These treaties are instruments of international law: they were written, signed, and ratified by the states. The Scottish Government would not be a signatory. Member states are ‘masters of the treaty’.
That said, a ‘Yes’ vote in 2014 would not lead to immediate independence. The Scottish Government has made it clear that there would be a transition period before full independence, during which negotiations would take place between the UK and EU government over the terms of separation.
What is lacking is any clear indication from the European Commission that a ‘Yes’ vote would lead to negotiations on continued membership. However, it is not within the remit of the EC to do so. Changes in treaties must be approved by all member states, not the EC.
However, the practical implications of ejecting Scotland from the EU would be onerous for all involved. Imagine repatriating all Scots to Scotland who live throughout the EU, even though they are UK citizens. Non-UK EU citizens in Scotland would no longer be guaranteed the right to live and work there. Trade privileges would be revoked between Scotland and EU member states. Simply put, there is no way to eject Scotland from the EU without causing massive disruption, and violating EU treaties in the process. The EU has neither the means nor the inclination to actually follow through with this.
Scotland could negotiate a separate treaty and sign it, respecting all of the provisions. If, however, Scotland seeks to obtain the same opt-outs that the UK currently retains, including continuing to use the pound, this could get more complex. Treaties would be re-opened, and this could lead to other demands being made by other member-states. Given the hellish economic circumstances that parts of Europe are enduring, this could unravel the EU.
This leaves open the possibility that one member state could block accession of Scotland being signatory. Even assuming that the UK does not object, Spain may be less accommodating; they may be wary of setting a precedent for Catalan nationalists.
Renegotiating a new treaty with the EU could be hideously complex and not at all certain. However, actually ejecting Scotland from the EU and untangling the web of applicable treaties is also hideously complex and fraught with peril.
In the past, the EU has shown great flexibility with respect to membership, but this is not necessarily accomplished through treaty accession. East Germany was able to become a member overnight upon reunification, even though the GDR by no means fit the convergence criteria.
The unresolved crux of this issue is whether there is a means by which the UK membership in the EU could be ‘divided’, given that Scotland is already part of the EU through it. The UK and the Scottish Government are bound by the Edinburgh Agreement and to work together to amicably apply whatever decision Scots make in 2014. If Scotland gains independence, and the UK and the Scottish governments went to the EU and stated that they were dividing their membership into two, how could the EU object??
It would be unprecedented, but so was East Germany automatically becoming an EU member after unification. It would, however, be best for all parties involved.
An independent Scotland could stay within Europe. The UK would be free to withdraw if that is what it chooses. This would also facilitate Scotland keeping the pound for the time being, as well as maintaining military cooperation with the UK. Scotland could then opt-in to the provisions it wished from which the UK is currently exempt. The EU would not be obliged to reopen treaties.
A precedent would be set whereby other potential independent countries, like Catalonia or Flanders, could seamlessly remain members of the EU. This would strengthen the legitimacy of the EU: the Union would no longer be used to blackmail legal and legitimate independent movements. Everybody wins.
This process is uncertain and complex, but much less so than staying in the UK, given Cameron’s recent promise of a referendum.
This uncertainty must not deter Scots from seeking control over their own affairs. If too many barriers are erected to Scotland remaining part the EU, Scots must know that. They must then make their own decision as to whether EU membership is actually worthwhile, or whether they should seek a status similar to Norway's.
Only independence will afford Scots the autonomy to make that decision for themselves.
Mark McNaught is a member of the Constitutional Commission and an Associate Professor of US Civilisation at the University of Rennes 2 France. He also teaches US constitutional law at Sciences-Po Paris.