In an intervention that could in time-worn political terms be described as “brave”, the Secretary of State for Scotland insisted yesterday that recent legal advice to the UK government means an independent Scotland would not inherit the UK’s existing international treaties but would still nonetheless inherit a share of the UK national debt.
The UK Government’s understanding of new legal analysis on the implications of Scottish independence is in their view proof that the most likely outcome of Scottish independence would be the continuation of the UK as the existing state under international law and the creation of a new state of Scotland.
However, the report’s authors declined to rule out the creation of two completely new states or the resurrection of the Scottish state that existed prior to 1707 – although both outcomes were deemed unlikely by Westminster. But just in case anyone wasn’t yet adequately confused, the report’s authors went on to say this (our emphasis):
“Assuming that Scotland would be recognised as a new state, albeit a successor state to the UK, it is difficult to see how Scotland could evade the accession process for new states in the EU treaties.”
So this new “definitive” legal advice doesn’t in fact rule out any of the only three options available, and in fact defines Scotland as both a “new” and a “successor” state, seemingly contradictorily. But what does all this mean? To try to shed some light, let’s look at what international law says on the subject of borders, treaties and debts.
Subject to any contrary agreement of the states involved, succession to treaty rights and obligations upon a change in territorial sovereignty is governed by the 1978 Vienna Convention on the Succession of States in Respect of Treaties. The principle of Uti possidetis juris mandates the obligation to respect pre-existing international borders in succession cases.
In the 1990s the Uti possidetis juris principle was extended beyond de-colonisation situations to include the creation of new states as a result of the breakup of the Soviet Union and the former Yugoslavia and Czechoslovakia. In all these cases it was agreed to continue the boundaries of the previous constituent parts of the state, transforming these internal borders into international frontiers.
This was reinforced by the European Community Arbitration Commission of the Conference of Yugoslavia in an opinion which stressed the need to respect the territorial status quo according to the principle, whereby “whatever the circumstances, even the right to self-determination must not involve changes to existing frontiers at the time of independence”.
From a Scottish perspective this is quite clear – the boundaries that mark where Scotland’s borders are within the Union are to be the new international frontiers after independence, and cannot be altered (by for instance partitioning off part of Scotland) by any state involved.
When a new state is created the “clean slate” principle is applied, whereby the newly created state need not succeed to the treaties of its predecessor, and would not inherit any of the obligations, rights or debts of that parent state upon independence.
The Vienna Convention is specific on the issue of succession in the case of secession by making a distinction between “newly independent states” - that is, successor states where “the territory of which immediately before the date of the succession of states was a dependent territory for the international relations of which the predecessor state was responsible” – and states separated in a non-colonial context.
The “clean slate” principle is simple: that a new state ought not to be bound to treaty obligations which it has not expressly agreed to assume after it has gained statehood. In a colonial context it was deemed that those states should not have their authority or their territory or both burdened with debts, concessions, commercial engagements of various kinds or other obligations continuing on from the earlier colonial regime. The “clean slate” country will have no obligation to take on board any debt in such a situation unless it voluntarily accepts to do so.
Under the convention the “clean slate” principle only applies to colonies, whereas successor states in a non-colonial situation must normally follow the principle of the continuity of treaties, being bound by the treaties of their predecessor states.
So which is Scotland? A new state or a successor? It cannot be both, so if classed as a new state would not be bound by the treaty obligations or debt of the predecessor state – a situation that would see all of Scotland’s fixed and natural assets remain with the newly independent country but no current moveable assets (eg military equipment) or liabilities (debt) either.
This could prove quite a boost for the Scottish economy, in that it would wipe out all of Scotland’s share of the UK national debt (which according to GERS costs Scotland £3.7 billion in interest payments alone per year), while retaining a large asset base in the form of oil and gas revenues, as a basis for borrowing money on the international markets in order to replace the assets lost during the split from the UK. However the report’s authors also say that:
“There would be an expectation that an independent Scottish state would take on an equitable share of the UK’s national debt. How an ‘equitable share’ would be calculated is open to question and would have to be negotiated.”
To argue (as the UK Government is in effect doing by insisting that we would be a new state) that Scotland is a colony of the UK, and yet simultaneously to be asking it to voluntarily take on part of the UK’s debt when we leave seems, well, rather optimistic.
The report also claims that it’s “at best inconclusive” as to whether Scotland would remain a member of existing international organisations such as the United Nations, the International Monetary Fund and the EU. But as one of the report’s authors noted:
“EU membership will come as a matter of negotiation and UN membership will be straightforward. But in the case of the EU there are things to negotiate such as the British opt-out and financial contributions, as those aren’t automatic. There are things to negotiate and I’m not suggesting that this process is going to necessarily be very difficult.”
Whether a successor state becomes a member of an international organisation by virtue of the predecessor state’s membership, or if it must apply for admission as a new member, is an issue that the Vienna Convention leaves that up to the decision of the international body involved. In the case of the UN every state – except Russia on the breakup of the USSR – has had to reapply for entry, with Russia retaining its hold on the coveted permanent seat on the UN Security Council as a result.
So why would the UK deliberately undermine the long-held view that the UK is a political union of different countries? The answer may be seen in a passage from the report stating that “Since the rUK (remainder of the UK) would be the same state as the UK, its EU membership would continue”, and that after independence, representatives of the UK Government would enter negotiations on the terms of independence “as representatives of the continuing state of the UK“.
From these two snippets it appears that the repositioning of the Act of Union as merely an enlargement of England is an attempt to retain sole-successor status in the same manner as Russia after the collapse of the Soviet Union. The Westminster government is so desperate to keep hold of the permanent Security Council seat that they’re willing to undermine the constitutional arrangements of the UK in order to ensure they keep it in the event of a Yes vote.
Where does this leave Scotland? If we vote Yes and Westminster succeeds in having us declared a new state then according to existing precedents we will have no debt and a lot of negotiation to do. But if we vote No then we may signal acceptance of our newly-identified status as part of “Greater England” in the eyes of the world.
Voting No has just become far more serious than merely being stuck with the status quo – it now represents a serious threat to the very existence of a Scottish identity.