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Wings Over Scotland


The clean slate

Posted on February 11, 2013 by

The devil, they say, is in the detail, and that certainly seems to apply to the UK Government’s first paper on the consequences of Scottish independence. With remarkably little fanfare, the coalition appears to have dropped an atomic bomb into the heart of the constitutional debate, and not even realised it.

startanew

The core premise of the document appears to be the counter-intuitive idea that the UK can have it both ways – it can insist that an independent Scotland would be a brand-new nation with no rights to any of the shared property of the UK, but that it would somehow simultaneously be responsible for its full share of the UK’s liabilities. Michael Moore is quoted saying precisely that in today’s Herald.

The justification for this outwardly-absurd claim rests on an astonishing assertion lurking unassumingly in a series of paragraphs in the middle of the paper. We’ve copied it below and highlighted a couple of the relevant phrases.

34.      One view is that the union created a new state, Great Britain, into which the international identities of Scotland and England merged and which was distinct from both. Lord McNair writes: ‘England and Scotland ceased to exist as international persons and become the unitary State of Great Britain.’ This view has been relied on in UK courts: MacCormick v Lord Advocate.

35.      An alternative view is that as a matter of international law England continued, albeit under a new name and regardless of the position in domestic law, and was simply enlarged to incorporate Scotland. In support of this view, among other things:

3 5 .1      Scottish members joined Parliament at Westminster, but there was no new election of its English members. This was in accordance with the Acts of Union Article XXII.

35.2      Treaties concluded by England appear to have survived to bind Great Britain. Parry and Hopkins cite the Treaty of Alliance with Portugal as the oldest ‘British’ treaty, and it is generally accepted as being such, even though it was concluded by England. They suggest that no treaty between Scotland and a third state survives (though Scotland concluded treaties, for example with France, the Pope and Scandinavian states).

35.3      England’s diplomatic representation in the rest of Europe continued uninterrupted. The Acts of Union Article XXIV appears to acknowledge this in retaining the Great Seal of England for transitional purposes.

36.      We note that the incorporation of Wales under laws culminating in the Laws in Wales Act 1536 (England) and of Ireland, previously a colony, under the Union with Ireland Act 1801 (GB) and the Act of Union 1800 (Ireland) did not affect state continuity. Despite its similarity to the union of 1707, Scottish and English writers unite in seeing the incorporation of Ireland not as the creation of a new state but as an accretion without any consequences in international law.

3 7.      For the purpose of this advice, it is not necessary to decide between these two views of the union of 1707. Whether or not England was also extinguished by the union, 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.

38.      It is therefore misleading to speak of Scotland (or similarly of England, Wales, Northern Ireland or the isle of Great Britain) as if it were an entity already possessing international personality in its own right or some other relevant international status, regardless of what status it may have as a matter of UK domestic law.

39.      It may also be misleading to speak of dissolving the ‘union’ effected by the incorporation of those territories: whatever the position historically or politically or in domestic law, in international law the position of the UK does not necessarily differ from that of a state formed in some way other than by a ‘union’.

Take a moment to digest that, readers. The 488 words quoted above make a stark and startling statement in the name of the UK Government: whichever way you interpret the legalities of the Union, Scotland does not exist. That’s going to come as a bit of a shock to all the Unionists who’ve spent the last 18 months insisting that they’re “proud, patriotic Scots” with two nationalities. Exactly as this site suggested last October, “the UK” is indeed one nation, and that nation is England.

(“Patriotic” is defined by the Oxford English Dictionary as “having or expressing devotion to and vigorous support for one’s country”. But if the nation of Scotland was “extinguished” by the Union, as the UK Government has just told us it was, then it’s simply not possible for there to be any such thing as a “patriotic Scot”, because the term is an oxymoron – according to the document the only “country” any UK citizen can legitimately belong to, and therefore vigorously support, is either the United Kingdom or England, depending on your view.)

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Michael Moore’s comments appear to indicate that the full import of these words simply hasn’t yet dawned on the UK Government. If an independent Scotland would be a brand-new nation, entitled to none of the communal fruits of 300 years of union with England, then it quite plainly could also not be responsible for any of the liabilities of the UK. Babies are not born into debt.

The document says that this new nation’s negotiations over membership of various European bodies would nevertheless be “straightforward”, so there’s nothing to worry about there. But what would be the other implications of a clean break and fresh start?

Scotland would obviously lose its share in British institutions like the Bank of England. But as we’re constantly told that we’d have no influence over its monetary policy in a currency union anyway, it’s hard to see the loss there. Most governmental assets are buildings, and those would have to stay where they stood. We’d lose the right to a share of movable military hardware, but that’s about it.

So an independent New Scotland would have to buy a few frigates and helicopters to get its armed forces up and running. But that’s about it, and in return it would be freed of its share of the UK’s enormous debt burden. Currently projected to stand at around £1.5 trillion by the time the process of independence would be concluded, that means Scotland would be walking away from a crushing per-capita-share millstone of £126 billion, and around £4bn a year in repayments.

That’s the sort of windfall which would revolutionise the budget of the new nation. It would secure universal benefits for decades to come, AND provide enough flexibility to cover fluctuations in the price of oil, while allowing the building of a Norwegian-style sovereign wealth fund in good years. As a debt-free nation with a huge resource backing it up, Scotland’s credit rating would be stratospheric.

If this is the deal the UK Government has just unwittingly offered, we suggest the Scottish Government besieges Whitehall right now, battering down the doors and demanding to know where to sign.

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    Who You Gonna Call In An Independent Scotland? | National Collective

234 to “The clean slate”

  1. Craig Evans says:

    Jeeze, ye canna mak this stuff up!

      

  2. Sunshine on Crieff says:

    Wings Over Scotland said:

    “So an independent New Scotland would have to buy a few frigates and helicopters to get its armed forces up and running. But that’s about it, and in return it would be freed of its share of the UK’s enormous debt burden. Projected to stand at around £1.5 trillion by the time the process of independence was concluded, that means Scotland would be walking away from a crushing millstone of £126 billion, and around £4bn a year in repayments.

    That’s the sort of windfall which would revolutionise the budget of the new nation. It would secure universal benefits for decades to come, AND provide enough flexibility to cover fluctuations in the price of oil, while allowing the building of a Norwegian-style sovereign wealth fund in good years. As a debt-free nation with a huge resource backing it up, Scotland’s credit rating would be stratospheric.”
     
    Wow! I feel as though I’ve just won the lottery!!!

      

  3. TheGreatBaldo says:

    I guess this means everything I was taught in school about the Act of Union was a partbership was nonsense then…
    Turns out it wasn’t a partnership more a take over and expansion…..it’s come as a little bit of a shock to discover that under International Law I am in fact and always have been English….
    I only hope nobody at FIFA reads this as England currently has 4 teams trying and (mostly failing) to qualify for the World Cup ! 
     

      

  4. R Louis says:

    This, as Rev Stu points out, is truly momentous.  Here in black and white, is confirmation, that according to Westminster, Scotland ceased to exist following the union – yet England continued on as a ‘greater’ England.  Do London realise yet quite what they have said???
     
    Geez, if London wishes to add constructively to the debate, in order to win, it is really going to have to get to grips with what they are saying.  I can only assume lots of civil servants have spent months preparing this nonsense, all of course based upon their ‘home counties’ view of the world, and especially Scotland.  I can only assume that not one of them could see anything at all untoward with this document.  Utterly utterly out of touch.
     
    David Cameron doesn’t get it, and Westminster really doesn’t get it.  Later today, there will be much head scratching going on in the corridors of Westmidden, as the bullingdon boys try to understand just what they have done.
     
    This is an absolute gift to the YES campaign.  It truly beggars belief.

      

  5. AnneDon says:

    Yee-hah! As Jess would say in Toy Story 2.

    So, we have no debts, no treaty responsibilities, and a 200 mile exclusive fishing zone? And we can throw all those foreign landowners out of the country and give the land to the communities who live on it?

    Thanks, Westminster. After 300 years, you finally do something good for Scotland!

    PS, You’re not divvying up the Empire on your own terms any more, so you won’t dictate anything! International law will apply      

      

  6. AnneDon says:

    @ R Louis – you’re assuming it will be accurately reported by the mainstream media – I’m not entirely sure of that!

      

  7. Rev. Stuart Campbell says:

    “you’re assuming it will be accurately reported by the mainstream media – I’m not entirely sure of that!”

    If whoever is representing the No camp on tonight’s Newsnicht and ScotNight doesn’t get nailed to the wall over this one, all pretence of an impartial media is officially over.

      

  8. R Louis says:

    Just for clarity, here is what the Lord President stated in McCormick Vs. Lord Advocate (1953) -
    1.  The Lord President stated:    ‘The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.’
     
    2.  The Lord president also stated:   ‘I have not found in the Union legislation any provision that the Parliament of Great Britain should be “absolutely sovereign” in the sense that that Parliament should be free to alter the Treaty at will.’
    something which seems to have bypassed the daft authors of the nonsense coming from London.  They forget the treaty is a treaty in international law (NOT English law), and that up here in Scotland we have Scots law.
     
    Love to see what Lallands peat worrier thinks…

      

  9. Gaavster says:

    And on cue, here’s the ‘message’ from the dark side…..
    Can you feel the ‘positivity’ oozing through every sentence?
    “Dear Gavin,
    Finally we have left behind issues of process in the Independence debate and we are getting into the issues that really matter.
    Today the UK Government have released their legal advice on what separation would mean for Scotland’s EU membership. However, we are still denied the facts we need by the Scottish Government.  Click here to demand Scottish Ministers release their legal advice.
    Scots have so many questions about what separating from the UK would mean. What would our place in the world be? What currency would we use? How would our jobs and mortgages be effected?
    We are determined to give you answers. We think you need all the facts before you make the most important decision in our history.
    You will see in the news that the UK Government have taken the unusual step of publishing normally-confidential legal advice. These independent lawyers give their expert view on Scotland’s place in the world if we decided to go it alone. They argue that Scotland would have to start from scratch in negotiating our place in the World: we would need to reapply to join the EU, would lose our membership of important alliances like NATO, and lose our place on the UN Security Council.
    The lawyers are telling us that if leaving the UK is like splitting up a marriage then the rest of the UK gets to keep the house.
    The nationalists won’t give us the most basic facts. Today the nationalists published an economic document that leaves us with more questions than answers. Their own expert group says some things which are common sense:

    A separate Scotland couldn’t just decide to keep the pound, we would need to ask the rest of the UK before we could share a currency with what would then be a foreign country.
    There would not be lots of cash to throw around in an Independent Scotland. The money from Oil is already spent on public services in Scotland – we currently receive around £1200 more per person than the UK average.
    Scotland would inherit our share of the UK’s debt of over one thousand billion pounds.

    What the report doesn’t tell us is what Scottish Ministers plan to do.
    What if the rest of the UK, having seen the mess of the Euro, say that they don’t think sharing a currency is a good idea? What is plan B? Would we adopt the Euro or set up a separate Scottish currency?
    Given the budget will be tight, how will Scottish Ministers pay for the things they have promised us without raising our taxes? How can they promise higher benefits, cuts to big business like Amazon and Starbucks while also saying they won’t increase tax on North Sea Oil?
    After months of false statements, cover-ups and flip-flops on their own legal advice the nationalists still refuse to show us what their own lawyers have told them on Scotland’s place in the World.
    Sign our petition to help force the Scottish Government to come clean with the facts on a separate Scotland.
    Blair
    Blair McDougallCampaign Director
    Better Together “

      

  10. R Louis says:

    Oh dear, Blair MacDougall, what utter tosh.  It doesn’t even pretend to make sense.
     
    Bitter, so very very bitter together.

      

  11. R Louis says:

    Does this mean the Scotland rugby squad will need to change to the England kit, and the fans for Scotland sing ‘swing low sweet chariot’, instead of ‘flower of Scotland’???
     
    We really need to know, now we are officially just a wee part of ‘greater England’.

      

  12. BeamMeUpScotty says:

    I think they are probably arguing from the view that since Scotland as a country does not exist then it’s maritime and terrestrial boundaries are non existent and will therefor be a subject of negotiation between London and Edinburgh post referendum.I.E. it’s London’s oil and we will decide what share you can have.
     
     

      

  13. Melissa Murray says:

    Since Scotland doesn’t exist, am I currently living in a pretend capital city of a make believe nation?

      

  14. The Man in the Jar says:

    @AnneDon
    I am just back from the shops where I took a quick look at the headlines on today’s papers. It’s all “Massive blow to the independence campaign” The usual s***e

      

  15. kininvie says:

    Before you get too carried away, it’s worth remarking that the document deals only with Scotland’s status as International law might interpret it. Effectively, it says that Scotland cannot rely on its pre-1707 status, nor on the Act(s) of Union to claim that it already exists as a legal entity (and hence has rights under international law). In turn, this implies that any indpendence settlement is a domestic matter – to be settled outside the remit of international law.
    The consequences are not necessarily benign. Consider a changed maritime boundary which took in many oil & gas fields. Consider the possibility of an rUK enclave at Faslane. If rUK demanded these as part of an independence settlement (not saying they would, just that they could) Scotland would have no fall-back in international law to which to appeal.
    No, no. It’s far from being the free gift you seem to think. It’s a poisonous trap.

      

  16. Gaavster says:

    Sorry about the formatting… and the content!!
    Did a quick cut n paste job from my e-mail and was trying to tidy up, but someone else posted and I was cut short in my prime…. :/

      

  17. R Louis says:

    So to be clear, Westmidden have just said, that Scotland upon independence will in fact be a new country, and therefore be born free of any debts of the ‘old’ place called Scotland.
     
    This is starting to sound a bit like Rangers….
     
    This is excellent news.  declare independence, and wipe out the debt. Bye Bye London.

      

  18. R Louis says:

    Kininvie,
     
    Yes, but it is patent nonsense.  That is why it is so funny.

      

  19. FreddieThreepwood says:

    @Rev Stu
    If whoever is representing the No camp on tonight’s Newsnicht and ScotNight doesn’t get nailed to the wall over this one, all pretence of an impartial media is officially over …

    And any confidence we have the SNP/Yes Campaign to step up to the plate. Please – PLEASE don’t put an ill-prepared lightweight on. Get the big guns out for fuck’s sake! This is a story that needs turning around – the No/MSM alliance have a supertanker steaming away in one direction and it’s going to take more than a polite cough and some inconvenient facts to move it off course.

      

  20. Rev. Stuart Campbell says:

    “No, no. It’s far from being the free gift you seem to think. It’s a poisonous trap.”

    Well, it’s neither, because it can’t possibly have been the intended point of the document. It’s such an utterly ludicrous assertion that the only possible explanations are a gigantic, idiotic error (my favoured choice) or part of the “Tories are trying to lose the referendum” conspiracy theory.

    Whether it’s a “national” one or not, there is an existing and undisputed border between Scotland and England, which will dictate the terms of maritime borders, because whether Scotland is a nation now or not it will certainly BECOME one if and when it votes for independence, at which point international law will apply.

    Always remember, when it comes to negotiations we have the nuclear Joker.

      

  21. turnbull drier says:

    Hang on.. does this mean, after a YES vote we will be a “Newco”…
    Arguments about history, previous victories, payments and liabilities will abound :P

      

  22. R Louis says:

    Beam me up Scotty,
     
    Maritime boundaries, are determined by international law, and not domestic law.  The principles already exist, as regards the Scottish continental shelf, and the oil fields, and anybody from the anti independence campaign arguing that London can decide, is just silly.
     
    Scotland will be entitled to around 85% to 92% of the oil reserves by virtue of their geographical location.  It isn’t up to London OR Scotland.

      

  23. Bill C says:

    Whoa, hold the bus here. Are you guys really telling me that after 58 years and so many days on this planet thinking I was born a Scot that I am in fact English?  Do not get me wrong, I have absolutly nothing against the English, some of my best friends are English (really) it’s just a bit of a shock to the system that’s all.  My wife has always said I was a bit of a Morris Dancer (chancer).

      

  24. muttley79 says:

    @R Louis
     
    David Cameron doesn’t get it, and Westminster really doesn’t get it.  Later today, there will be much head scratching going on in the corridors of Westmidden, as the bullingdon boys try to understand just what they have done.
     
    What about the theory that they know exactly what they are doing?  Moore was on Politics Scotland on BBC yesterday, and was saying that Scotland has 2 governments.  Surely this document invalidates that?  It looks like Scottish skier ‘s theory has received another boost.     
     
    @Rev Stu
     
    I think it will be confirmed that they (Newsnight, STV) will ignore the implications of your article.  There is no way we will get proper scrutiny of the No campaign from the MSM.  If this did happen the media know that Yes will win, and they are totally against this. 
     
    On the substance though, this means that all the unionists justifications for the union were bullshit.  The whole ‘we were allowed to keep important institutions’ patter.  Does this official document by the Brit Govt mean that unionists have essentially been lying to the people of Scotland for the last 300 + years?  So we really were North Britain after all.  

      

  25. Rev. Stuart Campbell says:

    turnbull: I’m stealing that one :D

    The implications are clear, of course – we’ll be in International SFL 3 rather than the Security Council Premier League (fine by me), we’ll lose a few “star players” (don’t let the door hit you on the arse on the way out, Michelle Mone), we’ll apparently still have all our history, and we’ll be debt-free and able to instantly raise many millions secured on the huge assets we somehow got our hands on for a handful of beans.

      

  26. heraldnomore says:

    Shit, that means Emily Maitles was right all along; that everything we hear from the beloved state-funded broadcaster has been based on fact and not our assumption of attitude.  Education must be better there after all.  Suddenly I see it all in a fresh light.  But I’ll still vote Yes.

    Anyone know the words to Jerusalem,or the steps to the latest Morris Dance?

      

  27. R Louis says:

    Excellent, related piece on SNP website, especially the transcript of the Gary Robertson (BBC) interview further down.
     
    http://www.snp.org/blog/post/2013/feb/legal-opinion-own-goal-uk-government
     
    Effectively, the Westminster report backs up exactly what the Scottish Government have said all along on the EU.  No surprises there then.

      

  28. Tris says:

    Does this mean I’m English?

      

  29. R Louis says:

    Tris,
     
    Probably.

      

  30. pa_broon74 says:

    The notion that Scotland hasn’t existed for 300 years and by extension we’re actually all English, in terms of votes for the Yes campaign I think its way more valuable than us being able to leave the debt behind.

    With the best will in the world, I don’t think I know anyone who’d agree they were English, that isn’t an anti-English statement its just fact.

    However, I’ll take both things and run.

    When Nicola Sturgeon said it was breath taking arrogance, she wasn’t wrong. They can’t even brush it under the carpet on a technicality, its there in black and white.

    Maybe they’ll ‘McCrone’ it instead… 

      

  31. kininvie says:

    Rev
    Always remember, when it comes to negotiations we have the nuclear Joker.
    I refer you to para 96.2, where the possibility of an rUK ‘enclave’ at Faslane is specifically mentioned.
     
    This document is not nonsense. It is not a joke. It is a clear piece of advice (and is probably correct) that in the eyes of International law, Scotland has no LEGAL existence. It has a clear purpose, which is to ensure that Scotland has no legal right to anything at all, and that anything that is granted to it as part of an independence settlement is at the discretion of rUK.
     
    And, as Michael Moore so winningly said, Scotland cannot expect a free pass
     
     

      

  32. Traquir says:

    I’m astounded that after 300+years they have now admitted UK = England and England = UK
     
    Can’t wait to see BritNats in the Scottish Parliament comment on this.
    Perhaps given Scotland extinguished Scottish extinguished and BritNats will
    now and rename Scottish Parliament a Branch of The English Parliament ?

      

  33. R Louis says:

    Pa Broon,
     
    You are right, this statement, is very aptly described by Nicola Sturgeon as breathtaking arrogance.  stupifyingly arrogant.

      

  34. If I might offer my historical perspective, the opinions offered by the advisors to the UK government when they were drafting this document are probably technically correct, that in matters of international law Scotland ceased to exist. I tend towards the view that England also ceased to exist, not least because their flag was retired and their statutory institutions officially became British instead of English.
     
    What has been left out of this analysis is any distinction between crown and country. Remember that Scotland and England shared a monarch before they were incorporated together into one state, so that Scottish diplomatic representations abroad after 1603 but before 1707 were already conducted under the Great Seal of England, otherwise known as the Stuart monarchy’s official seal abroad (adopted by James VI & I for good reasons). The Dutch, when William of Orange was King of England, Scotland and Ireland, also used a similar seal when dealing with foreign plenipotentiaries.
     
    Thus, we see a conversation happening at the heart of the UK government that shows their inability to distinguish between matters of crown and Parliament. Even when enjoying separate monarchs, the Scottish Parliament conducted foreign policy and regulated overseas trade. Yes, it gave those rights up when it merged with the English Parliament to become Westminster, but this explicitly did not constitute an expansion of England. It was instead a mutual incorporation into Britain, under a monarchy that had already been British but was, for all intents and purposes, operating as English. Those Scottish members who joined Westminster were only elected because the near 300 Scottish shire commissioners had been turned into a rump group in order to secure the Scottish Church, civil legal establishment and university system. Deincorporating that union should thus be legally possible. There are precedents: see the 1640 dissolution of the Iberian Union between Portugal and Spain.

      

  35. M4rkyboy says:

    The worst part is we are unarmed.

      

  36. Rev. Stuart Campbell says:

    “I refer you to para 96.2, where the possibility of an rUK ‘enclave’ at Faslane is specifically mentioned.”

    The UK can “wish” for such a thing all it wants. There are no imaginable grounds on which it could force one.

    “This document is not nonsense. It is not a joke. It is a clear piece of advice (and is probably correct) that in the eyes of International law, Scotland has no LEGAL existence.”

    I agree that that’s what it asserts. Whether it’s correct or not is a matter of debate.

    “It has a clear purpose, which is to ensure that Scotland has no legal right to anything at all, and that anything that is granted to it as part of an independence settlement is at the discretion of rUK.”

    But it then also inescapably follows that it has no liabilities either. However you slice a cake, you can’t have it and eat it.

    If Scotland votes for independence, then it becomes a nation under the UN Charter on self-determination. At that point it is protected by international law, based on its known boundaries.

      

  37. muttley79 says:

    I am confused.  If Scotland does not exist then what status does Scots law now have?  Also, can they nick our oil?  So what is the exact status of Scotland now?  Are we just a region?  If we do not exist in international law does that not have implications for the Lockerbie trial? 
     
    I think today we are getting a confirmation, if any was needed, why the unionists were so desperate to avoid a referendum.  Talk about it all coming out in the wash…

      

  38. Graeme Cowie says:

    Come on.
    The point here is that the Union extinguished the Kingdom of Scotland. It literally does not exist, because a new Kingdom replacing it in its entirety was formed. The most ambitious Scottish nationalist reading of the Treaty of Union is that it forms basic law which must not be transgressed (that it has been, is another matter, and down to the lack of a Constitutional court being created to arbitrate on the Parliament of Great Britain’s legislative competence).

    This publication is not insisting that Scotland does not exist as an idea, as a nation, or as a territory with special importance within the internal UK legal order. It clearly is a nation, and it is specially recognised by being given its own Parliament under a process of devolution to make a range of decisions for itself.

    International law recognises two kinds of actor. States and organisations composed of states. Scotland at present is neither. As such it has no legal personality to enter into any treaties until it is recognised either by other states or by an international organisation (e.g. the UN) as being a state in its own right. That is what Scottish independence is about. Should we be allowed statehood, to be allowed to enter into treaties off our own back rather than merely be a representative part of another state which does so.

    The international legal norms, established by the Vienna Treaty and precedent before and since, is that new states inherit no legal privileges or obligations in respect of any treaty the old state of which they were a part signed, and that they start with a clean slate in that respect. Other obligations and rights, which do not relate to international treaty obligations, are subject to the negotiated domestic settlement. See for example, the protracted manner in which the assignation/extinction of national debt was dealt with on the creation of the Irish Free State, where the UK essentially agreed to take on the whole of the national debt in exchange for a 60-year fixed payment from the IFS broadly representative of their share.

    What is clear is that Scottish independence does not involve repealing or amending the Treaty of Union 1707. As a Treaty (i.e. a product of international law) it cannot be amended by the UK Parliament except to the extent expressly permitted by that Treaty itself. Moreover, the Union is deemed to be perpetual by several of the provisions. Therefore, Scottish independence does not mean the restoration of the old Kingdom of Scotland, but the creation of a new state superseding those terms, and in accordance with international law. That said international law also provides that rUK will be the successor state to the UK, owing to its being the obvious candidate to be such, its being by some considerable margin the most able of the resulting states to assume and continue those obligations, and it almost certainly wanting to claim that right to successor-statehood.

    Note also that there is literally no provision or precedent within international law providing for co-equal successor states, and that the only alternative to a single successor state is to assert that there is NO successor state, as happened in the cases of Czechoslovakia (by agreement since neither sought to be seen as such) and in Yugoslavia (by refusal to recognise the Federal Republic of Yugoslavia, owing in major part to it comprising less than half the territory and population of the old state).

    This legal reality is one all parties must acknowledge if we are to produce a proper and considered transition to an independent Scotland in the event of a Yes vote in 2014. I say this as a Yes voter who is a member of the Liberal Democrats (in the interests of full disclosure). Making politics out of this legal position is poisonous on the part of both sides and makes it far more difficult to make good on the Electoral Commission’s recommendation that both sides work together to make it clear well in advance of 2014 what the process will be to facilitate an orderly transition in the event of a Yes vote.

      

  39. John H says:

    If I’m English, how come I’ve got a British passport? Surely I should have an English one.

      

  40. Rev. Stuart Campbell says:

    “This publication is not insisting that Scotland does not exist as an idea, as a nation, or as a territory with special importance within the internal UK legal order. It clearly is a nation”

    Sorry, Graeme, but that’s just empirically wrong. The document states repeatedly that no matter which view you take, the nation of Scotland was in 1707 – in this exact word – “extinguished”. That’s an unambiguous and final term which leaves remarkably little room for interpretation.

      

  41. Dee says:

    Can anyone tell me what we can do with the media in Scotland. Tv and newspapers, everyone of them is against independence!, please give a re assuring answer because I am totally sick of them . I can’t be the only one who feels like this.

      

  42. Castle Rock says:

    @Tris
     
    Well, according to the Bitter Together lot, Resistance is futile…
     
    One England is what Johann Lamont and her fellow Unionists wants us to be.
     

      

  43. seanski says:

     
    R Louis says:
    1

    “This is starting to sound a bit like Rangers….”

    So does that mean we’ll be called “The Scotland”?

      

  44. Graeme Cowie says:

    Mr Campbell, you’re wrong. Scotland, in the specific context of this section of the document you cite, is a reference to the Kingdom of Scotland that had international legal personality until 1st May 1707. This is clear by the reference to international legal persons or international law in EVERY SINGLE MAJOR PARAGRAPH from 34 to 39 in that document.
     
    To read otherwise is trying to find an intention that is, quite simply, absent. All this section of that document serves to articulate is the two competing legal understandings of the Union, one which says it was an incorporating Union (and which has long been favoured by Dicey) and a union which extinguishes two states and creates another over the same territory. I personally find the latter more compelling (otherwise we wouldn’t have had a Treaty between Queen Anne of Scots and Anne, Queen of England, just an actual annexation), but under either reading, there is no international legal person called “Scotland” or “the Kingdom of Scotland” under the status quo. That is all that section is driving at.

      

  45. BillyBigbaws says:

    Kininvie said: “It is a clear piece of advice (and is probably correct) that in the eyes of International law, Scotland has no LEGAL existence.”

    What does this mean for the conviction of Abdelbaset Al-Megrahi at the Scottish Court in the Netherlands? Does it still stand?

    If Scots Law exists, which it does, and has both an international profile and clear territorial jurisdictions like it does now, then how can the same legal territory that Scots Law presides over not exist?

    Why did Westminster consider the Adjacent Waters Boundary Order of 1999 to be necessary if Scotland has no separate territorial waters, or lands, or property, of it’s own?

    These are just a few of the questions I would ask. I agree with you that this document is not good news, for the Yes campaign or anyone else.

      

  46. kininvie says:

    There’s no point in arguing that the mere act of voting brings us the protection of international law. It doesn’t. Only an independence settlement and international recognition does that. And Westminster is setting about dealing itself the strongest possible hand in advance by ensuring that, legally, any such settlemment is soley the gift of rUK.
    Historically, England spent centuries justifying the legal validity of its monarchs’ claims to feudal overlordship of Scotland, and used those justifications to claim more or less whatever it wanted. We are merely seeing the same tactics updated..
    Which is why this advice needs to be challenged – perhaps on the grounds outlined by Craig Gallagher above. It can’t be left to stand as some kind of a joke.

      

  47. TYRAN says:

    So Scotland was incorporated and extinguished under an enlarged England. Seems pretty clear to me. Just hammer that message home. You are not actually in Scotland. But in England. Change the referendum question to more accurately reflect this. “Should Scotland end being incorporated and extinguished under an enlarged England?”

      

  48. Graeme Cowie says:

    BillyBigbaws:
     
    A distinct system of law does not give you international legal personality. For the purposes of international law, both Scots and English law are merely domestic systems of law used by the state called the United Kingdom of Great Britain and Northern Ireland. The reason Al-Megrahi’s trial was held in the Netherlands under Scots law is because it was the domestic law that applied to that particular part of UK territory where the crime(s) were alleged to have taken place.
     
    In respect of the AWBO, that’s solely a matter of domestic law. It’s a question of administration of assets of the British state. They can change the composition of the borders (within their legal powers) whenever they like as it’s an internal matter and the Westminster Parliament is (if not de jure) then at least de facto sovereign. You’ll probably find it has an effect on Barnetable spending of infrastructure or something to that effect. As a matter of law, though, the sea boundaries (as long as they don’t extend into international waters per international law) are entirely a matter for the sovereign state which has claim to them. The sea border will be a matter which can be negotiated between Westminster and Holyrood in the post referendum settlement.

      

  49. Vronsky says:

    “I am just back from the shops where I took a quick look at the headlines on today’s papers. It’s all “Massive blow to the independence campaign”
     
    It must be true.  I read all the newspapers and always watch the BBC news. There are never any ‘massive blows’ in any other direction.  The awfulness of isolation, the smug opportunism of ugly overweight men like Salmond, the corruption and sectarianism of the SNaziP, the nastiness of fascism of any kind – these are  all well-attested evils, widely documented and universally detested by thoughtful and decent people like us.  Hence and accordingly, we’ll be voting No.
     
    Mission accomplished, No Campaign. And they’ve barely finished their first coffee.
     
    I heard rumours of a ‘Yes’ campaign.  Somebody down the pub must have been winding me up.

      

  50. muttley79 says:

    @Dee
     
    You can donate to Rev Stu’s fund so he can go full-time on reporting the referendum, and you can stop (or continue to) buying ‘Scottish’ newspapers.

      

  51. Rev. Stuart Campbell says:

    “but under either reading, there is no international legal person called “Scotland” or “the Kingdom of Scotland” under the status quo. That is all that section is driving at.”

    Um, yes. That’s why I highlighted the section making that precise point. I think I’ve lost track of what you’re disagreeing with me about.

      

  52. Rev. Stuart Campbell says:

    “There’s no point in arguing that the mere act of voting brings us the protection of international law. It doesn’t.”

    It really kinda does. Scots have the right to self-determination, and Scotland has recognised boundaries. That’s all you need. Otherwise Westminster could simply dictate terms – “We get all the oil, you get all the debt, like it or lump it.”

      

  53. ben leiper says:

    So how do they explain the use of Scots Law and Scottish Judges in the Megrahi trial?

      

  54. Graeme Cowie says:

    Mr Campbell:
     
    Being a “nation” is completely different from being a “state” with international legal personality.
     
    The European Union is a body of states, not nations. The United Nations (despite its name) is essentially a body of states, not nations. Nations do not enter international treaties and they do not exhibit international legal personality.
     
    This document is not claiming that Scotland is not a nation. It is claiming that it is not a state. Which is correct.
     
    And actually, “just voting” doesn’t make you a state under international law. The right to self-determination is couched in the terms of having effect subject to the appropriate legal avenues of the relevant state provided that those avenues do not have the effect of preventing effective exercise of that right to self-determine. That doesn’t give you any rights to be parties to treaties. That gives you the right to demand a plebiscite on self-determination held impartially and openly. That gives you a right to secure a state through peaceful and lawful negotiations in the event that plebiscite operates in favour of self-determination, and to recognition of that state or settlement on satisfactory completion of those negotiations. In the event those negotiations are not satisfactorily completed, it protects wannabe states’ rights against being bloodily suppressed in a civil war. That’s really about it.

      

  55. KOF says:

    Graeme Cowie says:11 February, 2013 at 6:18 pm

    “The point here is that the Union extinguished the Kingdom of Scotland.”
    So, you consider yourself British and British only then? ;)

      

  56. Colin Dunn says:

    So all that nonsense from Better Together about us losing our Britishness post indy is nonsense, as we’re all English anyway?

      

  57. Dee says:

    Hi muttley
     stopped buyinG newspapers a few years ago,  but it is the tv MSM like bbc who have a very unionist view on independence.  I will be going to the rally in Glasgow on 23rd feb for a balanced media opinion during the campaign.  
     

      

  58. kininvie says:

    Scots have the right to self-determination, and Scotland has recognised boundaries.
    Sorry, that’s wrong. The right to self-determination of peoples is laid down in the UN charter, but with no definition of who has that right or how it is to be achieved. To claim Scots have that right is an assertion, but no more.
    Scotland has no recognised boundaries in so far as International Law (which is what we are arguing here) is concerned, for the simple reason that Scotland is not a legal entity recognised internationally.

      

  59. Graeme Cowie says:

    KOF:
     
    No, I don’t consider myself to be “British and British only”. Identity is wholly unrelated to statehood.
     
    I consider myself to be a Glaswegian, a Scot, a Brit, a European and a citizen of the World. None of that is incompatible with being for or against Scottish independence, which is a question about statehood, not nationhood.

      

  60. Rev. Stuart Campbell says:

    “Scotland has no recognised boundaries in so far as International Law (which is what we are arguing here) is concerned, for the simple reason that Scotland is not a legal entity recognised internationally.”

    Sorry, but this is a wholly meaningless semantic quibble. The border between England and Scotland has, to the best of my knowledge, remained static for 300 years. It is howling insanity to suggest it would be a matter of debate in the event of a Yes vote. As for a definition of self-determination, the Edinburgh Agreement would appear to provide that.

      

  61. Oldnat says:

    Boyle & Crawford’s advice is actually a well constructed piece of legal opinion for those that commissioned it – the UK Government.
    Publishing it (against all precedent) was an act of remarkable folly by the UK, however. They were so determined on the outline advice, that they failed to see the political consequences of it.

      

  62. Graeme Cowie says:

    The Edinburgh Agreement isn’t a legal document. It defines nothing. It is a memorandum of understanding between HMG and the Scottish Government. It’s a matter of domestic practice and intentions. It does not determine a legal basis for self-determination.

      

  63. moujick says:

    Was away and up early this morning with only the sight of newspaper headlines until driving home circa 5.15….was really surprised that this whole thing only merited about 4th place on BBC Scotland newsdrive……then read Wings, twitter etc and it all made sense…..The thing is, the UK govt probably thought this was some huge big deal breaker and then it turns into an own goal…..you get the feeling that all of their papers will be the same…bring it on!

      

  64. scottish_skier says:

    REV: or part of the “Tories are trying to lose the referendum” conspiracy theory.
    ;-)
    Region of greater England. Quality Dave. Did Alex suggest that?

      

  65. Rev. Stuart Campbell says:

    “This document is not claiming that Scotland is not a nation. It is claiming that it is not a state. Which is correct.”

    The document is claiming that Scotland isn’t an ANYTHING. It unequivocally states that Scotland was “extinguished”. If you extinguish a fire it doesn’t exist by another name.

    The word “nation” has no specific legal meaning, any more than “country” does, so arguing the toss over it is pointless.

      

  66. muttley79 says:

    @Graham
     
    Why did the media refer to the Edinburgh Agreement as legally binding then?

      

  67. KOF says:

     
    Graeme Cowie says:
    11 February, 2013 at 7:05 pm

    KOF: No, I don’t consider myself to be “British and British only”. Identity is wholly unrelated to statehood. I consider myself to be a Glaswegian, a Scot, a Brit, a European and a citizen of the World. None of that is incompatible with being for or against Scottish independence, which is a question about statehood, not nationhood.
     
    LOL
     

      

  68. muttley79 says:

    @s_s
     
    Why did Moore go along with it?  He must have read it before it was published?

      

  69. Rev. Stuart Campbell says:

    “The Edinburgh Agreement isn’t a legal document. It defines nothing. It is a memorandum of understanding between HMG and the Scottish Government. It’s a matter of domestic practice and intentions. It does not determine a legal basis for self-determination.”

    I’m wearying of this. You’re arguing abstract technical absolutes versus realpolitik. Whether the Embragreement is a “legal document” or not – and given that it concerns a statute of Parliament, namely a Section 30 order, I would contest your assertion – it certainly DOES define things. It defines what the UK and Scottish Governments agreed to do.

      

  70. Rev. Stuart Campbell says:

    The realpolitik view:

    “No-one much cares whether the Edinburgh Agreement has legal status or not because it may simply not matter.  The Agreement has perhaps all the ingredients for successful auto-enforcement: tight legal drafting, a culture of governments honouring formal commitments, and reciprocal self-interest locked down by the reputational costs of breach. 

    It is difficult to see how the ‘added-value’ of a legal agreement – court enforcement – would help.  These ingredients will either remain or will not: if the Agreement self-executes no court is necessary, while if a party for some presently unpredictable reason pushes a ‘destruct’ button, no court is sufficient.”

    http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/431/Christine-Bell-The-Legal-Status-of-the-Edinburgh-Agreement.aspx

      

  71. Graeme Cowie says:

    Mr Campbell: Every single paragraph which refers to “Scotland” has the words “international law” or “international persons” immediately before or afterwards. With respect to the use of the word “extinguished” it is IMMEDIATELY followed by the words “as a matter of international law.”
    Since you accept that nation has no effective meaning for the purposes of international law, extinguished can only refer to its statehood. That’s just a fact.
     
    Legal personality is itself something which is artificially created and which is about recognition within a human created order (in this case, the international order). The fire analogy is ridiculous because that additional layer of abstraction simply doesn’t exist.
     
    Muttley: Because they’re wrong. The Edinburgh Agreement provided the understanding upon which the two Governments would proceed. Note that the referendum won’t be legally binding (no referendum is in the UK). What the EA provided for was an understanding that the UK Parliament would go on to pass a s30 order to allow the Scottish Parliament to legislate for a referendum under specified conditions, that the Scottish Parliament would then pass that legislation, that a referendum would be held in accordance with the s30 order, and that all parties would (politically) accept the outcome.

      

  72. Graeme Cowie says:

    Mr Campbell: Courts enforce law. They don’t enforce memorandums of understanding. That’s the critical difference. Self-determination is therefore not LEGALLY defined for Scotland’s purposes. It is not a legal term of art. That’s what defined means in that context.

      

  73. muttley79 says:

    @Graham
     
    So why did the media report it as a legally binding document?

      

  74. Alasdair Stirling says:

    “We get all the oil, you get all the debt, like it or lump it.”
    This is exactly the plan behind the UK govt’s position.  They are trying to run the argument that Scottish independance is simply a secession of a part of UK territory rather than a dissolution of a political Union.  If they succeed, they may very well be able to limit the succession to only the land mass of Scotland and the territorial waters up to the 12 mile limit.  This is exactly what they did in the case of the Irish Free State.  Incidentally, they also lumped the Free State with a pro-rata share of the UK debt but not the assets (other than those that they couldn’t remove from Ireland.
     
     

      

  75. Rev. Stuart Campbell says:

    “Courts enforce law. They don’t enforce memorandums of understanding. That’s the critical difference. Self-determination is therefore not LEGALLY defined for Scotland’s purposes. It is not a legal term of art. That’s what defined means in that context.”

    Blah blah abstract technicalities blah blah realpolitik blah blah cut and paste as necessary.

      

  76. BillyBigbaws says:

    @ Graeme Cowie,

    Thanks for answering, your reply makes sense, though it is very depressing in it’s implications, and I have to admit I’m still confused. Looking at a map of the Exclusive Economic Zone of the UK (albeit from wikipedia, hopefully it’s not too inaccurate) there seem to be clear borders between not just Scotland and England’s seas, but around those of Wales and NI as well. Since the EEZ is defined by UNCLOS it is thus surely a matter of international law rather than domestic UK law. Are these borders defined by domestic or international law?

    http://en.wikipedia.org/wiki/File:UK_exclusive_economic_zone.jpg

    If I understand you (and the UK government’s document) correctly, is the implication here that Scotland at present has no more legal right to it’s own territorial waters and EEZ than Ascension Island, Anguilla, or any other overseas British dependency?

      

  77. muttley79 says:

    Graham, don’t respond to my last post.  I am getting confused with all this legal stuff…

      

  78. Dee says:

    All of you who are against an independent Scotland can be considered to be “half breeds”. Because you are half scottish, half British.  So know more of this “I am a proud scot” because you are not a true scot, you are a  “half breed”.

      

  79. Geoff Huijer says:

     
    @kininvie says:
    Scotland has no recognised boundaries in so far as International Law (which is what we are arguing here) is concerned,
     
    According to the expert (Craig Murray) Scotland does…
     
    http://www.craigmurray.org.uk/archives/2012/01/scotlandengland-maritime-boundaries/

      

  80. Albalha says:

    1707 Act of Union declared that England and Scotland were United into one Kingdom by the name of Great Britain.

    I get the sovereign state is the UK but international law is not written in tablets of stone. David Scheffer, international lawyer, as I remember from a recent interview clearly stated England and Scotland were successor states. 

    The above document gives a whole new meaning to the North British Hotel.    

      

  81. M4rkyboy says:

    Fuck England
    There,i can safely say that now.
    And Fuck all you ‘Scots’ that want us to be ruled from there.

      

  82. muttley79 says:

    @M4rkyboy
     
    Great way to get people to support independence…

      

  83. Graeme Cowie says:

    Mr Campbell: you can’t refer to “rights” and then pooh pooh the legal process by which they are enforced.
     
    BillyBigBaws: the implication of the document and its assessment of the legal position is that it is a contradiction in terms to talk about Scottish waters (beyond the rights we enjoy internally in the UK) because waters, as a matter of international law, accrue to states, and Scotland is not a state. It’s certainly possible that if there isn’t agreement on our borders, we might get the ICJ to intervene and make an advisory arbitration, but it wouldn’t bind anyone.
     
    Dee: Charming.
     
    Geoff Huijer: No, that’s not what he says. First sentence makes clear that the boundaries are set by a piece of Westminster legislation and are not a matter of international law. They only become so on independence and even then only to the extent that the ICJ can offer an advisory opinion on the matter
     
    Albalha: David Scheffer was talking nonsense about co-equal successor states. There is literally no precedent or source of law for this and no sign of a change. He said that we should ignore international law and reach a supplementary agreement internationally to treat Scotland as though it were a co-equal successor state to rUK. This is mental, has no legal basis, and won’t happen.
     
    M4rkyboy: Charming.

      

  84. magoo says:

    Its all been a con trick since day one. Lets get out of it in 2014.

      

  85. muttley79 says:

    @magoo
     
    Correct!!

      

  86. kininvie says:

    Rev,
    Don’t lose the plot just because you don’t like what you are hearing. Mr Cowie is giving you precise, accurate definitions and you respond with ‘blah blah abstract technicalities’. That’s not conducive to debating the issue properly, which is what we need to do.
    These are real matters on which the UK gov is going to base its opening hand in independence negotiations. To say the idea of discussing the border (eg) is ‘howling lunacy’ (your words) is to totally misunderstand the nature of the power play the rUK is about to make. They are aiming for the position whereby everything that an independent Scotland gets is a Concession. ‘You want the existing border? OK, that’s fine. Now what can you offer in return?’
    Don’t dismiss this stuff. It’s important.

      

  87. Rev. Stuart Campbell says:

    “you can’t refer to “rights” and then pooh pooh the legal process by which they are enforced.”

    Something’s just dawned on me. Might you be a lawyer, solicitor or similar? Because the speciality of that breed is finding a problem for every solution, and unfailingly prescribing “more lawyers” as the only way forward.

      

  88. sneddon says:

    herald nomore “steps to the latest Morris Dance?”
    Drink warm beer until the boogie grips you and then shake your bells
    :) 
    Happy to help

      

  89. Albalha says:

    @GCowie

    But isn’t the point that international law is subject to interpretation?

         

      

  90. muttley79 says:

    @kininivie
     
    Why are taking everything the British government say in their document has the final word?

      

  91. Bob Weir says:

    With each day there is yet another scare story from the bitter together mob.They are begining to look like a Brian Rix farce.

      

  92. sneddon says:

    herald nomore- I meant of course ‘hope that helps’ no intention of helping you shake your bells

      

  93. Andy Anderson says:

    As usual the British Government are trying to have it both way. I think we should take the offer which they insist on claiming is right. We should walk away with nothing from our 300 year union. Let RUK keep everything as they claim which of course means the              
    £1.5 trillion debt. It seems reasonable to me, we can deal with the UN and the EU by ourselves without their involvement.
     

      

  94. KOF says:

     
    Rev. Stuart Campbell says:11 February, 2013 at 7:42 pm

    “you can’t refer to “rights” and then pooh pooh the legal process by which they are enforced.”
    Something’s just dawned on me. Might you be a lawyer, solicitor or similar? Because the speciality of that breed is finding a problem for every solution.
     
    http://www.predictableparadox.co.uk/p/about-me.html

      

  95. M4rkyboy says:

    Pfft,fuck the SNP and their moderate Nationalism as well.
    We need ultra-nationalists fighting Scotlands corner.Not the gutless SNP.
     

      

  96. Graeme Cowie says:

    kininvie has it absolutely right.
     
    Mr Campbell: I am a law student, yes. But this isn’t about looking for problems. It’s about understanding that there are problems and what the best way is to tackle them. If those in favour of independence fight the battle on an imaginary battlefield with terrain that represents nothing like the actual place of engagement, they’ll get slaughtered.
     
    Albalha: yes, international law is subject to interpretation. But that’s not a carte-blanche to make everything up as you go along for the same reason that having things being subject to interpretation doesn’t mean I am right when I call a duck-billed-platypus a giraffe.
     
    Andy Anderson: this is nonsense. That’s not what they’re saying. They’re saying that an independent Scotland under international law inherits none of the INTERNATIONAL rights and obligations of the old state. This is an established legal norm. The debt is no more an international issue than the territory. If you say “let the UK keep all the debt” you must also say “let them keep all the territory and all the people”. Which defeats the point of independence. It’s a matter subject to negotiation because the debt was incurred by acting on behalf of the whole of the current state.

      

  97. Rev. Stuart Campbell says:

    “Don’t lose the plot just because you don’t like what you are hearing.”

    Neither of those is the case. I just hate getting bogged down in insane and pointless hairsplitting. If the rUK attempts any of the things you’re suggesting, the ultimate outcome will be civil war, or at a minimum decades of The McTroubles. That’s in nobody’s interests. Realpolitik trumps law, every time. But I don’t expect you to take my idiot-punter word for that, which is why I cited the infinitely more learned Professor Bell. I suggest you raise any disputes with her.

    “‘You want the existing border? OK, that’s fine. Now what can you offer in return?’”

    You simply cannot, for example, really be suggesting for even a second that the rUK would attempt to negotiate the border, even as a bargaining position. That’s tantamount to an invasion.

      

  98. The Hennesseys says:

    I’ve just beeen on the BBC website where they’ve paraphrased the legal advice into ‘simple’ points and am SHOCKED! It’s a complete misrepresentation to the point of saying the opposite of what the paper I myself read this morning says. I am hyperventilating. THERE IS NO HOPE WHEN THE MEDIA IS SOOOOOO BIASED…
    Because Independence is asking Jo Public not only to take a chance ,but to realize that all UK institutions ,so lauded for their ‘fair’ play, are totally corrupt, power hungry, dishonest and tyrannical. Even I didn’t want to really believe that.
    The press is going to lose the referendum for us. I can suddenly imagine what all those people who had their parliament and sovereignty ‘extinguished’ in 1707 felt. The problem with the press is VERY VERY serious.

      

  99. douglas clark says:

    There is precedent for the break up of the UK. It happened when the Irish Republic left. I am surprised that that precedent doesn’t – the negotiations at the end of it rather than the way it was obtained – don’t appear to inform this debate in a more comprehensive way than they do now.
     
    One would assume that the rights of ireland were equally ‘extinguished’. But they appear, now, to have all the trappings of state and in the final analysis did indeed walk away without any of the UK debt.

      

  100. Graeme Cowie says:

    Of course realpolitik will set the direction of travel. But the law matters. It sets the terrain upon which these arguments are fought precisely because no one wants a civil war. These principles and norms entrenched in law establish the terms of engagement for our independence settlement. It is better that we navigate them than ignore them.

    The point is, you can’t create an entire post making hysterical points about the UK denying that Scotland exists, when the context is a piece of legal advice that assesses its international legal personality (i.e. statehood) rather than the niceties of its political, cultural and social identity and not expect it to be criticised. You’re adopting double standards by applying political calculi to a document concerning matters of law, then complaining when people point out that your own understanding of the established procedures of this are political rather than a true reflection of what the law says is our starting point.

      

  101. Cyborg-nat says:

    graeme cowie
     
    “Albalha: David Scheffer was talking nonsense about co-equal successor states. There is literally no precedent or source of law for this and no sign of a change. He said that we should ignore international law and reach a supplementary agreement internationally to treat Scotland as though it were a co-equal successor state to rUK. This is mental, has no legal basis, and won’t happen.”
    But from Nichola Sturgeon

    Conversely, in the case of the Czech Republic and Slovakia (ignored by the UK government), both countries agreed to be co-equal successor states.
    The fact is that international precedents – even those cited by the UK government – prove the point that these are matters to be settled, not by law, but by sensible and mature negotiation that reflect the particular circumstances of the countries involved: reflecting the letter and spirit of the Edinburgh Agreement, signed up to only last October by David Cameron as well as the Scottish Government.”
    Bit at odds with your statement Graeme but the part in brackets about the British Government seems to fit in with your argument.

     

      

  102. Albalha says:

    @GCowie

    It’s all about political negotiation at the end of the day, we don’t know, nor does any so called international law expert know how it will shake down. 

    Btw, Channel 4 News ignored the report, seems to be a pattern for them, unless it’s RFC, Newco et, Scotland where’s that. 

      

  103. Graeme Cowie says:

    douglas clark:
     
    The Irish Free State, later the Republic of Ireland, inherited none of the UK’s international legal obligations or rights. That’s a fact.
    However, as part of the domestic settlement, it was required to make a 60-year payment to the UK in-lieu of its share of the national debt, in exchange for which the UK would take on the burden of the debt itself. I’d imagine something similar would happen in Scotland’s case.

      

  104. Whampoa says:

    kininvie
    It is howling lunacy. The border won’t be up for discussion. In international law, i refer the honourable member to Uti possidetis juris. That’s one of many starting points in, ahem, international law from which to…well…start.
     

      

  105. KOF says:

    @M4rkyboy
    I understand the frustration in your heart, I too feel it, but the time is not yet here for it to be released.
    Stand your ground, keep the schiltron strong, let the enemy throw themselves on it.
    Win the war first, win the peace later.

      

  106. Rev. Stuart Campbell says:

    “The point is, you can’t create an entire post making hysterical points about the UK denying that Scotland exists, when the context is a piece of legal advice that assesses its international legal personality (i.e. statehood) rather than the niceties of its political, cultural and social identity”

    I didn’t mention any of those things. Here’s what I said (new emphasis):

    “whichever way you interpret the legalities of the Union, Scotland does not exist”

    Clearly, therefore, I was talking about the legalities. The clue is the word “legalities”. The rest of the piece is – obviously, I’d thought, but perhaps not – a mildly satirical attempt to illustrate the absurdity of the UK Government’s interpretation of the report. If Scotland is a new nation, it can’t be responsible for debts. If it’s a successor, it inherits treaties. It seemed a simple point, namely “You can’t have it both ways”.

    Evidently either I’ve failed in writing or you’ve failed in reading. Which of those is the case is a matter of opinion. (And that’s not sarcasm.)

      

  107. Graeme Cowie says:

    Cyborg-nat: the Czechoslovakian break-up was not a case of two coequal successor states. It was a case of two new states and NO successor states. None of the international rights and obligations under ANY treaties signed by Czechoslovakia were automatically assigned to either the Czech Republic or Slovakia. Instead, they agreed to sign up to everything they had previously signed up to separately as fresh international states with a “clean slate”. Had the Czech Republic sought to be recognised as the successor state, it probably would have had a strong case, but it opted not to and there was no will among the international community to insist that it did so because of what it promised to do instead was broadly equivalent and didn’t harm anyone else’s interests. They had to reapply to join things like the United Nations. Put simply, Nicola Sturgeon is wrong.
     
    In the UK case, we have a far more clear-cut distinction on population, territory and complexity of international relations which makes it simply implausible that the rUK will not seek to be recognised as the singular successor state to the current UK (prime reason being UN Security Council permanent seat is not something they’ll want to relinquish or make subject to negotiations). What is unequivocally clear is that Scotland will not be recognised as the successor state of the current UK, and there can only ever be one successor state. The Vienna Convention is unambiguous about this.

      

  108. Indy_Scot says:

    So my understanding of this is that basically Scotland is not a real country.
    Thankfully we all have a vote next year to sort that out.

      

  109. kininvie says:

    If the rUK attempts any of the things you’re suggesting, the ultimate outcome will be civil war, or at a minimum decades of The McTroubles
    Of course. So, lets look at the broader picture, and the rUKs strategy.
    First, show, that, legally, they hold all the cards and use it to promote a no vote.
    If that fails, decide what having having a peaceful Scotland is worth.
    Concede what is necessary.
    You will note from Mr Stirling’s intervention above, that they have done this before.
     
    Which is why I say (and in answer to Muttley) that I think this advice must be challenged as quickly and in as much detail as possible. The paragraphs on reversion seem to be somewhat vulnerable, but not being a lawyer, I wouldn’t know. However, it’s important to take the fight to them at an early stage, and as Mr Cowie puts it, if you do so on an imaginary terrain, it’s asking to be slaughtered.

      

  110. Graeme Cowie says:

    Mr Campbell:

    If we are referring to “legalities” then we’re not talking about nationhood. You accepted that earlier when you said law doesn’t define nations.
     
    Therefore, when someone says, “as a matter of international law, Scotland does not exist” they are saying that it is not a state. Note that state =/= nation.
     
    This is not an absurdity. This is the position of international law.

    Scotland is not a “new” nation. It’s a very old one. An independent Scotland will be a new STATE, not a new NATION. This is an important distinction, but actually one which has no bearing on whether or not it has debts. Whether or not an independent Scotland has debts depends on the internal arrangements reached in negotiations with the UK Government to permit it to become a new state by virtue of primary legislation from Westminster (see the other actual cases of this happening, such as Canada, Australia, the Irish Free State). Whether Scotland gets debt (something which arose from activity involving the people and territory of Scotland) is therefore subject to domestic negotiation, and not something of principle connected to international law. We might get a pro-rata share of the debt directly, get it indirectly by a process of joint stock bonds which gradually pay out until they no longer exist, or make an annual payment for X years in exchange for being formally relieved of joint liability for that debt.
     
    What is absurd is your inability to tell the difference between an international issue and a domestic issue. Scotland can no more automatically shirk its liability in respect of the debts than it can automatically claim its territory, an asset of the UK. Virtually every single precedent of new states shows that some form of debt liability exists but that only one state inherits international obligations. This isn’t incoherent and it isn’t absurd. It’s an ordered way these things are done.

      

  111. Rev. Stuart Campbell says:

    “Uti possidetis juris”

    To save people going and looking that up, like I had to:

    http://en.wikipedia.org/wiki/Uti_possidetis_juris

      

  112. scottish_skier says:

    @Graeme Cowrie
    makes it simply implausible that the rUK will not seek to be recognised as the singular successor state
    I can see why they’d want this, but what will this state be called and what will its flag be? It would be an international laughing stock if it tried to keep flying the union flag and calling itself the UKoGB like nothing had happened.
     
     

      

  113. benarmine says:

    I don’t think the Scottish Government can let this pass, I mean legally. It will have to be challenged and clarified or even more arrogance will follow. This will also force it into the MSM and the public gaze which I agree with others will not highlight it now.

      

  114. R louis says:

    You know what really strikes me about today’s events and much of the hubris from the anti independence parties and Westminster so far is this, the complete and utter lack of one compelling reason why Scotland should continue to be run from London.  Time and again, the unionist cabal have repeatedly promised to make the ‘positive case’ for the union, and yet their complete inability to do so, has rendered that phrase as nothing more than a poor joke.

    Given the way in which one side in this supposedly ‘wonderful’ union has behaved, and continues today to behave towards Scotland and its people, we can be sure of one thing, that there really is no such thing as a ‘positive case’ for the union.  It is a redundant union formed between two countries, which either country under the terms of the Vienna convention may unilaterally end.

    It may be the union was useful once, a long time ago, but I personally struggle to see it.  All this ‘legalese’ nonsense by Westminster today trying to legitimise a wholly untenable argument, only reinforces the complete lack of understanding or coherent thought on this subject in the corridors of Westminster.

    The union is dead.  It has been dead a very long time. 

    Independence will be good not only for Scotland but for rUK, it may indeed be the kick that London needs to reform its wholly undemocratic sham of a parliament, with nearly 1,000 (and rising) unelected legislators.  Scotland will have a very bright future, free from Westminster’s corrupt shackles.
     
    Vote YES in 2014.

      

  115. Graeme Cowie says:

    Mr Campbell: As the article suggests, it’s a principle. It’s not a law. It’s a principle that they seek to apply to particular circumstances and comes into conflict with other principles of international law.
     
    scottish_skier: Whatever it wants to be called. I’m going to guess the United Kingdom of England, Wales and Northern Ireland. The UK has changed its name before following a secession of a territory previously part of the Union (clue, “Northern Ireland” wasn’t a thing before the Irish Free State was formed). States can fly whatever flag they want.

      

  116. Inbhir Anainn says:

    Reading all of this makes me think that the Dr. Robert McIntyre, the first Scottish National Party Member of the Westminster Parliament just might have been right when he later noted in the ‘Evening Citizen’ that 1688 was well before the ‘Treaty of Union’ and he also suggested that “If resolutions of the old English Parliament are binding to the Parliament now at Westminster, then it would appear that the present Parliament is merely a continuation of the old English Parliament and is not a united Parliament based on the Treaty”.
    His first appearance in the Parliament at Westminster caused quite a stir and led to the press at the time wrongly accusing him of refusing to take the ‘Oath of Allegiance’ to the Crown. In the House of Commons on the 17th of April, 1945, McIntyre was called to the ‘Table’ by Mr. Speaker, D. Clifton Brown, along with other “Members desiring to take their seats”. The record in Hansard shows that McIntyre, Member for the County of Lanark (Motherwell Division), hadn’t been “introduced”. The problem was, that coming from a Party of one, he didn’t have any colleagues to do the honour. At the time, the satirical magazine ‘Punch’ carried a cartoon of him brandishing a sword and the caption, “McIntirely Alone”. In reality, the situation was more absurd than amusing and what happened next reflected badly on the ‘Mother of Parliaments’. The Speaker called the attention of the House to its resolution of the 23rd of February, 1688 – yes, 1688 – and pointed to an “ancient Order and Custom” whereby new Members had to be “introduced to the Table” so that they “may be better known to the House”. Three hundred years before McIntyre’s debut, the resolution was designed to prevent impostors taking a seat, but in 1945, custom and practice were bizarrely intent on denying a seat on a chair to the lone SNP Member.

    After some protest, a full scale debate ensued. On the one hand, there was Winston Churchill putting aside the important matter of winning the War to use his not insubstantial oratorical gifts to advise the House of Commons to keep to its ancient traditions. On the other, there was Aneurin Bevan eloquently stating that any “regulation, custom or usage of this House” should not be set against “the [constitutional] rights of the citizens of this country to be represented here by any person whomsoever they select”. Arthur Woodburn, the Labour MP for Clackmannan, suggested that the rule should be put aside in the case “of a unique party, a person who had nobody associated with him”. A vote to waive the rule went against McIntyre by 273 votes to 74, with both Attlee and Churchill on the “nay” side.

      

  117. pictishbeastie says:

    On Mr. Cowie’s own blog he states “In April 2011 I joined the Scottish Liberal Democrats”!  Says it all really! 

      

  118. James Coleman says:

    “Mr Campbell: I am a law student.”
    I think that about sums up the worth of Mr Cowie’s contributions. As for Kininvie, unless he can show impressive qualifications to back up his opinions I suggest we dismiss them as well. Me, I’m fed up with the ranting nonsense of both of them talking about abstract technicalities which will never materialise in the real world.

      

  119. scottish_skier says:

    Careful with the word ‘state’; i.e. like Kentucky or lower Saxony.
    You could say ‘Nation State’ or there’s always ‘Country’.
    Scotland is a country, but not for the moment a nation state.
    Nation carries a lot of weight though, hence ‘United Nations’.

      

  120. Cyborg-nat says:

    graeme cowie
    Waffling a bit about Czechoslovakia I suspect but lets move on to another quote from Nicola:
    “And Dr Andrew Blick of the Centre for Political and Constitutional Studies at King’s College London, told the House of Commons Foreign Affairs Committee, that ‘in my view, there is a legal case for saying the UK is dissolved and that there are two successor states.”
    Is he also mistaken?

      

  121. R louis says:

    Inbhir Anainn
     
    Thanks, I hadn’t heard that before.  It seems little has changed in the narrow minded absurdity of Westminster, with their latest nonsense today.  It will hardly endear them to the people of Scotland.
     
    What was said today by Westminster, could readily be filed under ‘well they would say that anyway’.  They deserve ridicule.

      

  122. scottish_skier says:

    On Mr. Cowie’s own blog he states “In April 2011 I joined the Scottish Liberal Democrats”!
    Ha ha. Suddenly things make sense.

      

  123. R louis says:

    Pictishbeastie,
     
    You mean to tell me somebody actually joined the Liberal Democrats in Scotland led by Wee Wullie Rennie, in 2011.  I am seriously speechless.

      

  124. Graeme Cowie says:

    scottish_skier: Of course we should be careful with the word state. In the context of a discussion which concerns “international law” however the meaning is entirely clear. Your attacking of the man rather than the ball regarding my party affiliation (which I stated right at the outset on this thread) does you no favours.
     
    Cyborg-Nat; Yes he is mistaken.

      

  125. Cyborg-nat says:

    Scottish Skier
    Yep sussed out the LIb Dem before my first post. He also was ignoring the precedent of equal successor states of Czechoslovakia as Nicola Sturgeon stated the Westminster Government had done.

      

  126. Graeme Cowie says:

    Cyborg-nat: if by “ignoring” you mean “explicitly addressing in 3 different posts”, cool.

      

  127. Rev. Stuart Campbell says:

    “Your attacking of the man rather than the ball regarding my party affiliation (which I stated right at the outset on this thread) does you no favours.”

    While I agree that ad-hominem attacks aren’t helpful, the point as I interpreted it wasn’t your party affiliation so much as the timing of it – the sort of technical distinction that a law student would surely appreciate.

      

  128. Graeme Cowie says:

    In what way is the timing significant (I’m going to have to plead ignorance here)?
     
    Everything I’ve said on this matter I’ve both thought and written about online since before the UK released this legal advice. I don’t think it’s a particularly illuminating piece of information, beyond re-enforcing what was commonly understood among most of the legal community to be the correct position as a matter of international and domestic law.

      

  129. Rev. Stuart Campbell says:

    “Scotland can no more automatically shirk its liability in respect of the debts than it can automatically claim its territory, an asset of the UK. Virtually every single precedent of new states shows that some form of debt liability exists but that only one state inherits international obligations.”

    It’s dismaying that you shift the goalposts mid-sentence like this. One moment “precedents” count, the next Uti possidetis juris is a mere “principle not a law” and the precedents it sets are worthless. You, like the UK government, seem to want to have it both ways.

      

  130. Norrie says:

    Graeme enjoying your contribution feel better armed for the inevitable arguments with the No sayers.

      

  131. scottish_skier says:

    @Greame Comrie
    Och don’t be so sensitive; that was hardly a ‘Comrie accused of eating babies’ post. Not seen you post here before; welcome aboard.
    I’m a liberal democrat/wave a yellow flag myself; I just don’t vote lib dem as they have never supported self determination; something a liberal democrat should do by default (clue’s in the words liberal and most importantly democratic). I used to be somewhat inclined towards federalisation yet sat and watched the Scottish Lib Dems refuse to work on that as an option with the other Scottish Lib Dems (you know who they are, hence the ready swing in 2011) who were happy to discuss/include a second question.

      

  132. Rev. Stuart Campbell says:

    “In what way is the timing significant (I’m going to have to plead ignorance here)?”

    That of the man rushing into a burning building when everyone else is rushing out.

      

  133. James Coleman says:

    Mr Cowie
    “…Your attacking of the man rather than the ball regarding my party affiliation (which I stated right at the outset on this thread) does you no favours…”
    It doesn’t do you many favours either. Because apart from being a 21 year old law student (by the way, have you graduated yet?) you are a 21 year old Lib Dem Law student.
     

      

  134. Graeme Cowie says:

    I’m shifting no goalposts. The precedent of facilitating statehood has always regarded debt as an internal matter to be determined by the relevant parties (i.e. the Scottish Government and UK Government in this case).
     
    The very Wikipedia page to which you referred DESCRIBES uti possidetis juris as a principle and not a law. This isn’t me speaking. It’s the doctrine. It’s not a law.

      

  135. Castle Rock says:

    Graeme, all you’ve done is put your particular spin on the spin of the British Government.
     
    I don’t think you’re helping your argument when you state that it’s up to the UK to permit whether Scotland becomes a new state or not, that statement just made you look bloody foolish.
     
    Are you seriously trying to argue that Westminster would block Scottish independence if we don’t agree to their financial settlement?  England would become a laughing stock of the international community.
     
    Both governments will have to sit down and negotiate a financial settlement that is abundantly clear but I doubt very much it will be in the way you have tried to describe.

      

  136. Melissa Murray says:

    After reading over Mr. Cowie’s posts, it’s very interesting, but it is just interpretation. Which as this is completely new territory all Legal speak is an interpretation. It it’s good to read all views, but lets not become overly concerned that Mr. Cowie’s view is in anyway fact. it’s not. 
    But Rev it’s refreshing that this blog attracts so much more intellectual debate than anything I read in the unionist press. 

      

  137. Rev. Stuart Campbell says:

    “Which is why I say (and in answer to Muttley) that I think this advice must be challenged as quickly and in as much detail as possible. The paragraphs on reversion seem to be somewhat vulnerable, but not being a lawyer, I wouldn’t know. However, it’s important to take the fight to them at an early stage, and as Mr Cowie puts it, if you do so on an imaginary terrain, it’s asking to be slaughtered.”

    You may be confusing me with the estimable Lallands Peat Worrier. I profess no legal expertise, and adopt an unashamedly tabloid approach to covering events from the perspective of simple folk such as myself.

    But while tabloids are sometimes crude, they are not necessarily untrue. The document as spun by the UK Government is an absurdity, and what my piece does IS challenge that absurdity for what it is – an offence against common sense.

    Others better qualified for the task can pull it apart at the atomic level. I’m happy to merely mock the lunacy of its core premise.

      

  138. Cyborg-nat says:

    Graeme Cowie.
    Oh dear. Firstly Professor  Scheffer is wrong or mistaken and then Dr. Blick but you are not?
    Please enlighten me on how Dr Blick is mistaken.

      

  139. Rev. Stuart Campbell says:

    “I’m shifting no goalposts. The precedent of facilitating statehood has always regarded debt as an internal matter to be determined by the relevant parties (i.e. the Scottish Government and UK Government in this case).
     
    The very Wikipedia page to which you referred DESCRIBES uti possidetis juris as a principle and not a law. This isn’t me speaking. It’s the doctrine. It’s not a law.”

    I’m aware of what it says. You evade the point – one minute you’re citing precedents as evidence of what WILL happen, the next you’re saying “just because that’s tended to be done in the past doesn’t make it law”, ie that precedents are meaningless. You can’t have both of those. Pick one.

      

  140. M4rkyboy says:

    You do a poor impression of a YES voter Cowie.

      

  141. kininvie says:

    It’s depressing when people decide to shoot the messenger rather than consider what the message might have to say.
    The only point I am making, and shall now cease from making, is that today’s release by the UK govt is a deliberate setting out of a position designed to give them the whip hand. Whether that position can be challenged, or what effect it may have on the referendum I cannot say. But it is not a positive development for the Yes campaign, be sure of that.

      

  142. Albalha says:

    Feel a need to say, while I may not agree with GCowie, he did make clear in an early post he was both a YES voter and a Lib Dem member.

      

      

  143. Rev. Stuart Campbell says:

    “But it is not a positive development for the Yes campaign, be sure of that.”

    I beg to differ. Judging by the response so far, it’s generating Yes votes at a rate of knots.

      

  144. kevbaby says:

    @ Graeme Cowie
    Graeme, I think I follow your reasoning here, its about definition within international law and is one interpretation? Would it be fair to say that a different/opposing interpretation is that a yes vote would return scotland to its pre-1707 state? Is this plausible/arguable in a legal context? 
    I have to say I’d find it quite mad that we could sign up for something and then if we pull out we cannot return to the original status at the point we signed up. But I’m nae a lawyer… :-)

      

  145. Graeme Cowie says:

    Norrie: Thanks. I think it’s important that the Yes camp assume the most legally tenable position and then explain why that STILL means that the Unionists are arguing for something which isn’t the best arrangement available to us.
     
    Scottish_Skier: I am a Lib Dem because, the constitutional issue aside, I am philosophically a liberal and I believe on most things they are the most liberal party. They do believe in self-determination (they’ve backed Home Rule for over a century) but I do agree their actions are frustratingly inconsistent in respect of that debate (I argued forcefully for a second question in correspondence with Willie Rennie last year, alas to no avail). It was precisely this duplicity that pushed me into the independence camp within the last 18 months or so, becoming more and more frustrated with the lack of any real prospect for decentralisation of power and better ways of governing. In this respect I am very much a Patrick Harvie-style Yes voter, concerned only with what is instrumentally most useful to better government.
     
    James Coleman: If you want to go all ad hominem, feel free, but I’m not going to engage with it.
     
    Castle Rock: Of course I’m not suggesting that the independence negotiations are not constrained by reality. But what I do know is that it is both the norm and expected that we will take on a fair share of the national debt. This happened with the Irish Free State and the failure to agree led to a number of very ugly trade disputes and tariffs, so it’s important we get it right and do it amicably. This posturing about “no treaty obligations no debt” will get you nowhere in those obligations as they deal with entirely separate things.
     
    CyborgNat: he is mistaken because there has never been a case in international legal history, or any instrument of international law, stating that the break-up of a state into two parts makes both automatically inherit the treaty rights and obligations of the old state (which is what “coequal successor statehood” entails. Scotland will NOT share the permanent seat on the UN Security Council with rUK. The Czechoslovakian example re-enforces this point: both the Czech Republic and Slovakia had to reapply to join the UN. They did not automatically inherit UN membership from Czechoslovakia.
    Mr Campbell: No that’s not what I’m doing. I’m saying that there is no precedent supporting the view that Scotland will be relieved unilaterally of any debt or that it will inherit any legal obligations. There is further no evidence to suggest that it is sui generis or that the default rules regarding that will not be applied to Scotland.

    On the point of UPJ, it has not “tended to have been done in the past” on a consistent basis. It is merely a principle which has always and will come into conflict with other principles. It is not law, it is not a legal norm. It is a legal principle. Principles are not norms.

      

  146. Rev. Stuart Campbell says:

    “I’m saying that there is no precedent supporting the view that Scotland will be relieved unilaterally of any debt or that it will inherit any legal obligations.”

    Once again: make your mind up about whether precedent or law is the determining factor here. You’re the one highlighting the significance of the difference between them.

    It WOULD be interesting to know on what basis you place your opinion above that of Professor Sheffer, though. And again, for the avoidance of doubt, that’s not snark but a genuine query.

      

  147. Cyborg-nat says:

    Graeme Cowie .
    Thanks for your reply.
     

      

  148. DanTDog says:

    I really don’t understand why so many people are claiming to be astonished at the machinations of “Perfidious Albion”…let’s be sure about this, the English Establishment don’t play by any recognised rules of fairness, and wouldn’t accept Marquis of Queensberry himself as an advisor. They are only unveiling the attitude that they have sometimes disguised for centuries, ever since Edward  1…the “Hammer of the Scots”…they have treated Scotland as an annexation before and since the “Unions”, and are simply dropping the pretence with this document. I sincerely hope that this ploy doesn’t cause serious fury amongst the natives of North Britain, and that wise counsel shall prevail with reason coming to the fore instead of chicanery…but I won’t be holding my breath.
     
     
     
     

      

  149. Castle Rock says:

    @Albalha
     
    Yes I don’t agree with the arguments that he’s trying to use but good on him for entering into a lively debate.
     

      

  150. JLT says:

    As much as this is an own goal by Westminster (and Moore, Lamont and co must be spinning at this massive cock-up), I just have to say this …..I am SCOTTISH…not English. And god help the boy who says otherwise!!!!!
     
    I’d like to meet the Unionist MP that is brave enough to walk into the pubs in places like Easterhouse, Wester Hailes, Granton, Niddrie, Govan, West Calder, East Calder, Mid-Calder, Livi, Bathgate, Armadale, Shotts, Bents, Pumpherston, Broxburn, Uphall and every other place in Scotland, and go up to the first guy standing at the bar, and say, ‘By the way mate, You’re not really Scottish. You’re actually English, and I seriously mean that!’
     
    My money is then on the boy being down at A&E within 20 minutes getting 50 stitches added to the ‘cut’ on the right cheek after being tumblered….
     
    Scotland hasn’t existed since 1707 ….ma arse!!!!!

      

  151. Oldnat says:

    Graeme Cowie
    I agree with much of what you say – but that won’t come into effect until independence, and politics will determine what happens, not legal principles.
    Countries will act in their own best interests, and spite doesn’t come into such considerations. Prior to the referendum they might say one thing – afterwards something totally different. Realpolitik always triumphs.
    For now, the release of the Boyle/Crawford advice was a foolish step by the UK.

      

  152. Graeme Cowie says:

    kevbaby: Independence for Scotland CANNOT be achieved by in any sense “reversing” “repealing” or “amending” the Treaty of Union that formed the Kingdom of Great Britain. That Treaty provides that it shall have effect “in all time coming” and destroys the legal personality of Scotland. It’s a bit like two companies agreeing to become a new company. Say company A and company B decide to become company C. Once company C comes into existence, you wind-up companies A and B. They no longer exist. They cannot therefore simply “leave” and become company A or B again. The Kingdom of Scotland no longer exists so it cannot “resile from” the Treaty of Union.

    Any independence settlement can ONLY come from the international legal norms we have now, delivered through domestic law.

    Even if you could somehow argue that the Treaty of Union was not “perpetual” and you were restoring the Kingdom of Scotland and the Kingdom of England, such a reading would require an implied repeal of every single treaty signature that the UK had ever signed. So Scotland wouldn’t be a “co-equal successor state” but a “co-equal predecessor state”. Neither body would be a member of ANY international body formed after 1707 by default, and would have to negotiate pretty much, uh, everything from scratch. That’s not what’s going to happen.
     
    Put simply, as of 1707, there ceased to be a legal “we” for Scotland in international law.
     
    Mr Campbell: Precedent is a source of law. Do you understand how international law works? Precedents form a legal norm. Legal norms can only be overridden by international statute (i.e. a treaty).
     
    I base my response to Prof Scheffer on the lack of legal precedent AND the terms of the Vienna Convention, which expressly contradicts what he says.

      

  153. Cyborg-nat says:

    Graeme Cowie.
    You state;
    ” Scotland will NOT share the permanent seat on the UN Security Council with rUK. The Czechoslovakian example re-enforces this point: both the Czech Republic and Slovakia had to reapply to join the UN. They did not automatically inherit UN membership from Czechoslovakia.”
    By precedent then the rUk will not inherit the UK  UN membership then or the Security Council seat then?

      

  154. Graeme Cowie says:

    Delightful as it has been talking to you all, I shall take my leave as I need to read about secret courts for a seminar tomorrow. Goodbye for now.

      

  155. muttley79 says:

    @Graham Cowie
     
    Was your name in the papers about being a Lib Dem, and supporting independence or was that someone else?  What are you’re views on the referendum?
     
    @M4rkyboy
     
    Fuck England
    There,i can safely say that now.
    And Fuck all you ‘Scots’ that want us to be ruled from there. 
     
    Pfft,fuck the SNP and their moderate Nationalism as well.
    We need ultra-nationalists fighting Scotlands corner.Not the gutless SNP.
     
    Seriously what are you thinking about with these posts?  Are you really a independence supporter?
     

      

  156. Angus McLellan says:

    @Graeme Cowie. You wrote: However, as part of the domestic settlement, [the Irish Free State] was required to make a 60-year payment to the UK in-lieu of its share of the national debt, in exchange for which the UK would take on the burden of the debt itself. I’d imagine something similar would happen in Scotland’s case.

    Ireland’s “fair and equitable” share of the huge UK debt was ultimately £0 0s 0d paid off over 0 years.  Now there were contributory factors to that outcome – like this one: http://en.wikipedia.org/wiki/Irish_Boundary_Commission – which don’t have any obvious counterpart today, but that’s another story. Hansard records Lord Arnold praising the “Bill which abrogates Article 5 of the original Treaty and relieves the Irish Free State from liability in respect of a contribution to our National Debt and in respect of a contribution to the cost of War Pensions”. [At http://hansard.millbanksystems.com/lords/1925/dec/09/ireland-confirmation-of-agreement-bill]

    The deal to which you refer did not relate to the UK national debt. It was payment in compensation for property damages in the war, the principle of which had already been agreed to by the Dail although the original amounts foreseen were less. Now it could be called a quid pro, and some critics of the deal called it just that in the Dail debates, but you’ll never please everybody. If we’re going to pretend that all the money paid by the Free State to the UK was somehow related to the national debt, then the totals would be far greater as we’d have to include the land purchase annuity payments, which ran to millions a year in the 20s. But a trawl through Hansard shows nobody on the UK side making such a claim.

      

  157. Graeme Cowie says:

    A quick addendum to Cyborg_Nat: The UK will, because, as I stated earlier, it will both seek to be, and will be recognised as, the successor state. In the same way that Russia was recognised as the successor state of the USSR. The Czechslovak case is LITERALLY unique in that neither state sought to be recognised as an automatic successor state. That meant you had NO successor states, not two successor states.

    The overwhelming norm is that at least one state will seek to be recognised, under the Vienna Treaty and precedent, as the successor state, and in the UK case it’s about as watertight as you can get that it will be recognised as such, if for no other reason than to avoid massive turmoil in the UN Security Council.

      

  158. Graeme Cowie says:

    Angus McLellan
     
    Very briefly, I refer you to http://en.wikipedia.org/wiki/Anglo-Irish_Trade_War particularly the section on the London Agreement of 1925. Relief from public debt obligations was contingent on the payment of other duties outstanding: i.e. it was a matter to be determined by domestic negotiation rather than on a point of international law, which was my broader point.
     
    No I *really* must go. Too much to read!

      

  159. Cyborg-nat says:

    Thanks Graeme for a lively and interesting discussion.

      

  160. Colin Dunn says:

    @Graeme Cowie
    ” None of the international rights and obligations under ANY treaties signed by Czechoslovakia were automatically assigned to either the Czech Republic or Slovakia.”
    According to a poster on anther thread on WoS, Slovakia wrote to the UN explicitly stating they’d abide by existing Czechoslovakian treaties after independence. Is that incorrect?
    From the UN archives 
    “In a letter dated 19 May 1993 and also accompanied by a list of multilateral treaties deposited with the Secretary-General, received by the Secretary-General on 28 May 1993, the Government of the Slovak Republic notified that:
    “In accordance with the relevant principles and rules of international law and to the extent defined by it, the Slovak Republic, as a successor State, born from the dissolution of the Czech and Slovak Federal Republic, considers itself bound, as of January 1, 1993, i.e., the date on which the Slovak Republic assumed responsibility for its international relations, by multilateral treaties to which the Czech and Slovak Federal Republic was a party as of 31 December 1992, including reservations and declarations made earlier by Czechoslovakia, as well as objections by Czechoslovakia to reservations formulated by other treaty-parties.
    The Slovak Republic wishes further to maintain its status as a contracting State of the treaties to which Czechoslovakia was a contracting State and which were not yet in force at the date of the dissolution of the Czech and Slovak Federal Republic, as well as the status of a signatory State of the treaties which were previously signed but not ratified by Czechoslovakia as listed in the Annex to this letter.”

      

  161. Graeme Cowie says:

    That letter is saying that it is “adopting” those rights and obligations unilaterally to the extent it is possible for it to do so. Nevertheless, Slovakia and the Czech Republic were admitted to the UN as new, i.e. non-contiguous, states. The point of international law doesn’t turn on what they as states consider themselves to be bound by, but what the international bodies deem them to be: new states or the same state as the old one.

    Put simply, Scotland could not write to the UN saying “we consider ourselves bound by all the treaties of the UK” then swagger into the UN Security Council and veto a motion on intervention in Syria.

      

  162. Rod Robertson says:

    Rev ,another brilliant article, we have to get this out to everyone though ,not  just the committed like us on here.
    Not just an “Atomic Bomb”  this is McRone Mk11

      

  163. Marcia says:

    a new thread has started.

      

  164. sneddon says:

    So in conclusion the paper was just a load of whataboutry and bawbaggery then?
     
    Lawyers can only give opinion and in  the real world politics and pragmatisim rules in the end.  But I fair enjoyed the discussion tonight.  Learned things I never knew (or thought I knew).
    @M4arkyboy- simmer lad, that’s the kind of talk that gets you noticed by our ‘friends’ in SB(evening all),  Remember, deep breath and breath out :)

      

  165. Rev. Stuart Campbell says:

    “Once company C comes into existence, you wind-up companies A and B. They no longer exist.”

    You seem considerably more certain of that than the learned professors who produced today’s document. Two more, then, to add to the growing list of international law professors you know international law better than.

    “Precedent is a source of law. Do you understand how international law works?”

    Sigh. You persist in missing my point. I’ve been a participant in a few court cases, which I suspect you haven’t, and used precedent successfully, so I’m reasonably well acquainted with the principles. What I’m objecting to is your inconsistency in at one moment saying “precedent makes law” and the next moment saying that it is subordinate to law.

      

  166. Training Day says:

    Ah, the lawyer’s unshakeable faith in the sanctity and unassailability of abstract principles.

    Shame those abstract principles were ignored when the UK invaded Iraq, eh?

      

  167. H Scott says:

    Graeme Cowie
    Now you’ve got our attention perhaps you could tell us what ‘law’ you are studying and at what level: undergraduate or postgraduate, general law or international law; how far you are in your studies; and whether you’re also studying politics: undergraduate or postgraduate, general or international. Purely for the sake of establishing what your significant contribution to this thread is based on.
     

      

  168. Rod Robertson says:

    What is truly amazing is that they published this and obviously did not either read it ,or understand it.
    They obviously did not brief the Prof or he would not have said what he did regarding timescales EU ,UN etc.
    It is gobsmacking ,how could they be so inept?
    The only way we can lose this referendum now is if some “Glenrothes/ Dr David Kelly” antics take place.
    Not even their tame media can hide this gross stupidity.
    I am beginning to believe the conspiracy theories that Cameron is trying to lose the referendum to rid Westminster of 40 odd Labour Muppets

      

  169. M4rkyboy says:

    Ah ahm F-ing beilin Sneddon pal.
    I know enough of my history and i have said this for years that Scotland bears the hallmarks of an annexation rather than a union.
    When the Scots in the commons tried to get out of the ‘union’ circa 1712 the speaker said something along the lines of ‘England has prevailed,Scotland has been cached and cached good’.The motion for Scotland to withdraw was voted down and here we find ourselves.

      

  170. Graeme Cowie says:

    Mr Campbell: If indeed they are saying that it is not clear that the Treaty of Union dissolved the Kingdom of Scotland then I do know more about this than them, yes.

    And actually, I too have been involved in a number of court cases (through working for two bodies over the summer, one commercial, one non-profit institution) in which I have had to use precedent. Anyone who understands law understands that there is a hierarchy of laws. The common law arises out of the entrenchment of the principles and customs and evolution of norms to consistent ends. Statutes (in the international context, treaties) expressly override precedents.
     
    H Scott: I am a senior honours law student specialising in Public Law (mainly Constitutional Law and Human Rights). My degree programme is a joint honours one with politics. I graduate this summer.
     
    Now please, all of you, let me get back to my work for my seminar tomorrow. Bye for now.

      

  171. JLT says:

    Two points here. 
     
    First - the ‘supposed carve up of Scotland’
    I believe that Salmond and Cameron are chatting away to each other behind closed doors. Both know already what is to be given and taken. If Salmond actually thought that Westminster was about to do a serious hatchet job on Scotland post-indy, then he would be screaming from the rafters right now. He would be demanding that Cameron publicly tell the Scots exactly what is going to happen, and if it was true, then I believe Scotland would go nuts. It would be a hornet’s nest, and Independence would be in the bag guaranteed.
     
    Secondly – Nationhood
    Scotland is a nation, just as England is. Scotland and England have borders. We have our own laws which over-ride the laws of the UK, the people are Scottish, and therefore believe in the land called Scotland. If there was serious doubt here, I believe Salmond would once again be screaming from the rafters, and demand that Cameron tell the Scots that Scotland lost its nationhood in 1707, that it has never existed since 1707, and is actually called ‘England’. Once again, all Scots would go nuts, it would be a hornets nest once more, and Independence would be in the bag guaranteed. Even die-hard Unionists would find this one hard to take (yir no Scottish!!).
     
    Seriously…
    I think this document today is the first round in a game of poker. The Westminster Unionists have placed a card on the table, and they are basically hedging their bets for a better deal come the break-up.
    I know I have said this before, and I know the Rev wanted to me to have a bet with him, but I still believe that this is the way it will go…
     
    1. Scotland will gain 80% of the oil fields.
    2. In exchange for 20% of the oil fields which go to rUK, Scotland will gain key seats on the Bank of England
    3. Scotland will inherit 10% of the debt, not 13 – 15%.
    4. For this lower debt, Scotland will allow rUK to use Faslane until a new Port is developed at Portsmouth or in Wales. This will take years! The difference in 3% from the debt is for payment to use Faslane.
     
    The key reasons why Scotland will still be integral to the rUK post-indy.
    1. Having Scotland not using the £ will crash the £. If Scotland pulled out from the £, then the deficit from the huge amounts of ‘missing money’ as well as ‘lost assets’ to Scotland will crash the £. It would be the end of the Bank of England. Make no bones about this. Scotland taking all its assets out of the rUK will kill the £ big time. The EU would gleefully join in if it was to f*** up Britain, and force them into the Euro, as well as keeping them in the EU.
    2. If rUK pulls out of the EU, but a post-indy Scotland is still in the EU, the rUK will use Scotland as a backdoor to still getting things sold in the EU. It’s a win-win situation for the Tories and UKIP. They get the best of both worlds.
    3. It stops this pish wishful thinking from companies in Scotland saying they’ll leave if Scotland is independent. If Scotland is still in the EU while rUK are out of the EU, then the big financial companies will stay put in Scotland, as they really WILL have the best of both worlds (with HQ’s in Edinburgh, still being in the EU, and being involved in god knows what dodgy deals in London). 
     
    That’s what I think….

      

  172. rapid says:

    Despite the spirit of youthful enthusiasm on this blog between pints of snakebite; there is a serious message.  That is that the ‘easy bit’ is the yes vote, the real work is the negotiation afterwards.  I see todays UK statement as nothing more than an opening negotiation position.
    Rev Stu is doing good work, but attempting to pull it apart ‘legally’ from either side is fruitless.  However, the indy side need to look very carefully at it because it will show weaknesses and strengths  in the BT argument and will help later.
    It would be silly, but one could easily write an alternative where the roles were reversed and England becomes a new state and Scotland the successor (plus Scotland retains the square mile in The City of London) etc etc.  I.e. only a negotiation position.

      

  173. James Coleman says:

    Graeme Cowie
    “James Coleman: If you want to go all ad hominem, feel free, but I’m not going to engage with it.”
    I certainly was not going ad hominem. I was pointing out to members of this site, some of whom have been taking you all too seriously, that you are a 21 year old STUDENT lawyer and as such have no serious standing in the Legal Profession. Thus you do not have the credibility that would enable us to take your views on the matter seriously. And I would  emphasise that what you write are your views alone, many of which do not accord with the views of many Professors of Law.
     

      

  174. Graeme Cowie says:

    And many agree with me. However, the Romans had an expression which is apt here:
     
    argumentum ad verecundiam
     
    I’ll leave that with you, James.

      

  175. Rev. Stuart Campbell says:

    “4. For this lower debt, Scotland will allow rUK to use Faslane until a new Port is developed at Portsmouth or in Wales. This will take years! The difference in 3% from the debt is for payment to use Faslane.”

    I agree that Scotland will allow the rUK to use Faslane for a few years for that reason. However, if Scottish negotiators sell it that cheaply, and give away a tenth of our oil into the bargain, I will string up their lifeless burned corpses from a lamp-post myself.

      

  176. Rev. Stuart Campbell says:

    “If indeed they are saying that it is not clear that the Treaty of Union dissolved the Kingdom of Scotland then I do know more about this than them, yes.”

    That wasn’t what either I or they said. They said that Scotland was definitely dissolved, but that it was arguable whether England was too. What you said and I questioned was:

    “Once company C comes into existence, you wind-up companies A and B. They no longer exist.”

    My emphasis.

      

  177. muttley79 says:

    I think one area that has been overlooked today is confirmation that the No campaign have said there will not be a specific devolution plan laid out to voters.  Therefore, they are going to go into the referendum telling voters to vote No with a very vague promise of Jam Tomorrow.  Sound familiar?  Salmond has 20 months to taunt then about 1979!

      

  178. Graeme Cowie says:

    And finally, but very briefly, Mr Campbell!
     
    The dispute in the document is whether the Union was a case of A and B agreeing to create company C, shifting all the assets to C then winding up A and B, or a case of A buying all the assets of B, winding up B and writing a new set of rules for governing how A is run to account for having all of B’s stuff.
     
    What is clear in both scenarios is that B no longer exists. What I was saying in the analogy is that even the “Treaty” reading, on which most indy arguments of the sort you claim rely, necessitates that Scotland no longer exists in terms of international legal personality. Whether England does (and the UK is essentially England renamed) is a more open question, but I’m minded to reject it. Is that clearer?
     
    I’m off. Bye.

      

  179. muttley79 says:

    Graeme you have work to do for tomorrow lad…

      

  180. Daisy says:

    Rev,
     
    Fascinating article.
     
    I’m content for Scotland to be a Kingdom
    I’m sanguine about England being a Country,
    You need a King to rule a Kingdom and a *%#} to run a Country!
    I predict a riot!
    D

      

  181. JLT says:

    Rev,
    I agree that Scotland will allow the rUK to use Faslane for a few years for that reason. However, if Scottish negotiators sell it that cheaply, and give away a tenth of our oil into the bargain, I will string up their lifeless burned corpses from a lamp-post myself.
    The thing is Rev, that I can’t believe for a second that the rUK won’t want Scottish Financial ministers on the BoE board. The rUK gov as well as the BoE would want to know exactly what is going on in Scotland, and the only way they can do that is to have us in the room, sitting with them. This is where I think they will dangle a carrot in front of the YES campaign and say that will be treated like an equal partner on the BoE board …but…for those key seats, a portion of the oil will have to be given up.
    I just can’t see how we can have everything, Rev. If we do take everything, and say we are not sharing, then I think Westminster will make life as difficult for the Scots as possible. They are past masters at this, and did it to us before (Darien Scheme – England and its colonies refuse to trade with Scotland). Westminster WILL find ways to haunt us if we don’t share at leats some of our toys.
    Seriously…from that list I had in the previous post. Right now without thinking …would you accept that deal and all those conditions for an Independnet Scotland?
    Rev. Stuart Campbell
    but wwewww
    But as you

      

  182. ronald alexander mcdonald says:

    Don’t get excited about the drivel produced today. It’s pish!
    It’s purpose is to deflect from reality. After the YES vote both sides will l have to negotiate, as both sides will have recourse to the International courts to settle disputes, if necessary. That concentrates the mind.  Hence their deflection, as it will mean two sides negotiating as equals.

      

  183. JLT says:

    Rev,
    I agree that Scotland will allow the rUK to use Faslane for a few years for that reason. However, if Scottish negotiators sell it that cheaply, and give away a tenth of our oil into the bargain, I will string up their lifeless burned corpses from a lamp-post myself.
    The thing is Rev, that I can’t believe for a second that the rUK won’t want Scottish Financial ministers on the BoE board. The rUK gov as well as the BoE would want to know exactly what is going on in Scotland, and the only way they can do that is to have us in the room, sitting with them. This is where I think they will dangle a carrot in front of the YES campaign and say that will be treated like an equal partner on the BoE board …but…for those key seats, a portion of the oil will have to be given up.
    I just can’t see how we can have everything, Rev. If we do take everything, and say we are not sharing, then I think Westminster will make life as difficult for the Scots as possible. They are past masters at this, and did it to us before (Darien Scheme – England and its colonies refuse to trade with Scotland). Westminster WILL find ways to haunt us if we don’t share at leats some of our toys.
    Seriously…from that list I had in the previous post. Right now without thinking …would you accept that deal and all those conditions for an Independent Scotland?
    Rev. Stuart Campbell
    but wwewww
    But as you

      

  184. mark piggott says:

    @G Cowie on your blog page you have a saying
    “too many twits make a twat”
    from your over excited legally obsessed posts on here today, I’d have to ask
    “how many exactly?”
    the answer one springs to mind.

      

  185. Boorach says:

    I’ve got a headache with all this legal talk.
     
    International law…. what international law existed in 1707 when two separate countries entered into a ‘union of equals’ and what was the international body setting such laws?

      

  186. Ananurhing says:

    Oh joy! Another Libdem with a total disregard for liberalism and democracy, telling the rest of us how it’s going to be.
    How credible is that?

      

  187. Callum says:

    don’t be too harsh on the lad.  When Graeme graduates – he and his classmates will be very much in demand during the constitutional debate, we will need hot young legal minds to make sure that Scotland gets a good deal out of the negotiations.
     

      

  188. kevbaby says:

    @ Graeme Cowie
    Thanks for the response. I am still of the opinion though that as we signed up as equals we should be able to split as such, otherwise the whole thing has little legitimacy at all. I suppose we can always go for the UDI approach if they get a bit Longshanks on us, time will tell……
     

      

  189. The Man in the Jar says:

    @ Graeham Cowie
    What a jumped up little arsehole!
    Thank F**k he is away!
    May the fleas of a thousand camels infest his armpits!

      

  190. Macsenex says:

    Mr Cowie omits something about Scots Law. Before the Union precedent was not a predominant feature of Scots Law. Precedent only appeared undr the influence of English Law.

    Principle was always the dominant feature of Scots Law.

    That doesn’t get us anywhere in the current debate because the law is a crutch for those who are arguing one way or another.

    The independence settlement will not be based on law but purely the negotiating skills of the parties concerned. On an international level this will be moderated by the views of other states.

    The UK has form in the eyes of many states, and it is not outwiththe bounds of credibility that many may use Scottish Independence to get even.

    What if most South American states sought to use opportunity to promote Brazil to the Security Council before they recognised Little Britain. Similarly India and even Germany will have something to say.

      

  191. Stakhanov says:

    @Graeme Cowie
    give up now, don’t bother graduating in law. In 20 years you’ll wish you’d done ANYTHING else. Trust me, I’m an ex-lawyer, now very happy…

      

  192. John Reid says:

    Should the referendum question be changed to read “Should Scotland be an Independent State” and not an independent nation.

      

  193. It seems to me that the reason the opinion goes into these implausible contortions is that ANY other scenario requires Scotland be considered a signatory to an international treaty, and inevitably leads down the road of dissolution to the end of the United Kingdom.
     
    It also means of course that both Scotland and England would be treated as successor states, and therefore both would have to renegotiate terms with the EU, from within the EU.
     
    THAT was the can of worms this half-baked confection is meant to keep tightly shut.

      

  194. Indy_Scot says:

    The bottom line is this has opened a can of whoop ass.
     
    The UK Government has openly stated that Scotland is not an equal partner in the union. So either Scotland corrects this next year, or there will be an elephant in the room from now on in.

      

  195. Stuart Campbell: “I agree that Scotland will allow the rUK to use Faslane for a few years for that reason. However, if Scottish negotiators sell it that cheaply, and give away a tenth of our oil into the bargain, I will string up their lifeless burned corpses from a lamp-post myself.”
     
    Well in that eventuality I think you’d have to get in line ’cause it’s gonna be a long queue.

      

  196. The were a number of the NO camp cognoscenti  on twitter trying to moon walk away from this without much success given the unambiguous nature of the opinion. They were getting roasted.
     
    They don’t like it up ‘em – so much so that my twitter account has been suspended and I suspect nefarious doings by the “Better Subsumed” camp.

      

  197. DougtheDug says:

    The question at the moment is what treaties, if any, will still apply to an independent Scotland.
     
    What matters is not what the UK Government or its advisors think but what the other states in Europe and members of NATO think and on that point the UK Government still has not formally asked the EU for an opinion on the status of an independent Scotland in the EU.
     
    If an independent, treaty free Scotland emerges outside both the EU and NATO then that is going to cause big problems for both institutions.
     
    The EU will lose 66% of their oil production and the extremely productive North Atlantic Fishing grounds around Scotland. The EU’s northern fishing grounds will stop at Berwick on the east and Donegal on the west.
     
    NATO will have lost contact with a state which controls the southern border of the GIUK gap. The two straits between Greenland, Iceland, and the current United Kingdom which are the main Russian routes out into the North Atlantic.
     
    Bonn, Paris, Washington, Stockholm and Rome aren’t going to give a toss what the London thinks, they will happily and eagerly declare that the existing treaties still apply subject to Scotland’s changed circumstances.

    Graeme Cowie has come up with some interesting opinions but it is not going to be about law and precedents but all about international politics.

      

  198. Rod Robertson says:

    I disagree with some of the suggested negotiating posts.
    What is most important to Little Britishers is  the Security Council  Permanent Seat and pretending to themselves that the Spitfires are still over the White Cliffs and they are still a major power.
    The Oil is not as important to them ,the Tridents are ,and these are our trump cards.
    If they cannot negotiate with us to take them it is my understanding (although the lawyer here can correct me if I am wrong) that under the Non Proliferation Treaty they cannot be removed they have to be decommissioned.
    Ruk will not want that ,they would agree to almost anything to prevent losing their nuclear toys.
    The problem it gives SNP is they would be slaughtered by their members and surely lose the 2016 election if they cede one inch on the WMD.
    It is real world ,and it is real politik , Alex and Co will have hard choices to make.

      

  199. James Coleman says:

    Graeme Cowie 
     
    argumentum ad verecundiam”
    The expression  argumentum ad verecundiam is not in the least apt here. I am not arguing that the learned YES professors views carry more weight than the learned NO professors views since it is a fact that they disagree. But both of their vews certainly carry more weight than your views since theirs are based on many years of experience of reading and practising Law, while your views are only those of a 21 year old student who has yet to obtain any law qualification. However to read your screeds one would think that the NO views had prevailed.

      

  200. pa_broon74 says:

    Just read about 180 posts, many of which with a strong legal bent to them. I’m grateful for Graeme’s input but you should really let the fellow get some sleep. Beyond what’s been said, I still think the document we’re all referring too is a puff piece because all this legal gimcrackery* is for naught  if people vote yes in 2014, negotiations will start and I think we all agree, its in everyone’s interests for them to be conducted efficiently.
     
    Telling people the country they thought they belonged didn’t exist (even if in legal circles that isn’t what’s being said) will cut no ice, its what folk will hear and will in turn inform their voting intentions, in that regard, the report today is a bit of a shot in the foot for the Union.
     
    Its already been said, nip into most pubs, try and tell people they’re not Scottish but actually English but its ok because its just a legal thing so nothing to worry about – I think they’ll take issue with what you’re saying… Unless of course they’re Polish, which a lot of folk are these days…
     
    Good chat though…

      

  201. Rev. Stuart Campbell says:

    “The problem it gives SNP is they would be slaughtered by their members and surely lose the 2016 election if they cede one inch on the WMD.”

    I think people will grasp reality, as long as there’s a clear and concrete date for removal, and it’s not too far off. It IS a tricky one, and my hunch could well be utterly wrong, but my feeling is that it’s MUCH too valuable a bargaining chip to throw away. Without it, we do indeed risk being somewhat steamrollered in the negotiations, and at the end of the day they’re simply not that big a deal. There isn’t going to be a nuclear war. Let the baby have his bottle for a while if it stops him griping.

      

  202. The Cat says:

    I think Graeme was just trying to alert us to the possibiliities – not trying to wind us up.
    Positive note: The Panda was hopelessly inadequate tonight on STV and BBC, 1400 treaties? The quantity is getting lower every time it’s spoken about! When asked if Scotland ceased to exist re 1707 he replied YES…but Czecholovakia is not relevant etc (rapid but vacuous change of subject). Get it on iplayer and study the change of facial expression and tone/heavy breathing. I agree with some of Graeme’s points eg we MAY have no protection/rights until we apply for statehood but so what? Keep/Stay on message!!
    Small population/big assets/big potential/big aspirations – negotiations necessary.
    Bring it on!

      

  203. Rev. Stuart Campbell says:

    “I think Graeme was just trying to alert us to the possibiliities – not trying to wind us up.”

    Aye. I just think a student insisting that he knows better than some internationally-renowned experts on the subject isn’t the way to go about it. I have no doubt Graeme knows more about the subject than me, but I’m going to need a lot more convincing before I attach greater weight to his view than to Professor Sheffer’s.

      

  204. The Cat says:

    I abosolutely agree that he knows less than Prof Scheffer et al but if we’re going to war we need to consider all intelligence. Selective use of intelligence in war is how you lose. Groupthink et chttp://en.wikipedia.org/wiki/Groupthink
     
     

      

  205. The Cat says:

    Apologies for the formatting error (too much vino veritas). Tried to fix but couldn’t. Anyhoo, you get the idea,,,propaganda – worries about groupthink and abolute rebuttal of ideas etc
    The main thing is we stick  to the inalienable truth.
    Fear the NO vote.
     
     

      

  206. jon abroad says:

    A very interesting discussion – again.
    Both sides are going to roll out their well-known and respected legal experts to bolster their positions. But simply crowing “my well-known and respected legal expert knows more than yours” isn’t going to get either side far. As others here have calmly pointed out, it’ll all boil down to realpolitik.
    What I don’t get is the bitching from posters with nothing better to add than invective. Luckily the names don’t seem to be those of regular posters. Perhaps a 21-year-old law student knows kess than Prof. Sheffer, but I’d rather listen to his views on international relations than to, for example, a 57-year-old unemployed ex-railwayman. Now no-one would ever suggest that the latter had no right to express his opinion. So cut the crap and get back to civil discussion.

      

  207. Rev. Stuart Campbell says:

    “Now no-one would ever suggest that the latter had no right to express his opinion.”

    Nobody suggested that about Graeme either. There’s only one arbiter of who gets to express their opinion here – me. And the answer is “Anyone who isn’t a spammer, a persistent troll or a complete lunatic.” Adults robustly disagreeing with each other is entirely acceptable.

      

  208. silver19 says:

    Graeme lad get yourself down to help in westminster they are signing some legal document that BBC news site are reporting on “The legal agreement for the Scottish Parliament to organise an independence referendum is to be rubber-stamped later in London.”  :-http://www.bbc.co.uk/news/uk-scotland-scotland-politics-21420998

      

  209. Chic McGregor says:

    I must congratulate Mr Cowie on his grammatical and spelling accuracy, but above all on the sheer volume of his output.  ;)

      

  210. Matt says:

    Before I start, I should point out that I have only read up to comments made before 8pm.

    This has to be the most depressing discussion I have ever seen on here. First of all, it seems clear that many things we took for granted are not true, and that if we do vote for independence then our strength in negotiation with the rUK will be much weaker than we had thought.

    And secondly, Rev Stu has proven once and for all that he just cannot acknowledge that something he said was incorrect. Seriously, grow up. You’re right to say that realPolitik trumps law, but that doesn’t change the fact that law ultimately defines the strength of each party’s hand in negotiation.

    I really really really hope I am wrong when I say that today has been a dark dark day for our movement.

      

  211. Chic McGregor says:

    Much as lawyers would like to portray the idea that laws are immutable they are in reality subject to continual evolution.
    International law on the matter of new states coming into being (usually by secession although that term itself is not sufficiently defined for universal agreement) is a case in point.  The big picture history of the post war decades until the present is the balance between two conflicting principles.  One is the principle of ‘Territorial Integrity’, somewhat of a dinosaur of the imperial age and the other is the principle of the right top self determination.
     
    The balance in that struggle has slowly, but inexorably, swung from the former to the latter.
     
    Initially, secession was only considered legal for former colonies, then this was extended, although disputed/ignored, to other forms of union.  The concept of non-colonial secession gained strong currency and was no longer able to be ignored sometime around the early 90s especially in the context of the breakup of the Eastern bloc.
     
    Most recently, even the unilateral secession of Kosovo although vehemently opposed by Serbia, who strongly cited the Territorial Integrity defence, was adjudged by the ICJ to be not illegal.  Kosovo has been recognised by most Western nation states (including the UK) although admission to the UN has still not happened due to objection by largely non developed countries.
     
    The point is that legal interpretation is by no means a fixed thing.
     
    The unique new ‘by agreement’ constitutional models developed in Canada and the UK specifically to deal with the threats of Quebec and Scotland becoming independent, have as yet been untested and will remain so until such time as either Quebec votes Oui and Toronto says Non, or Scotland votes Yes and London says no.  As will the self-appointed ‘final word’ constitutional competencies of the Human Rights courts set up to bolster their positions.
     
     
     
     
     
     

      

  212. CameronB says:

     
    Well, I certainly enjoyed that ding-dong. Thank you Graeme, your informed opinion certainly added spice to what can sometimes be a somewhat one-sided discussion here on WOS (no criticism implied Rev.). Thank goodness there are other here who in addition to being well informed, have years of “real life” experience over your own couple of years training(?). This is in no way a criticism of yourself or your achievements, it is simply a deduction from your age and professional status. Stick in and I might vote for you some day.
     
    re. The legal advise published today. It is an opinion sponsored by the Westminster government, and will have been commissioned in such a manner as to set a desired “field of play” in Westminster’s favour. Wellington did not triumph at Waterloo because he had superior forces, he won because he was able to choose the ground that best suited his objective. To expect anything less from Westminster would be foolish, as I think the SG would be if they did not have their own legal experts picking through it with a fine tooth comb. I do not support any political party, but I am thankfully confident in the SG’s competence to make sure that this is carried out, and to cry foul if any is committed.
     
    re. The Bank of England. If Scotland contributes 8% to UK plc., does it not follow that we bought 8% of the BoE when it was “nationalised”?. Is it really in Westminster’s gift to flog us seats we have already bought?
     
    re. Trident. I think the USA will have some input into what will be done with that poison chalice.
     
    Vote Yes in 2014.

      

  213. David W.Ferguson says:

    It appears that the UK Government’s much-vaunted “independent advice” on the status of an independent Scotland is no longer available to the public. I am getting:
     

    This attachment is being virus checked.
    We are currently holding this attachment in quarantine until it has been virus checked. The attachment will be available at the original location shortly.

     
    I hope someone has a full copy of the document as it originally appeared, to see what amendments might have been made while it was being ‘virus-checked’.

      

  214. weefoldingbike says:

    Treaty of Edinburgh–Northampton – Wikipedia, the free encyclopedia
    From 1328…
    “shall belong to our dearest ally and friend, the magnificent prince, Lord Robert, by God’s grace illustrious King of Scotland, and to his heirs and successors, separate in all things from the kingdom of England, whole, free, and undisturbed in perpetuity, without any kind of subjection, service, claim or demand.”

      

  215. Rev. Stuart Campbell says:

    “This has to be the most depressing discussion I have ever seen on here. First of all, it seems clear that many things we took for granted are not true, and that if we do vote for independence then our strength in negotiation with the rUK will be much weaker than we had thought.

    And secondly, Rev Stu has proven once and for all that he just cannot acknowledge that something he said was incorrect. Seriously, grow up. You’re right to say that realPolitik trumps law, but that doesn’t change the fact that law ultimately defines the strength of each party’s hand in negotiation.”

    Hang on – where did I say anything that contradicts that? I pointed out some hypocrisy/goalpost-shifting in Graeme’s position, but I don’t recall ever saying that law was irrelevant. I merely said that at the end of the day realpolitik trumps it, a statement you appear to agree with. So what have I said that’s not just incorrect, but apparently the most depressingly incorrect thing you’ve ever read?

      

  216. Doug Daniel says:

    The thing about Graeme’s comments is that, although illuminating and intriguing, they highlight the propensity of law scholars to get a bit caught up in legalese, as well as partaking in never-ending discussions about whose interpretation of the exact same set of circumstances is most correct.
     
    If the world was run by lawyers, nothing would ever get done. It’s why any process that involves lawyers gets dragged out, as both sides battle to show whose “interpretation” of the law is most correct. Court cases are decided not by lawyers, but by judges or juries. Lock two lawyers in a room and tell they can come out when they’ve agreed upon a single interpretation of a set of facts, and they’ll die of starvation. Law is not a science, therefore we always require a final arbiter to say “okay, you’ve said your pieces, now I’ll decide who I think is right”.
     
    In a court case, the final arbiter is a judge or jury. In the case of independence, the final arbiter will be the Scottish and UK governments, who will sit down with their conflicting legal opinions, and then work out what’s ACTUALLY going to happen – and the end result will almost certainly not look like either side’s legal opinion.
     
    (Which is just a long-winded version of agreeing with Stu that realpolitik always wins out.)
     
    We saw this earlier in the independence debate when numerous law bloggers waxed lyrical at long length about the various ways in which the referendum could (and couldn’t) take place, and the possible legal outcomes from each avenue, including potential never-ending court cases. In the end, it was all sorted by politicians sitting down and negotiating, and the result is we have an agreement between both governments to abide by the result, whatever it is. Eight months of legalese gum-bumping was made completely irrelevant by a couple of signatures.
     
    But will that stop lawyers and law scholars spending the next 18 months droning on about every aspect of the independence debate, trying to prove that their opinion is the correct one, despite the existence of other opinions contradicting them? Of course not – it’s their job!

      

  217. semus says:

    I find the name and term rUK ugly,inelegant and somewhat rude,I prefer my name as the Former United Kingdom  FUK, Says it all really.

      

  218. Matt says:

    Rev Stu,

    You tried to claim that none of this really matters because realPolitik trumps law – the premise is correct but the inference is not valid. If we have no protection in international law, do you really think the UK Government are going to flinch from taking all the assets and leaving us in a pile of debt just because we say “but that’s not FAIR”? By that point, they and their friends will have spent over two years warning us not to do it. In their minds, it won’t be unfair because they warned us. And also, the current UK Government doesn’t know the meaning of the word “fair”. If anyone doesn’t know that yet then they really haven’t been paying attention.

    Anyway, I really hope Graeme’s interpretation is wrong, but his kind of hairsplitting CAN be important, and I would like to see someone actually engage with his arguments – I get enough straw men, ad hominem attacks and “blah blah blah I’m not listening” from the MSM.

      

  219. So we see by all these different opinions that it is all down to interpretation,if internationally Scots law was recognised by international courts i.e. Lockerbie,then the law system exits ergo the country must exist to sustain that law.

      

  220. Rev. Stuart Campbell says:

    “Anyway, I really hope Graeme’s interpretation is wrong, but his kind of hairsplitting CAN be important, and I would like to see someone actually engage with his arguments – I get enough straw men, ad hominem attacks and “blah blah blah I’m not listening” from the MSM.”

    In fairness, he got both. I don’t like ad-hominem stuff here and try to discourage it, but I’m not going down the road of censorship because I don’t like the way someone expresses themselves, because that’s a dark road.

    “If we have no protection in international law”

    I disagree that we have no protection in international law. The UK Government’s document yesterday is two people’s opinion. Other opinions are available.

      

  221. Rev. Stuart Campbell says:

    “The thing about Graeme’s comments is that, although illuminating and intriguing, they highlight the propensity of law scholars to get a bit caught up in legalese…”

    A big +1 for Doug’s entire post, there. Precisely what I was trying, and evidently failing, to say.

      

  222. James Coleman says:

    Jon abroad.
    “… What I don’t get is the bitching from posters with nothing better to add than invective…”
    I presume your rant was aimed at me so I will reply. Bitching? I was merely pointing out that the long winded views of little more than a schoolboy were being fawned over and complimented by grown-ups who should know better. And you say, “… but I’d rather listen to his views on international relations than to, for example, a 57-year-old unemployed ex-railwayman …”. Really? On what basis? The latter at least has the benefit of years of experience of life and is of a type which comprises the bulk of most juries who actually decide between the opposing points of view of different lawyers.
    Also it was and is my view that he was not contributing anything worthwhile to a discussion group FOR Scottish Independence. (The clue is in the word FOR). He was instead instigating doom and gloom about Independence, and was apparently successful in this, when I read some of the comments from some who he has influenced. And although he claims to be a YES supporter I have yet to be convinced that that is true.
    So I suggest you cut your crap and start to examine more closely what people are actually writing and stop being taken in by fancy words. I support the the Rev on this matter and everything that Cowie has written appears to have the aim to undermine him and his views.
     
     
    What I don’t get is the bitching from posters with nothing better to add than invective. Luckily the names don’t seem to be those of regular posters. Perhaps a 21-year-old law student knows kess than Prof. Sheffer, but I’d rather listen to his views on international relations than to, for example, a 57-year-old unemployed ex-railwayman. Now no-one would ever suggest that the latter had no right to express his opinion. So cut the crap and get back to civil discussion.

     

      

  223. Matt says:

    “I disagree that we have no protection in international law. The UK Government’s document yesterday is two people’s opinion. Other opinions are available.”

    I agree with that completely, however I am worried that in the near future I am going to have to argue against someone who is making the same points as Graeme, and I have not seen any convincing arguments on here which I could employ. Just saying “well that’s just some lawyers’ opinion, there are others who disagree”, isn’t good enough. When we are arguing against the full weight of all the major media outlets, we need more than that.

      

  224. Albalha says:

    @matt

    Surely it’s about pointing out they can’t have it both ways; secession and successor states, that’s how I’m arguing it. Goodies versus nasties when it comes to post independence liabilities.

    As many have said international law is interpretative.  

      

  225. pa_broon74 says:

    Being overly concerned about the legal aspects of this is pointless and is exactly the intended purpose of this document. They did the same thing with the Scottish Government’s competence re. the referendum – they said Holyrood didn’t have the power yet, here we are having a referendum.

    Its a puff piece, its purpose is to sow doubt and discontent. It makes no difference in terms of Scotland’s bargaining position because it is predicated on what-ifs. I understand the main thing is membership and recognition of and by the UN. Why would a functioning democracy with already-embedded functions of state (judiciary etc) be excluded. We already adhere to all treaties the UK does, I can’t understand what difference this makes in the grand scheme of things. We might be negotiating with the UK over domestic points (dissemination of things like MOD assets and functions of state,) but when it comes to things like national assets (oil & gas) and things like borders, that is out of the hands of Westminster and into the sphere of international standards of law.

    In terms of protection under international law, that would only be the case while or if Scotland was not recognised by the UN, (and I think even then, in between times there is protection under International Human Rights,) I imagine that would be pre-negotiated between the referendum and the date of actual independence so would just roll over. Why would the UN say no, what possible barriers could they put up?

    I don’t fear this at all, at this point its all opinion and opinion obtained by unionists at that. In 18 months time we’ll look back in this as we look back on the various legal opinions that said Holyrood couldn’t organise its own referendum.

      

  226. raineach says:

    Without wanting to sound like Ian davidson, we shouldn’t be too surprised that London’s [published] legal advice so closely meets their political wish; nor that Edinburgh’s advice so closely reflects their position as neither could be expected to publish something harmful to their cause. Rather we should appreciate that these legal opinions reveal two contrasting visions of Scotland, even if neither is truly accurate. On the one hand, Scotland is a respected equal amongst nations, the captain of her fate. On the other hand, Scotland really doesn’t exist except as a peripheral region. The value of these contrasting legal views lies in what it reveals about each sides’ attitude to Scotland and in the true nature of the choice we make next year

      

  227. pa_broon74 says:

    @raineach.
    “The value of these contrasting legal views lies in what it reveals about each sides’ attitude to Scotland and in the true nature of the choice we make next year”
    Exactly what I meant to say.

      

  228. jon abroad says:

    @ James Coleman
    No actually it wasn’t you I was referring to. But others here resorted to flaming. That’s their prerogative, but also their problem.
    Also it was and is my view that he was not contributing anything worthwhile to a discussion group FOR Scottish Independence.
    Ok, your opinion; wasn’t and isn’t mine. But still no reason to belittle him as a 21-year old student lawyer. That’s an ad-hominum attack: your argument is crap because you’re crap. Come up with something better.
    doom and gloom
    Perhaps you don’t like the tricky bits.
    everything that Cowie has written appears to have the aim to undermine him [the Rev] and his views
    As the Rev says: Adults robustly disagreeing with each other is entirely acceptable.
    taken in by fancy words
    Who? Me? I’m like you. I agree with what the Rev says, and I said so in my original post: it all boils down to realpolitik.
     

      

  229. orpheuslyre says:

    Pa Broon

    Its a puff piece, its purpose is to sow doubt and discontent.

    That might sound (faintly) cynical to some but I for one agree –  it really is the hearty of the matter.

    The UK government were alarmed at the (otherwise, pliant) media running away from them on this issue, and put in place a simple strategy of media management, whereby they would release soi-disant authoritative  (but negative) documents at set intervals in order to put the Yes campaign constantly on the back foot of the media attack, and thereby set and control the media agenda.

    It is to all intents and purposes a deliberately co-ordinated media+government attack strategy, and it would be working handsomely – except that each time they do it, the yes campaign have actually profited by it.

      

  230. Chic McGregor says:

    As I have often said ‘Scotland is not a state.  However thanks to being part of the UK it is in a state’ ;)
    Regarding this:
    Rev. Stuart Campbell says:
    11 February, 2013 at 7:05 pm

    “Scotland has no recognised boundaries in so far as International Law (which is what we are arguing here) is concerned, for the simple reason that Scotland is not a legal entity recognised internationally.”
    Sorry, but this is a wholly meaningless semantic quibble. The border between England and Scotland has, to the best of my knowledge, remained static for 300 years. It is howling insanity to suggest it would be a matter of debate in the event of a Yes vote. As for a definition of self-determination, the Edinburgh Agreement would appear to provide that.”
     
    There is sleight of hand going on.  The question of whether Scotland has national maritime territories right now is NOT the issue, we know it doesn’t (Crown Estates, Fishing Rights, Oil Licenses etc. all controlled by London) the question is what rights would an independent Scotland accrue on independence? And that most certainly does fall under the remit of international law. 

    And neither does the question of what these rights are have to wait until independence. Indeed a detailed analysis of this has already been done and published in the European Journal of International Law.  http://www.ejil.org/pdfs/12/1/505.pdf

    While there is some dubiety regarding the various methods used to determine maritime boundaries there are none which would allocate Scotland’s continental shelf rights to rUK/England upon independence.
    The following map summarises and reflects such dubiety as exists:
    http://i51.photobucket.com/albums/f390/chicmac/UK_Sea_Rights_EJIL.jpg
     
    Also note, that  the kite Unionists often try to fly regarding the case of the Northern Isles remaining in the rUK should they vote NO, the rUK then supposedly ‘retaining’ most of the oil rights fails to get off the ground for two reasons.
     
    First, is precedent in international law.  The semi-autonomous nations of native Americans in the north of Quebec who are almost unanimously in favour of remaining with Canada tried to get multiple secession approved but the UN rejected it.
     
    Second, even if the Northern Isles became ‘English’ (or whatever national name the rUK will use) and this was somehow recognised internationally, under the international law of the sea, as a small archipelago enclave of a foreign country on Scotland’s share of the Continental Shelf they would only be allocated territorial waters close to their shores as detailed in the study and on the map above.

      

  231. orpheuslyre says:

    Another interesting difference between the legal report and the government ‘analysis’ to which it appends: 

    The UK govt says that Scotland would be a new successor state. Not a new state, or a successor state, but a new successor state.

    As I understand it, a new state and a successor state are different.

    Its at 2.14.

    It gives references to a set of paragraphs in the legal opinion, but on checking there I do not see any reference to a new successor state as such. There are references to new state though. This is confusing – but I wonder if I’m not the only one that’s is confused.

      

  232. Roland Smith says:

    Considering that Starbucks and Amazon have paid no UK corporation tax for years they seem a particularly bad example for the Better Together Campaign Director to use. These Better Together and UK government  people don’t think through what they produce. the treasury coming out with us being a pound a year worse off being a classic example.

      

  233. R Louis says:

    Having now read it all, it’s clearly a piece of nonsense.  It is ‘pre negotiation’ by London, and in many ways has left the YES campaign with a very easy target.
     
    This shallow and quite peurile attempt to ‘move the goal posts’ regarding Scotland’s status is patent nonsense.  It is as others point out above, a mere distraction.  I do however think, it needs rebutted, simply to ensure its remarkably colonial and patronising view of Scotland is not left unchallenged.  
     
    As I have said elsewhere, it makes it very clear to me, that the NO campaign have no clear coherent case to make for the union, and Westminster, together with its fawning Scottish cabal (Darling et al.), are really quite afraid.

      



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