Yes Scotland today welcomed the view of a leading international law expert that an independent Scotland would share equal status with the remainder of the UK and would enjoy EU membership as a co-successor state.
Harvard and Oxford-educated Professor David Scheffer, an ambassador-at-large for war crimes issues during President Clinton's second term in office, said that Scottish independence had to be treated as sui generis - or unique - in the context of EU membership.
He told Radio Scotland it was important to take a practical as well as a legal approach: "There is a unique character to the Scottish experience. That doesn’t mean that international law is not relevant – it’s extremely relevant; European law is extremely relevant; the requirements for membership in the European Union are very relevant.
"However. as I have examined this issue I think we run ourselves into blind alleys and dead-end alleyways if we try to rigidly apply old notions of certain areas of international law if we try to think of the European Union in the context of Scotland being some sort of newly, fresh East European state knocking on the door, seeking admission and thus applying criteria that might have been applied to Eastern European nations but, frankly, are rather inadequate and inappropriate for the situation in Scotland."
He went on: "This really comes down to what is pragmatically negotiated and what steps may be pragmatically taken unilaterally by a new Scottish Government if the referendum vote proves to be Yes."
Professor Scheffer, who is Director of the Centre for International Human Rights at Northwest University, was asked what the legal status would be of Scotland if the Act of Union of 1707 was repealed.
He said: "My argument quite frankly is that we have two co-equal successor states. We don’t have a situation where I’m going to call the British Government ... the predecessor state that retains all of the rights without any question whatsoever that had been established through the Union, and then Scotland is a successor state somehow cast adrift, told to start from a clean slate as some kind of new state.
"I know that argument is out there – it’s a very strong one – but I will counter it: I think, with the more logical argument, that the most appropriate way to handle the situation is to refer to each entity as successor states."
Referring to comments made last month by Jose Manuel Barroso, president of the European Commission, that an independent Scotland might have to reapply for EU membership, Professor Scheffer said that, while he respected the EU and the EC, "I think in this case I just don’t think that a solitary statement by the president of the European Commission ... on a cold December morning last year is necessarily the guidance that will dictate this process."
Professor Scheffer is the latest in a growing list of internationally-respected experts who support the belief that an independent Scotland will continue in EU membership.
Last month Sir David Edward, a former British judge of the European Court of Justice, also expressed the view that EU membership for an independent Scotland was a matter of common sense rather than law. He said: 'All that is certain is that EU law would require all parties to negotiate in good faith and in a spirit of co-operation ... The results of such negotiation are hardly, if at all, a matter of law."
Blair Jenkins, chief executive of Yes Scotland, welcomed Professor Scheffer's comments: "This is another very significant contribution from somebody of vast experience in international law who agrees entirely with our position that Scotland's continuing membership of the EU is a matter of logic and common sense.
"Professor Scheffer has looked closely at this issue and what he says completely demolishes misleading claims that somehow Scotland would be expelled from the EU on independence.
"'The negative and destructive messages that somehow Scotland, which has been part of the EU for 40 years, would not be a welcome member of the EU simply defies all logic. Professor Scheffer's contribution will help reinforce the positive message that an independent Scotland's membership of the EU is of unchallengeable mutual benefit."
In a lecture at Glasgow University, Dr David Scheffer affirmed Scotland’s right to self-determination and that it would continue to be a member of the EU. Click here to read the full speech.
