The UK Government has published the first of a series of papers on “Devolution and the Implications of Scottish Independence”. The first paper concentrates on the legal status of Scotland after independence. You can read the BBC report about the document here.
There remain some differences of opinion on how international law would apply to Scottish independence. But - as we explain below - that question is becoming increasingly academic. That’s because there is now very little difference between most of the experts on the practical steps that require to be taken to allow an independent Scotland to take its place in the international community.
Furthermore, the Scottish Government’s 18 month timetable from referendum to independence has been backed by one of the legal experts behind the UK report.
What does the UK Government paper say? How does this compare to what the Scottish Government has been arguing?
The UK paper is based on the opinion of two academic lawyers – Professor James Crawford of the University of Oxford, and Professor Alan Boyle of the University of Edinburgh. The professors examine the various arguments about whether independent Scotland would retain the same rights and obligations under the various international treaties that the UK is currently signed up to.
On balance, the two academics prefer the argument that, after independence, Scotland would be a “new state” – it would therefore have a fresh start renegotiating treaties and memberships of international organisations from scratch.
The Scottish Government’s alternative view, based on the legal opinion of other eminent lawyers and academics, is that Scotland would renegotiate the treaties and memberships as a “successor state”. That would mean that Scotland would continue as a party to the various treaties and international organisations while negotiations continued, even after independence.
So what practical difference does it all make?
Which legal approach is correct will have only a very limited effect on Scotland’s transition to becoming an independent country. This is because the Scottish Government will complete the vast majority of necessary negotiations following the referendum in autumn 2014 but prior to independence day, planned for March 2016. The Scottish Government has always accepted that such negotiations would be required.
Speaking to the BBC about the legal opinion he co-authored for the UK Government, Professor Crawford agreed that the Scottish Government’s 18 month timetable appeared realistic, that EU membership would come through negotiation and UN membership would be straight forward.
He also said the renegotiation of international treaties was “not going to be a major issue” and accepted that EU negotiations would take place from within the European Union.
Asked by BBC Scotland: “So that negotiation would be going on from within the European Union?”, Professor Crawford replied “Yes, that is certainly true”, before indicating the issues that would need to be negotiated.
The Scottish Government has responded to the report by stating that “it's quite helpful."