28 June 2013

The Decolonisation Papers: Negotiating a better pathway to Scottish independence

Occasional papers on the self-determination/decolonisation process.

 Prof. David Scheffer

Director of the Center for International Human Rights
 Northwestern University School of Law

Earlier this month Whitehall released a report, bolstered with an annexed legal opinion by two distinguished law professors, entitled, Scotland analysis: Devolution and the implications of Scottish independence. The Whitehall report followed my own remarks on the legal implications of Scottish independence at the University of Glasgow in late January. 

The Whitehall report merits careful scrutiny in the months ahead. No one doubts that Scottish sovereignty existed more than three centuries ago, whereas in almost all other self-determination movements the clarity of former sovereignty has been absent. Two sovereign nations entered into the Treaty of Union of 1707. That treaty united two countries into “One Kingdom by the Name of Great Britain,” but the Whitehall report opines that “…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.” 

Some would strongly disagree with this conclusion and argue that the Scottish people retained their right of self-determination within a distinct part of Great Britain that continued with an autonomous national character (particularly in law, culture, and religion). A major premise of self-determination is to overcome rigid presumptions, particularly where the historical record favors challenging conventional thinking heavily weighted with examples of decolonization. The sui generis character of Scotland derives from its past sovereignty reasserting itself in a modern application of self-determination culminating in the 2014 referendum. 

Nonetheless, the Whitehall report presents a fait accompli for the continuation in law of the United Kingdom as the “continuator state” in the event of an affirmative referendum vote for Scottish independence. With its repeated arguments for the continuator theory, the Whitehall report develops further positions reinforcing the continuation of the status quo for the remainder of the United Kingdom (known as “rUK”) while Scotland would be cast off as a new state in almost every respect, to initiate its own treaty relations and membership in international organizations. Thus is built a pyramid of presumptions based upon the initial premise of the continuator theory and yet little of which relates to the sui generis character of the Scottish situation. 

The Whitehall report repeatedly emphasizes the scale and complexity of legal issues flowing from Scottish independence, even more so if the continuator theory holds, as the report insists it must. One cannot help but observe a political objective at work in the Whitehall report, namely to make the legal implications appear so burdensome and traumatic for Scotland and its people, particularly under the presumptive continuator theory for the rUK, that voters will decide it is not worth the effort and vote “no” on the independence referendum. 

Alas, the Whitehall report presents a false dilemma: If Scotland votes for independence in the referendum, then the rUK will act pursuant to the continuator theory and essentially refuse to cooperate, through negotiations, for a reasonable transition for both Scotland and the rUK that sustains membership in international organizations for both nations and provides an amicably negotiated continuation of treaty relations for both. Indeed, the Whitehall report suggests engaging in negotiations that may have no discernible end, validating the improbability of independence. 

The report assumes a confrontational negotiating scenario in the wake of an independence vote rather than a cooperative one. It locks in such confrontation by insisting on the continuator theory and then letting all of the difficulties for a transition flow from that single presumption. 

The rules set forth in the 1978 Vienna Convention on Succession of States in Respect of Treaties favor Scotland in creating a more balanced approach to the transition, but are dismissed in the Whitehall report as not yet customary law… 

and thus not binding on the United Kingdom. Such a conclusion overlooks the report’s own cautionary point that “in the vast majority of situations the matter is likely to be regulated by specific arrangements.” Precisely! 

A constructive way to approach the transition to independence following an affirmative vote on the referendum would be to adopt a plan whereby two co-equal successor states mutually agree to approve or acquiesce in continued membership for both states in international and regional organizations and approve or acquiesce in relevant treaty relations. That would be an amicably negotiated basis for transition that is credible under international law and respectful of the rights of the citizens of both Scotland and the rUK. It would avoid a “clean slate” approach for Scotland triggering slash and burn consequences that surely would deepen the rift between Scotland and the rUK for generations. Why go down such a politically destructive path? 

The great challenge of the negotiations should be how to manage the approval and acquiescence decisions of the rUK and Scotland within the rules of international and regional (European Union) organizations and with the parties of thousands of treaties. If the rUK and Scotland can reach mutual agreement, constructively, on how to achieve most efficiently Scotland’s entry into international and regional organizations and participation in relevant treaties, other governments likely would acquiesce in or readily approve that mutual agreement. Yet the Whitehall report needlessly points to a far more difficult and injurious path for Scotland. 

The Whitehall opinion argues for the centrality of the rUK continuing permanent membership in the U.N. Security Council, NATO, the Non-Proliferation Treaty as a nuclear weapons state, and as a major economic power in the International Monetary Fund. The continuator theory guarantees all of that power and status quo for the rUK without much fuss, so it would be expected that Whitehall advocates it. 

Yet it appears more difficult, following U.K. Prime Minister David Cameron’s speech on 23 January 2013 recommending a referendum on the United Kingdom’s European Union membership, to insist on the centrality of such membership when, in contrast, the Scottish Government’s position is to sustain Scotland’s participation in the European Union following independence. 

Instead of relying on the presumptive application of a legal theory, Whitehall could seek Scotland’s acquiescence to the continuation of the rUK’s status in the Security Council and other key organizations and treaty arrangements. The Scottish acquiescence would be far more convincing to other governments than for the rUK to advance the continuator theory and hope for the best (especially in the Security Council). Other governments likely will be drawn to a cooperative methodology for transition, rather than one grounded in isolating Scotland while rewarding the rUK. 

In return for Scotland’s acquiescence, the rUK would be expected to readily endorse a smooth transition for Scotland’s membership in, among other entities, the United Nations, NATO, World Bank, International Monetary Fund, and the European Union. As it stands, the Whitehall report seeks to create the most difficult pathway when in fact there is a much easier one to take if only London were willing to help pave it. 

Even if Whitehall remains wedded to its legal analysis prior to the referendum, then following any affirmative vote for independence, the continuator theory should be shelved so that the fairest and most efficient transition process can be negotiated and followed, including marketing it to other governments and to international and regional organizations. 

The Whitehall report is at its weakest when examining the rights of EU citizens in Scotland… 

(Scots are also EU citizens), and even at times with respect to EU membership per se. The value of a negotiated outcome that coordinates for a smooth transition within the European Union of the rUK and an independent Scotland appears self-evident in the report’s own words. 

The better alternative would be endorsing a negotiated co-equal successor state status in the negotiations. There is a sound basis in international law for it. If the talks are approached in that spirit, the stage would be set for far more productive and efficient grants of approval and acquiescence to facilitate treaty relations and membership in organizations of an independent Scotland. Also, a negotiated co-equal successor State status would not require the rUK to arise anew from a “dissolution” of the United Kingdom or to lose its EU, United Nations, NATO, or any other membership. 

Finally, the Whitehall report’s bold presumption that national liabilities would have to be negotiated and thus shared between Scotland and the rUK under the continuator theory rests on very thin ice. On what legal basis would Scotland be obligated to assume any significant level of United Kingdom liabilities if the rUK is the continuator State? The Whitehall opinion offers no basis for establishing an obligation to share financial liabilities. Scotland’s leverage nonetheless would lie in agreeing to negotiate the sharing of national liabilities if the rUK sets aside the continuator theory as the basis for legal implications and agrees to negotiate in good faith with the commitment to approve and acquiesce where necessary to facilitate Scotland’s engagement with the international community. 

The objective of both parties should be to create the least resistance to a transition for the emergence of two independent states, richly endowed in history, and to demonstrate how a model for self-determination can work for the benefit of all peoples of the isles. This should result in the continued strength of the critical treaties and international organizations bonded to the United Kingdom at present. Such an outcome is not mission impossible. 

David Scheffer is a law professor and director of the Center for International Human Rights at Northwestern University School of Law in Chicago. He is a former U.S. Ambassador at Large for War Crimes Issues (1997-2001) and co-author of Self-Determination in the New World Order.