HC 643 The foreign policy implications of and for a separate Scotland

Written evidence from Professor Matthew Craven, Professor of International Law and Dean of the Faculty of Law and Social Sciences, SOAS

The process of managing Scotland’s passage to independence – assuming it is to happen – will be not merely one of negotiating a local solution to the political economic and social disruption that is likely to occur, but also one of managing adjustments to the complex international legal and political environment within which the United Kingdom is currently enmeshed. The range of issues that come into play, here, include not only the survival of existing treaty relations with other countries (which the FCOs treaty database cites as including up to 2900 multilateral treaties and 10,000 bilateral treaties), but questions of membership in international institutions (both regional and universal), title to ownership of public property both at home and abroad (consulates and embassies, currency deposits etc), liability for the national debt (to both public and private agencies), the survival of public contracts (such as rail franchises), and questions of nationality. Much of what might look like a matter of purely local political or economic negotiation – for example whether an independent Scotland might acquire responsibility for armed forces installations in Scotland or for fulfilment of the terms of concession agreements with oil producers - is likely to have international implications in the sense that it is liable to affect the rights and obligations of other states in the international community.

On the face of it, it may seem that there are few rules of international law that govern such events. There are only two multilateral agreements that formally address the question of ‘state succession’ – the Vienna Convention on State Succession in Respect of Treaties (1978), and the Vienna Convention on State Succession in Respect of Property, Archives and Debt (1983) – neither of which has been ratified by a significant number of states. The former entered into force in 1996 and currently has 22 parties, the latter has yet to be signed by sufficient number of states to enter into force. The United Kingdom is party to neither agreement. That being said, just because the agreements are not in force in their entirety is not to suppose that the UK has an entirely free hand in determining the arrangements governing the separation. Other states are liable to have particular views on the issue – particularly where their political, economic interests might seem to be at stake – and the UK will have to expect to engage in extensive negotiations with other parties.


The starting point of any analysis of the legal consequences of territorial change tends to be through a determination of whether or not the legal personality of the state is taken to continue, and if so, in what guise. If the predecessor state does continue, then it would follow that all legal relations will remain unaltered save only those that become impossible to perform as a consequence of the territorial change (e.g. obligations in relation to foreign shipping off the maritime coast of a portion of the territory that has separated from it). If, by contrast, the predecessor does not continue, then the starting point is obviously the inverse – that no legal relations will continue save those that somehow adhere in the territory (e.g. executed agreements, boundary agreements, those agreements by which the state would otherwise be unjustly enriched).

Whilst deciding whether or not the state continues or not is clearly of importance, it is also problematic for two main reasons. In the first case, it is clear that questions of continuity are frequently matters of acute political sensitivity, and subject also to rival interpretations. The collapse of Yugoslavia, for example, was variously viewed by participants as either the secession of various Republics from the Socialist Federal Republic leaving behind a Serbian ‘rump’ state (the view of Serbia), or the as the dissolution of a loose Federation in which all component Republics emerged as ‘new’ states (the view of Bosnia, Croatia, Slovenia and Macedonia). Similar questions surrounded the break up of the Soviet Union (in which Russia was eventually regarded as the ‘continuation’ of the USSR but a palpable shift in emphasis was apparent between the two key conferences at Minsk and Alma Ata), and in the merging of East and West Germany (in which Chancellor Kohl’s initial plan for the creation of a federal union was later given different shape in the incorporation of the GDR into the FRG). Whilst constitutional history may have its role in affirming or otherwise such determinations, it is relatively clear that the influence of external factors is often considerable. One may surmise, for example, that the modality chosen for German Unification was informed, in part at least, by its desire to maintain its position within the European Union (EU), just as that of Russia was informed by a desire to maintain its political authority within institutions such as the United Nations (UN). In each case, other states saw reason to support such assertions, just as they denied (for a range of reasons) Serbia’s claim to continue the personality of the former Socialist Federal Republic of Yugoslavia (SFRY).

In the second place, even if a consistent picture is developed as to the question of continuity, rarely will this be entirely determinative of the legal consequences that might ensue. In the first place, as has been remarked above, adjustments will still have to be made to the legal environment to take account of the change. In case of German unification, for example, not only was the FRG faced with the problem of what to do about the treaty relations of the GDR, but also had to re-negotiate the arms control agreements that formerly applied only to West Germany. In case of Russia, delicate negotiations had to be undertaken to secure Russian control of nuclear weapons in order to bring it into line with the terms of the Non-Proliferation Treaty, but also to determine ownership of the Black Sea Fleet. In case of secession, furthermore, the rubric of continuity often has to be displaced to determine equitable ownership of movable assets at home and abroad and in the partitioning of the national debt.


If one is to start with the rubric of continuity, however, there are clearly at least three different ways in which the separation of Scotland from the remainder of the United Kingdom might be conceptualised – and these, for sake of convenience (rather than analytical accuracy) may be referred to as the theories of ‘Separation’, ‘Secession’ and ‘Dissolution’. The key to the distinctions offered being the question whether one or more of the component parts of the ‘Union’ may be said to continue the legal personality of the United Kingdom – in case of separation it being both, secession merely one, and dissolution none.

A) Separation

One popular view is that, following the abrogation of the Treaty of Union of 1707, Scotland and the remainder of the Union would part company ‘resuming’ their pre-union identities. Of course, what is meant is not ‘resumption’ per se, understood in terms of a return to the pre-1707 situation (whatever that might have been), but a ‘disaggregation’ or a ‘splitting’ of a pooled sovereignty such that each component part would maintain in force all existing legal relationships so far as consonant with the changed situation. Whilst there are several historical examples of unions being dissolved in this way (Iceland and Denmark in 1940; Austria-Hungary in 1919; Norway and Sweden in 1905) the most proximate is the separation of Egypt and Syria following the dissolution of the short-lived United Arab Republic in 1960.

A perceived advantage, here, is not merely the sense of ‘equality’ that would accompany the parting of ways, but also that, in principle at least, legal continuity would be maintained and that relations with other parties would be minimally disrupted. Scottish membership within the EU and other international organisations would (in theory at least) continue alongside that of the remainder of the UK, it would remain party to all multilateral agreements, be responsible for its own portion of the national debt and entitled to its share of state property (both at home and overseas).

Whilst undoubtedly attractive, the ‘splitting’ of legal rights and obligations in this manner is not without its difficulties. Of the various problems – both technical and political – that might ensue, the following are merely exemplary:

i) The bilateral agreements to which the UK is presently party (the number of which certainly rises into the thousands) could scarcely be ‘continued’ by both an independent Scotland and a rump United Kingdom without the active consent of the other parties. If there was no standing assumption that either party could be regarded as the sole continuation of the existent United Kingdom, it may well follow that both parties would have to seek the continuation (or re-negotiation) of all such agreements. Bearing in mind that these will include a wide range of issues from extradition, investment, trade, defence, fishing, navigation and air transport, to matters of enforcement of judgments, carriage of goods, trademarks and broadcasting, the scale of potential economic and political disruption that might ensue should not be underestimated. Some such agreements, furthermore, will clearly only be applicable in relation to one or other portion of the United Kingdom, so no general ‘catch-all’ process of re-negotiation/renewal will be possible. In practice the simplest solution would likely be for both parts of the United Kingdom to seek to exchange treaty lists with partner states, stating the preferred view as to the status of those agreements – ie. whether they are to continue or fall. This, however, will take considerable time to plan and operationalise.

ii) In case of multilateral agreements, continuity would present fewer problems insofar as many such agreements are designed to maximise membership and registrars have frequently been very flexible on the possibility of succession. That being said, the registries of such treaties (of which the UK is one) may not be willing to simply add an additional name to the roster of states parties (the number of parties occasionally having legal significance), and may insist that one or both states have to be recorded as having ‘succeeded’ to the agreement.

iii) As regards membership in international organisations (including, but not limited to the EU) much would depend upon the political organs of those institutions as to whether they would accept the idea of ‘splitting’ the UK membership. In some cases a continuation of the UK’s membership by both parties might be tolerable, or actually convenient. Particular problems might be encountered, however, in cases in which membership is associated with a particular balance of interests (UN), or where it is dependent upon subscription (IMF, IBRD) and hence will affect voting rights. In case of the UN, it would be unlikely that other member states would admit the possibility of the two component parts of the United Kingdom ‘splitting’ the existing membership if it were to entail a change in the composition of the Security Council (a re-negotiation of the UN Charter would be necessary). In case of the IMF and IBRD, whilst the question of admission might not itself be overly problematic, it would mean that the UK subscription (and hence voting weight) would have to be shared by both parties and its overall influence considerably moderated.

B) Secession

The main alternative to the ‘separation’ thesis would be to view the process as one in which Scotland effectively ‘secedes’ from the United Kingdom, establishing itself as an entirely new state, allowing the rump United Kingdom to act as the effective continuation of the United Kingdom. The United Kingdom would continue to enjoy all existing international privileges, and remain subject to its obligations; Scotland for its part would have to forge its own international relations entirely afresh. The most proximate example of such an approach would be that of the USSR in which Russia was held to be the ‘continuing’ state for most effective purposes, whilst all other states within the Union (with the limited exception of Belarus and Ukraine) were treated as ‘new states’.

There are certain clear advantages, in case of the United Kingdom, for such an approach to be taken. In the first place it would minimise the legal disruption consequent to the change – making clear, for example, that prime responsibility for the existing national debt or for treaty obligations would remain with the United Kingdom. It would also produce an element of certainty in questions of membership within international organisations. Once again, however, this is not without its difficulties:

(i) Scotland would have to establish its legal position in relation to other states almost entirely afresh. There would be no standing assumption that existing bilateral agreements would continue in relation to Scotland, nor could it guarantee membership in international organisations (whether that be NATO, the EU, UN, WTO, Council of Europe, IMF, IBRD etc). This may produce a number of problems for such organisations – to assume, for example, that Scottish nationals were no longer EU nationals until a decision over admission had been made would not only counter the clear ethos of the EU, but would immediately make those resident in other parts of the EU legally and politically vulnerable. Some political accommodation would clearly have to be sought.

(ii) Whilst Scotland might plausibly be able to rely upon existing agreements with third parties in relation to the delimitation of the continental shelf and exclusive economic zones, no longer being able to rely upon the UK’s bilateral agreements with other countries as regards overflight agreements, investment, extradition, enforcement of contracts etc might produce a range of deleterious political and economic effects that might otherwise be avoided.

(iii) It would generate an assumption that the United Kingdom would retain ownership of public property held abroad (including consulates and embassies) which might otherwise be the subject of political negotiation in conditions of equality. Conversely the United Kingdom would – in theory again - remain responsible for the national debt with the exception only of those parts of it that were in Scotland. Once again, the starting point may not be propitious for the reaching of agreement.

C. Dissolution

A third alternative, albeit one that has not been given much credence, might be to regard the process as one which results in the dissolution of the Union in its entirety, and in which none of its elements could claim to continue the personality of the existing United Kingdom. The models for this kind of rupture would be those of the Socialist Federal Republic of Yugoslavia and Czechoslovakia, in which none of the component parts was treated as being entitled to continue the legal personality of the predecessor state (and in case of Czechoslovakia none claimed to be able to do so). In both cases, each state had to secure its membership of both bilateral and multilateral agreements afresh, submit applications for admission to membership in international organisations and secure, by agreement with foreign partners, a partition of public property and debt.

The only advantages to this particular approach would be that each component part of the Union would be that much less would depend upon agreement with foreign partners, and that each element of the Union would have the freedom to determine the range and extent of overseas commitments afresh. It would, however, have significant effects upon the position of the United Kingdom internationally, both influencing the structure of the EU, UN and other organisations such as the IMF and World Bank. As a consequence it is fairly easy to predict that this option would be strongly opposed by other states.


Apart from the choice as to how to approach the questions of legal succession outlined above, there are a number of miscellaneous legal issues of some importance that will have some bearing upon future negotiations for independence (assuming that they move forward). I will leave aside, here, the broader question of EU membership, or that of the subrogation or assignment of public contracts.

A) Delimitation of Maritime Zones & North Sea Oil Fields

The current most comprehensive agreement relating to the delimitation of maritime zones is the UN Convention on the Law of the Sea (1982) to which the UK is a party. Article 15 of that Convention stipulates that in the determination of the boundary of the territorial sea between adjacent states will occur through the application of the ‘equidistance’ principle (ie. that it should run out at 90° from the course of the coastline). The provisions governing the exclusive economic zone and continental shelf (articles 74 and 83) merely insist that delimitation should be by agreement with a view to achieving an ‘equitable solution’. There are clearly various different possibilities for how such delimitation might take place but the most frequent starting point is the principle of equidistance – which may then be displaced by other considerations if ‘equity’ so demands it. In such a scenario, it is likely that most of the oil-fields with presumptively ‘begin’ in Scottish waters. Nevertheless, if the process of delimitation will be a key determinant of the future financial viability of an independent Scotland, it is likely to only pre-figure a set of negotiations in which questions of historic production and investment are likely to figure.

B) Nationality

One issue that is often overlooked at moments of territorial change is the problem of nationality. Whilst the continued possession of EU citizenship would significantly reduce the range or scale of problems here, and whilst an attempt is usually made to balance individual choice with some external determination of ‘belongingness’, it is clear that some attention will nevertheless have to be given to the following:

- The extent to which arrangements might be such as to encourage migration flows two or from Scotland as a consequence of disparities of the regulatory regimes in place (benefits, services, tax etc), and the consequential economic, social and political disruption that might come in its wake.

- The extent to which a lack of coordination between respective nationality laws may serve to produce a condition of statelessness for certain sectors of the population.

- The extent to which immigrant communities seeking rights of residence on grounds of their connections with one or other part of the UK might be disadvantaged through the application of criteria the fulfilment of which becomes impossible as a consequence of the change.
7 October 2012

Prepared 23rd November 2012