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Working Papers m 2013:01

International Political and Legal Implications of Scottish Independence

David Scheffer

Adam Smith Research Foundation Working Papers Series 2013:01

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Working Papers m 2013:01


David Scheffer

February 2013

Adam Smith Research Foundation . Working Papers Series

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Acknowledgements

An earlier version of this paper was delivered by the author at the University of Glasgow, Scotland, on 22 January 2013 in its Security and an Independent Scotland lecture series. Professor Scheffer’s views in this paper are solely his own and do not necessarily reflect the view of any organization to which he is affiliated. He wishes to thank Amanda Leese, a law student at Northwestern University School of Law, for her research assistance and Visiting Assistant Professor Caroline Kaeb at Northwestern Law for her review and advice regarding this paper.

All rights reserved by the author. No part of this paper may be republished quoted without the express permission of the author.

About the author

Professor David Scheffer is Mayer Brown/Robert A. Helman Professor of Law and Director, Center for International Human Rights, Northwestern University School of Law, Chicago, Illinois.

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Almost four decades ago I wrote in The Harvard Political Review: “To visit Scotland today is to witness a nation convulsed by the throes of modernization. Caught between the lost prosperity of the industrial revolution and the sudden wealth of North Sea oil, Scotland is a land fixated upon change. Old industrial structures and dismal economic statistics are being surpassed by technological breakthroughs in oil exploration and falling unemployment rates. In the course of one year, 1974, Scottish politics has emerged from centuries of stagnation to become the most innovative regional phenomenon in Western Europe. Two British elections, in February and October, revolutionized not only the entire spectrum of politics in Scotland, but they laid the foundation for the possible re-emergence of a country subsumed since 1707. The possibility of independence from Great Britain is no longer a laughing matter. Pressure to disentangle politico-economic centralization from London has guaranteed the Scots certain political upheaval for years to come. In even the most remote areas of Scotland, the talk is of change. Scots who have been isolated all their lives in backward heather country now bicker over the siting of oil-platform construction sites. Never in its history has Scotland been in such ‘civil’ turmoil. By the close of this decade, the home of the kilt promises to be a significantly different nation from what it was only a year ago.”

I wrote those words at Harvard University, where I was a student writing my senior thesis on “Processes of Modernization in Scotland: The Political Economy

of North Sea Oil.” I had spent September 1974 on buses and trains throughout Scotland, with the heather transforming gloriously before my eyes, including an extraordinary rail journey from Inverness to Kyle of Lochalsh, interviewing Members of Parliament, young SNP politicians, oil executives, and scholars about the rising tide of Scottish nationalism and the pull of North Sea oil. A year later, in late 1975, while at Oxford studying law I wrote in The Nation magazine that, “Devolution means that a single act of Parliament will restructure British democracy without constitutionally mandating what is basically a politically motivated hodgepodge of government by appeasement… . The British have lost themselves in the devolution maze. Devolution poses so many hypothetical uncertainties and dangers that it seriously threatens the stability of the existing political system. Once the Scottish National Party gains a majority in the Scottish Assembly (a predictable certainty), it will not accept


My late colleague at Northwestern University School of Law, Professor Ian MacNeil, was the 46th Chief of the MacNeil Clan. His Kisimul Castle was granted to Historic Scotland in 2000 and his estate on the island of Barra was transferred to the Scottish Government in 2003.

Professor MacNeil, whose clan motto is “Victory or Death,” was a persistent advocate of Scottish independence within our law school walls in Chicago and habitually referred to “William the usurper.” When I joined the faculty at Northwestern Law in 2005, I quickly found fierce Scottish blood flowing through the halls, and it reminded me of an earlier time in my life, one that remains relevant for contemporary realities.


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responsibility without power… . Without a modern constitution that specifies the divisions of government, provides for a bill of rights, and establishes a legal alternative to the sovereignty of Parliament, the United Kingdom is embracing an ambiguous and unbalanced scheme of democracy that will fuel the fires of separatism.” And so it has.

Shortly thereafter, during the summers of 1976 and 1977, I labored in London for the General Counsel of Phillips Petroleum Europe-Africa on tort liability and joint venture issues arising in its North Sea oil explorations, and witnessed up close the reality of North Sea oil. Aside from my abiding interest in self-determination, however, this is my first opportunity to return to a passion I once held and now reaffirm for the fate of Scotland.

I ask you, somewhat remarkably, will we, two years from now following the referendum, witness a significantly different nation from what it is today? Will we observe a nation on a certain path towards restored sovereignty, independence, and economic prosperity? Surely, there are many different views about that question.

The modern exercise of self-determination has advanced far beyond what most would have predicted decades ago. The Scotland Act of 1998 created the Scottish Executive and Scottish Parliament as central pillars of devolution. In 2011, the Scottish National Party won a majority of seats in the Scottish Parliament and First Minister Alex Salmond assumed greater power at the head of the Scottish Government and continued the Scottish National Party’s advocacy for independence. In October 2012, British Prime Minister David Cameron and First Minister Salmond signed the Edinburgh agreement setting up a referendum on Scottish independence that will be held in late 2014. For decades North Sea oil has generated significant financial resources for the British Government, of which Scotland receives a percentage that has been deemed inadequate by the Scottish Government.

I have read a great deal in recent months about the drive for Scottish independence and the views and assessments of many scholars, lawyers, and politicians about what the law may pronounce and what politics may dictate. I certainly do not intend on these pages to provide the definitive ruling on what international law requires if the Scottish people vote “yes” for independence in 2014. Frankly, anyone who pretends to know precisely what international law mandates under these fairly unique circumstances should be viewed

skeptically in the halls of policy-making. Scotland’s past, present, and future are sui generis and that fact alone makes an enormous difference in how law and politics pragmatically join in coming months to chart a pathway either to a state of continued devolution of political and economic power within the United Kingdom or to a state of independence for Scotland apart from the United Kingdom.

If there were ever a debatable area of law to examine publicly, this is it. International law issues bear greatly upon any upheaval of State sovereignty, but in the end political factors will shape the legal parameters of the quest for Scottish independence. Politicians will do what they must to reflect the will of the people and international law will be so instructed and influenced when they do.

The most important principle regarding the legal implications of Scottish independence is that while nothing in international law prevents Scottish independence, nothing in international law or European Union Law is certain about the consequences of Scottish independence. This is not terra firma. It is an exercise that should draw upon both the heritage of a distant sovereignty and the pragmatic realities of modernization.

The fate of Scotland under international law rests on the realities of Scotland’s unique history of union with the remainder of the United Kingdom since 1707, of the United Kingdom’s membership and role in the European Union and the Security Council of the United Nations—facts that deeply intertwine Scotland with the fate of the United Kingdom before those organizations, and of the complex of treaties in which the United Kingdom is a party—the number (14,000) and diverse character are such that determining the role of Scotland in those treaties as independence unfolds will be no easy formula.

But every one of these tough issues, and so many more, can be resolved through a combination of smart diplomacy by and political negotiations between Holyrood and London and with the family of governments and institutions comprising the European Union and, with singular importance, the U.N. Security Council. While law will have its role to play in the months and years ahead, Scottish independence, if that is indeed what emerges from the referendum vote, will be a high-stakes political endeavor of unprecedented risks and opportunities. International law will inform every step of the way, but political negotiations and diplomacy will dictate the outcome.

International Political and Legal Implications of Scottish Independence . Scheffer

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The uncertainties, indeed flexibility, of international law in the Scottish experiment with modern governance nonetheless will be grounded in at least seven areas of inquiry, including: Scotland’s Right of Self-Determination, Recognition of an Independent Scotland, State and Treaty Succession, The European Union, International Organizations, NATO, and Law of the Sea. Note that I take the liberty of referencing a United Kingdom that one day may be without Scotland as a constituent part as the “remainder of the United Kingdom,” or “rUK.” I realize others prefer other formulations, including just sticking with the “United Kingdom.” But I have to distinguish between the United Kingdom today and what might result if Scotland achieves independence, so that we have clarity in our discussion without suggesting prejudicially any particular formulation.

I. Scotland’s Right of Self-Determination

First, the right of self-determination is a very powerful core principle in both human rights law and the broader field of international law; it is a right that must not be debilitated by dated presumptions of its true character in the modern world. The legal principle of self-determination has deeply influenced the devolution era of Scottish politics and it can have a profound impact on the quest for independence.

The right of self-determination has been long held to be a jus cogens principle under international law. Scotland is one of the most dynamic laboratories in the world for the modern expression of that principle and how it will be defined for the 21st Century. Following decades of evolving theory and practice of devolution, which is one of the more pragmatic expressions of self-determination of our time, the democratic expression of the free will of the Scottish people in a referendum for independence held in 2014 should fulfill the most ideal formulation for self-determination in the post-colonial world. The Scottish experience has almost nothing to do with colonialism and the understanding of self-determination during the 20th century following either World War I and the Versailles Treaty or the post-World War II era of decolonization.10

Scotland’s endeavor is a very modern form of self-determination with deep historical roots reaching back to its own sovereign nationhood and yet centered on what I have described elsewhere as sub-state self-determination, only in this unique case the “sub-state” was once the sovereign nation of Scotland prior to the Treaty of Union in 1707.11 The exercise of this right normally would need to fulfill certain standards

that have rapidly emerged in the last two decades following the dissolution of the Soviet Union and the former Yugoslavia. These standards present no real difficulty for Scotland and will be examined more thoroughly later. So there should be little controversy over Scotland’s capabilities to exercise, successfully, the standards set for modern expressions of self-determination.

The right of self-determination, enshrined in the 1966 International Covenants on Civil and Political Rights (ICCPR)12 and on Economic, Social, and Cultural Rights (ICESCR),13 as well as the U.N. Charter and in numerous UN resolutions over the decades,14 creates the foundation upon which much else follows. But one should interpret this right using a modern frame of reference and not the decolonization theories and practices of the past century. I would part ways with such legal scholars as the late Antonio Cassese, whom I knew well, worked with, and deeply respected, but who held a rather narrow and anachronistic view of self-determination, one that was grounded in the primacy of sustaining national cohesion following decolonization. Scotland is not a case of decolonization and certainly not one of simple “internal self-determination.”15 That constitutes an entirely unsatisfactory description.

For Scotland represents a fresh manifestation of modern self-determination, evolving step-by-step through stages of sophisticated and politically dynamic devolution to the doorstep of a popular referendum. Whatever benefits accrue to Scotland from exercising the jus cogens right of self-determination, they should be recognized as such. However, this also means that considerable power resides in the people and thus much rests upon the projected 2014 referendum and its result. This will have an impact on the prospects for recognition of an independent Scotland by foreign nations and international organizations as well.


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As noted, Scotland, as a modern manifestation of the principle of self-determination, is an example of sub-state self-determination, which embraces devolution and yet is defined by a historical union of formerly independent nations now confronting separation that restores their original sovereignties. Twenty years ago, in my co-authored book, Self-Determination in the New World Order, my co-authors and I wrote that, “‘Sub-state’ self-determination describes the attempt of a group within an existing state to break off and form a new state or to achieve a greater degree of political or cultural autonomy within the existing state. [Footnote 5: We avoid using more common terms such as ‘secessionist’ or ‘separatist’ self-determination to emphasize that a sub-state movement may not seek full independence and that self-determination claims can often be resolved with steps short of full independence.] Sub-state self-determination movements may be based on ethnic, geographic, historical, or economic factors. They include only claims by groups concentrated in a particular geographic area; claims of dispersed peoples are treated in a separate category.”16 At the time, 1992, with respect to the United Kingdom, we identified Northern Ireland, Scotland, and Wales as examples of sub-state self-determination movements within the United Kingdom, obviously of varied degrees of strength and practical relevance.17

My co-authors and I further wrote that, “Sub-state claims often have been reasonably met by federalism. Francophone movements in Canada, Tamil movements in India, and Ibo movements in Nigeria have been contained—albeit with occasional eruptions—within federal structural bargains. For many years, the same could have been said for Tamil claims in Sri Lanka or Albanian claims in the Serbian province of Kosovo in Yugoslavia. Once the federal bargains were broken…in the mid-1950s in the case of Sri Lanka and, more recently, by Serbian president Slobodan Milosevic in the case of Yugoslavia, the sub-state claims focused on demands for full independence.”18 Although Tamil sub-nationalism has been thwarted, Kosovo today stands as a de facto and perhaps by now de jure independent nation, recognized as such by more than 90 countries, including the United Kingdom and 21 other European Union states.19

Scotland has experienced both the classical formula of internal self-determination and is moving relatively quickly now towards a modern expression of external self-determination, but it is doing so based upon its largely sui generis character. In conventional terms,

the devolution movement has been the internal self-determination moment for Scotland. This embodies the concept that the people have the right to meaningful participation in the political process. Only through such participation could people choose their own social order and form of government—thus fully exercising a right to internal self-determination. The Scotland Act of 1998 and the creation and operation of the Scottish Executive and Parliament are signal indicators of such internal self-determination.

“External self-determination” means that people have the right to choose their own sovereignty—that is, to be free from external coercion or alien domination. President Woodrow Wilson embraced this notion when, in identifying American war aims in 1917, he spoke of upholding “the liberty, the self-government, and the undictated development of all peoples…. No people must be forced under sovereignty under which it does not wish to live. No territory must change hands except for the purpose of securing those who inhabit it a fair chance of life and liberty.”20

But Scotland is greatly distinguished from the decolonization concept of self-determination that dominated primarily the post-World War II landscape for several decades. It has moved far beyond that, which is why I have long identified Scotland with sub-state self-determination as it moved through devolution and now stands at the precipice of full-scale independence. The novel feature of the Scottish experience is that one is dealing primarily with a dual-state historical phenomenon, of two states joined in 1707 and now on the verge of potentially splitting apart. The sub-state of Scotland actually is the former independent state of Scotland, of more than three centuries past, reasserting its full sovereignty. There is no rule of international law preventing that restoration of sovereignty through peaceful means and within the context of modern self-determination theory. Thus the basis for and legitimacy of the referendum of 2014 is well established.

II. Recognition of an Independent ScotlandIn the event the Scottish people vote in the affirmative for independence in the 2014 referendum, there should be a strategy in place for ultimate recognition of an independent Scotland by foreign governments. That strategy should include Scottish pledges on a number of good governance factors normally expected of new governments and states. Prior consultation with foreign governments about Scottish


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commitments to core principles of good governance should facilitate rapid recognition of an independent Scotland if and when it is formally achieved, perhaps as early as 2016.21

Scottish emissaries should be laying the ground work through a coordinated plan to ensure that once independence is on the horizon following an affirmative referendum vote, if that indeed occurs, key foreign governments recognize both the state and government of Scotland as a sovereign unity in one step. One could embrace, for pragmatic reasons, periods of de facto recognition of Scottish independence similar to Kosovo prior to de jure recognition, and there are historical examples of this tactic.22 But Holyrood should strive for obtaining de jure recognition with the fewest complications following independence. The recognition formula should be manageable to negotiate, with the Scottish envoy pledging that an independent Scotland is going the extra distance to meet modern conditions for recognition that have emerged during the last two decades.

I take the liberty to draw upon some of the conditionality that my co-authors and I proposed 20 years ago in connection with the break-up of the Soviet Union and of Yugoslavia, which admittedly are two very different scenarios from the Scotland experience. But they provide a useful back-drop to what Scotland can easily satisfy, thus facilitating rapid recognition of its independence and timely admission to the United Nations. These criteria for transition to independent statehood are as follows:

a). U.N. Standards of Admission. Pursuant to Article 4(1) of the U.N. Charter, the standards for admission of a state to the United Nations require that the state be “peace-loving,” accept the obligations in the U.N. Charter, and be “able and willing to carry out these obligations.”23 Scotland so qualifies and could not be plausibly challenged on those criteria at the United Nations.

b). Adherence to International Law. I will have more to examine about this when discussing the law of succession of states below, but under this condition Scotland would pledge to adhere to the general principles of international law. In addition, Scotland could commit to upholding the specific international legal obligations of the predecessor United Kingdom that logically carry over with Scotland’s

independence. International law consists of both a large body of customary norms (that in the view of many scholars automatically would bind any newly emerging state) and of numerous treaties and conventions, some of which may have complicated outcomes with two successor States. Therefore, the Scottish pledge will need to be specific with respect to what codified international law will be endorsed and comprehensive enough to guarantee the rights and obligations found in customary international law.

c). Inviolability of Borders. Scotland should explicitly recognize and respect existing international boundaries and internal borders dividing Scotland and England, both on land and at sea, and of course the territorial sea demarcations with Norway and the remainder of the United Kingdom. The territorial sea boundary in the North Sea between Scotland and rUK will be subject to negotiation, which I also examine below, but as long as there is a peaceful negotiation or adjudication process underway, that should suffice for recognition purposes.

d). Non-Use of Force. The “peace-loving” condition of Article 4(1) of the U.N. Charter is easily embraced by an independent Scotland. But there could be some utility, in laying the groundwork for rapid recognition by major governments, to go a bit further with Scotland’s pledge. The Scottish National Party already has staked its foreign policy on a non-nuclear weapons future24 and that could be freshly articulated, although it may require a pragmatic caveat regarding the immediate future of British nuclear submarines at Faslane. Beyond that, however, Scotland could pledge, 1) that it will not seek to use force to settle any boundary


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dispute or to resolve an irredentist claim, and it will resolve such disputes by peaceful means including, if necessary, submitting the matter to mediation, conciliation, arbitration, or the International Court of Justice; 2) to adhere to the Nuclear Non-Proliferation Treaty as a non-nuclear weapons state once the situation with Faslane and British nuclear-armed submarines is satisfactorily resolved, and that could take time; and 3) to accept limits on the size of conventional military forces that are consistent both with self-defense and NATO membership if indeed Scotland wishes to remain part of NATO; and 4) to commit to resolve disputes by peaceful means, to use force only in self-defense or as part of an action of collective security (including NATO and U.N. peacekeeping operations), and to comply with the procedural requirements of the U.N. Charter and Article 5 of the NATO Treaty to confront aggression by other states.25

e). Peaceful Settlement of Disputes. Scotland should commit to peaceful settlement of international disputes. It should consider joining, at the appropriate time, relevant arbitration conventions and submitting to the compulsory jurisdiction of the International Court of Justice.26

f). Constitutional Democracy. The Scottish Government is well on the way to demonstrating its adherence to fundamental tenets of a modern constitutional democracy. The Scottish National Party introduced basic principles for a Constitution in 2002 and the Scottish Government elaborated on its desired methodology in February 2013.27 There are several basic constitutional elements that Scottish law and European Union law address in one form or another, but not within a Scottish or, for that matter, United Kingdom constitutional framework.

In its totality, the constitution of Scotland must provide protection for the rights of individuals and of minority groups and protect them from arbitrary governmental and police action. Periodic free elections, of course, are a cornerstone of constitutional democracy. So too is guaranteeing the right of political dissent. People must have the right, free from the fear of arrest, to express their opposition to the government and its policies and actions. They must have the ability to communicate these views to others through such

means as freedom of the press and assembly. In order to ensure rights for all peoples, the government should enact limits on the right of the police to arrest people and to hold them without public charges or a trial. Such rights and limitations already are well recognized in Scottish law.28 The real challenge for constitution-drafting in Scotland is to envisage what might be required beyond what the Scottish people will naturally determine is reflective of and thus should be incorporated from existing rights under Scottish law and European Union law.

In January 2013, First Minister Alex Salmond articulated the need to consider, in the context of Scotland’s Constitution, “fundamental human concerns, the key economic, social and environmental needs of every citizen and the responsibilities of state and citizen towards each other.”29 He referenced the right to education, the rights of the homeless, a constitutional ban on the possession of nuclear weapons, and the use of Scottish armed forces and what constitutional safeguards should be established for the use of Scottish troops.30

Although the First Minister’s proposal has provoked responses from some who view the proposed rights and duties as too constraining on the Scottish Government following independence,31 they are not particularly provocative. From a comparative point of view, economic, social, environmental, and indeed security concerns are reflected in constitutions around the world in modern times. For example, environmental rights and duties provisions appear in many constitutions in addition to roadmaps for implementing such rights, as with the constitutions of India,32 Poland,33 Argentina,34 and Ghana.35 The South African Constitution guarantees everyone the “right to have access to adequate housing.”36 It also provides the right to have access to health care services, sufficient food and water, and social security.37

In India, the constitutional nod to “directive principles of state policy” (Part IV of the Indian Constitution) at first was interpreted as it reads, namely, “The provisions contained in this Part shall not be enforced by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”38 Article 39 elaborates this concept by stating that, “The State shall, in particular, direct its policy towards securing” adequate means of livelihood, equal pay for equal work for both men and women, the health and strength of workers, both men and women, and that


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children are protected against exploitation and moral and material abandonment.39 Article 41 of the Indian Constitution provides that, “The State shall, within the limits of its economic capacity and development [important qualifiers, no doubt], make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.”40

The Supreme Court of India, in an important line of cases41 has begun to transform some of these so-called “directive principles” into constitutionally protected rights and duties.42 But the concept of India’s “directive principles” is one that should not be ignored in the drafting of the Scottish Constitution as they can provide a political bridge to the incorporation of these additional categories of rights and duties into a constitution.

Further, an independent Scotland’s presumed continued participation in the European Convention on Human Rights43 and the International Covenant on Economic, Social, and Cultural Rights,44 where a broad range of rights are well-known and increasingly established now, would provide added momentum and legitimacy to the proposals tabled by First Minister Salmond. Such concepts found in the International Covenant on Economic, Social and Cultural Rights as “progressive realization” and “appropriate steps” and “appropriate means” can be applied to national constitutional law as well, so that the skeptical view fearful of automaticity of state obligations for such rights and duties is addressed realistically within the constitutional text.

It likely will not be possible to finalize the Scottish Constitution prior to independence, as one would assume a constitutional convention for that purpose would be convened immediately after independence, as has First Minister Salmond has suggested.45 But Scotland would want to entice diplomatic recognition as quickly as possible upon achieving independence. So the sooner the text of a plausible concept for the draft constitution is tabled in anticipation of the constitutional convention, and that tabling is well communicated to foreign governments, they may feel more comfortable recognizing the newly independent Scotland as soon as possible upon independence. Of course, some foreign governments may not care, but others may care or use the absence of a constitution as the basis, however credible, for delaying recognition, perhaps in deference to their long-held loyalty to London. Thus the prospect for constitutional

democracy in Scotland should be a powerful tool in the nation’s recognition strategy.

III. State and Treaty Succession

International law is, in essence, both a journey through history and a leap towards a vision for the future. Scotland and its quest for independence is Exhibit A.

While it is tempting to discover customary international law that would confirm immutable rules, there is not enough content to that customary law to address the peculiarities of Scotland. So one must proceed very cautiously when speaking of customary international law, particularly when its content remains subject to conflicting views.46 In that context, the law of state succession is hardly settled47 and involves modern evolutionary trends that will be greatly informed by the Scottish example. Particularly in the realm of treaty law, both bilateral and multilateral, the fate of Scotland’s ties to the treaties currently binding the United Kingdom is uncertain but also susceptible to a great deal of pragmatic reformulation in the years ahead.

The two legal procedures of state succession and treaty succession will be perhaps the most complex endeavor of any serious bid for Scottish independence. In my view, contemporary application of legal principles in both fields of succession points to the following conclusions: While the remainder of the United Kingdom of 57.4 million citizens would be larger than Scotland of 5.2 million citizens, the fundamental premise of Scottish independence is to regain the sovereignty of pre-1707. Thus the break-up should be viewed as two successor States of equal legitimacy—not size, wealth, or power, but legitimacy—and in that circumstance both successor States should lay equal claim to the continuation of treaty relations established in the past by the United Kingdom. This means a continuation for both States, and not some static notion of United Kingdom treaty


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relations unaltered while Scotland has to start fresh, either under a flawed clean slate theory or alone in the world of unilateral declarations. Continuation of two States, separated once again, albeit more than three centuries later, could be the operative presumption; modern international law can absorb, indeed encourage, that concept because it rests upon the rich heritage of the origins of the territory of the United Kingdom, and that is something that international jurists can comfortably grasp.

Most examples of self-determination and of the law of state succession and treaty law do not exhibit the simplicity of the historical fact of Scottish sovereignty three centuries ago. There were sharp demarcations of sovereignty, albeit ruled under a single crown for many years, between Scotland from the remainder of the United Kingdom before 1707 and there is no basis in international law to ignore that reality today despite the Treaty of Union’s presumptive union of “forever.” We have seen unfold in Scotland since the 1970s a distinctly modern adaptation to that historical reality, one fueled with the economic prospects of North Sea oil and the political forces of devolution. If one were to plot a natural progression from a kingdom of unity, namely the United Kingdom, to the separation of Scotland and rUK into two sovereign nations once again, then a rational pathway through devolution to independence demonstrates a logical trajectory. The 2014 referendum is the next reasonable step. In short, under international law there are no insurmountable obstacles to achieving independence. There is however a political process that must address the presumptive requirements of international law.

Article 34(1) of the 1978 Vienna Convention on Succession of States in Respect of Treaties,48 which confirms the continuation of treaty obligations by a successor state in a modern context outside of decolonization efforts, falls, in the views of some scholars, short of customary international law.49 The Convention came into force in 1996, and only 22 nations have joined it,50 but there remains an oddly static view held by some scholars that what they believe to be customary international law trumps the 1978 Convention, thus sustaining what is now an utterly antiquated allegiance to the clean slate theory, which itself was grounded in the long-passed decolonization era.

Welcome to 2013, for the time has arrived to challenge that presumption. Modernity and surely the will of the international community suggest that Scotland embrace the continuation of treaty obligations, within

a pragmatic political framework, carefully considered and deftly negotiated, of what should and should not be continued in force for an independent Scotland. London and foreign governments will have key roles to play in politically endorsing or acquiescing in Scotland’s continuation of a large number of British treaty obligations, but that should be a natural feature of negotiated strategies with London and governments and international organizations in the future. Scottish officials would be mistaken, however, to believe that they would negotiate from weakness. They would negotiate within the realm of modern international law, even if they may find themselves precariously positioned at times during its implementation.

Bear in mind that customary international law, particularly as it is interpreted by scholars schooled in the decolonization era, has very little to do with Scotland’s sui generis and recently thoroughly modernist character. Every aspect of Scottish independence will be largely sui generis and the legal formulas applied to it will evolve accordingly. The Scottish situation does invite a simpler formula, though. Each of the two States, Scotland and rUK, would declare, preferably following negotiations, which treaties they intend to continue to enforce and which treaties they would withdraw from where withdrawal is permitted. Scotland, probably more than the United Kingdom, will have to take its chances with other nations and whether or not they accept the new treaty arrangements (bilateral or multilateral). This is where advance diplomacy, seeking essentially acquiescence, would prove helpful. As London already has rejected this notion, and insists on viewing Scotland as a successor State alone while rUK remains the predecessor and continuing or “continuator” State, that posture would prove needlessly disruptive of a transition to Scottish independence. But if that remains London’s position, then Scotland could issue a unilateral declaration of interpretation of its treaty relations and wait for any objections from other governments. Provided the diplomatic work is carefully undertaken in advance, such objections may not be delivered.

From this exercise a new precedent for international law may emerge: Where a State resurrects its former nationhood and sovereignty through peaceful referendum in accordance with democratic principles, the restored nation may sustain existing treaty relations where practical and provided there are no explicit objections from relevant State Parties that cannot be overcome.


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Scottish independence would not be an exercise in “clean slate” independence, as enabled under international law for the era decolonization.51 There will be British treaties that Scotland may not wish to continue to adhere to as an independent nation, but that decision should not be based upon a broad “clean slate” theory of treaty law on the heels of state succession. Rather, there should be a thoughtfully negotiated parsing of treaties to determine which should continue in force for Scotland and which ones should be abandoned.

The conventional “clean slate” approach ignores the deeply intertwined and complex character of treaty commitments by the United Kingdom and its sub-state entity, Scotland, and the needs of independence. In short, this should not be an exercise of rUK continuing as the sole treaty party, for either bilateral or multilateral treaties, and Scotland somehow being cast adrift into a vacuum shorn of all treaty relations. In fact, Scotland would abdicate its responsibility as a member of the international community if it were to walk away from the obligations of, to mention only a few categories, international human rights, territorial, law of the sea, and trade treaties, and thus into some duty-free zone of blissful but reckless independence. Legal obligations will flow to an independent Scotland because of its long engagement with United Kingdom treaties and its status as a co-equal successor State. Law of recognition principles will require that of Scotland as a responsible member of the international community committed to the rule of law.

Perhaps the most workable formula for succession would be for the British and Scottish Governments to issue a “declaration of continuity” or “notification of succession” to the depositary of each relevant treaty declaring that Scotland and the rUK will continue to perform designated treaty obligations, followed by the comprehensive consent of the British and Scottish Parliaments to such declarations or notifications, thus establishing a highly credible political decision that will influence the determination of what international law requires under the circumstances. Another path would be a unilateral declaration by the Scottish Parliament declaring continued adherence to those treaties that the Scottish Government desires to continue.

IV. The European Union

I am deeply respectful of the European Union and the European Commission, including its president, and know how important is the future relationship between a possibly independent Scotland and the European

Union. The fate of Scotland within the European Union, however, is not going to be determined with a one-page pronouncement by the President of the European Commission on a cold December morning in Brussels. President José Manuel Barroso claimed that Scotland would have to go cold turkey and apply for European Union membership, as if it were a newly-introduced State to the halls of Brussels following independence.

Let us step back for a moment and examine President Barroso’s 10 December 2012 letter. The European Commission president wrote, “If part of the territory of a Member State would cease to be part of that state because it were to become a new independent state, the Treaties would no longer apply to that territory. In other words, a new independent state would, by the fact of its independence, become a third country with respect to the EU and the Treaties would no longer apply on its territory.”52 There is nothing previously written anywhere in EU treaties or jurisprudence that I am aware of that actually stipulates this point of view.

I could just as easily write the following, which is a viable option under the law but would be almost contrary in argument and outcome to President Barrosso’s statement: “If part of the territory of a Member State would cease to be part of that state because it were to become a new independent State that wished to continue the membership of its territory and citizens, who are EU citizens, in the European Union and continue its participation in the Treaties, talks with appropriate authorities would be arranged to confirm the modalities for achieving that objective. In other words, such a new independent State would, by virtue of its membership in the European Union as part of the predecessor Member State, be entitled to continued membership and continued application of the Treaties on its territory.” There is an alternative framing with the same outcome, particularly if one accepts the prospect of two co-equal successor States arising in the aftermath of a vote for Scottish


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independence. The second sentence might read: “In other words, such a new independent State would, by virtue of sharing successor status with the predecessor State, retain its membership in the European Union and remain party to the Treaties following talks with appropriate authorities to confirm the modalities for the transition to two Member States where formerly there was one Member State.”

Writing these words, either on my laptop or from within the Brussels bureaucracy, is not such a big leap because there is no clear guidance in European Union law. Brussels’ real objective should be to face this challenge without being intimidated by the prospect of an independent Scotland and without a strategy that clearly would alienate the Scottish Government and people from the European Union itself and the European Commission bureaucracy.

There are requirements for State accessions under the EU treaty that some might claim constitute lex specialis to any claimed relevant international rules and standards. According to Article 49 of the Treaty on the European Union,53 the Council of Ministers decides unanimously whether to accept a new applicant State after consulting the Commission and receiving the consent of the European Parliament. The European Council may set the “conditions of eligibility” according to the treaty. The Council of Ministers and the European Council usually act on the basis of a Commission opinion that assesses the eligibility of a candidate State for membership. Thus, President Barroso may have framed his, and his advisers’ thinking, in accordance with the usual accession procedure that guided the admission of Eastern European States into the European Union. But that overlooks the reality that the Scottish issue is not a clear-cut accession situation, but rather a matter of succession. Of course, if the Scottish Government advocates a succession strategy with the European Union, then Holyrood essentially has chosen to retain membership in the European Union as a successor State, so that would be an important initial position to hold firm on.

The economic nature of the European Community and now Union tends to be over-accounted for at times, while the traditional or historical premise of the European Community is sometimes forgotten or at least neglected. The focus on economic issues within the European Union and how they influence membership should not eclipse the fundamental issues that created the European Community in the first place after World War II, namely the search for

peace and stability in Europe and the protection of democratic values,54 of which Scottish self-determination has been expressing itself for decades through the devolution process and more recently the work of the Scottish Executive and Scottish Parliament. That too is part of the European Union story, as reflected in part by the fact that the European Union received the Nobel Peace Prize in 2012, and that was not for strictly economic achievements.55

The best outcome for Scotland, assuming it wants to confirm EU membership following a vote for independence, surely will be one that has been arrived at through cooperative negotiations with London and Brussels and not through issuance of legally-framed pronouncements to the endless frustration and probable detriment of Scottish citizens and EU citizens resident in Scotland.

Assuming that an independent Scotland wishes to remain within the European Union, two factors should strengthen the assumption of continued EU citizenship considerably. First, the fact that two successor States emerge from this process, rather than a continuator State of the remainder of the United Kingdom and the successor State of Scotland, should enhance Scotland’s future with the European Union unless Brussels requires both States, rUK and Scotland, to start from scratch with EU membership, and that is not going to happen. Scotland should be a successor state on co-equal terms, at least technically, with rUK. Thus, Brussels would be under considerable political pressure to negotiate a smooth transition of sustained membership for both successor states and obviously continuation of EU citizenship throughout the isles.

British Prime Minister David Cameron’s announced in a speech on 23 January 2013 his government’s intention to renegotiate parts of the United Kingdom’s relations with the European Union and hold a referendum by 2017 to determine continued membership in the Union.56 Holding a referendum on European Union membership for the United Kingdom in the future ironically casts doubt on London’s commitment to the European Union at precisely the same time that the Scottish National Party is advocating continued European Union membership for the successor State of Scotland if its independence referendum receives an affirmative vote.57

Unless European Union and EU Member State leaders are determined to alienate and punish Scotland and its people for seeking independence, and indeed achieving it, what political advantage is to be gained


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by extinguishing EU citizenship if the aim is to maintain or entice Scotland’s EU membership? The rights of EU citizenship should follow the successor State, particularly if two successor States emerge from the break-up of the United Kingdom.

The Scottish are EU citizens with individual rights under Scottish law and EU law and these are rights obviously relevant for an independent Scotland.58 If an independent Scotland were not to achieve membership in the European Union, would those rights be automatically extinguished, or is there a residual body of rights with the European Union that individual Scots would be entitled to enjoy and enforce for at least some period of time? And if there are residual rights, then will not an independent Scotland be tied to the European Union in a sui generis way? The easy answer would be that those rights flow with the State of Scotland itself, and if Scotland is excluded from the EU, then so too are the Scottish people and anyone resident on Scottish soil claiming EU citizenship. But I believe there is more to this issue than some observers have recognized and what Brussels probably wishes to focus on, for we are all on uncharted territory here.

Given such an unprecedented event not contemplated by any EU treaty, one should be extremely cautious to dictate any sudden loss of EU citizenship and the rights associated therewith. Indeed, if an aggrieved party were to bring this issue before the European Court of Justice, it would not be surprising if judges, on equitable grounds alone, would find that EU citizens in Scotland are entitled, at a minimum, to a reasonable transition period during which their rights as voters and to seek redress before the European Court of Justice are protected and enforced before whatever successor regime is established, including a Scotland that completely separates from the European Union in all respects.

V. International Organizations

One of the great unknowns is how the larger international organizations, among which the United Kingdom is typically a major member State, will accommodate sustained membership for an independent Scotland. There are commonly no codified rules in the charters of international organizations envisaging this procedure whereby an existing member State of the organization either separates into two free-standing new States or a part of a member State breaks off to claim

independent sovereignty as a successor State while the predecessor or continuing State remains party to the international organization under its original national identity with continuing rights and obligations. In the latter example, the successor State presumably must apply de novo for membership in the international organization while the predecessor or continuing State enjoys sustained membership.

An authority on international organization law, C.F. Amerasinghe, writes, “A more difficult question arises when states break up, as when in 1947 India was divided [to] form Pakistan and India, when in 1991 the Soviet Union disintegrated, when in 1992 the Czechoslovak Republic was dissolved or when in 1992 Yugoslavia broke up. While each case has been treated on its merits and each institution must technically decide the issues itself to the extent that the solutions are not dependent on solutions in other organizations, the basic principle applied has been that, if a continuator state to the previous member can be identified, then that state continues the membership of the previous member. The identification of a continuator could depend on the agreement or vote of the other members of the organization…. It would seem that, while these questions [of continuation] may usually be decided by agreement among the involved states themselves, ultimately there are no obvious principles upon which the issues have been decided. There has always been some element of pragmatism in the solution reached.”59

Another well-known scholar, Jan Klabbers, counsels, “[T]he rules of each international organization will prevail. The problem, however, is that few organizations have their own rules on the topic, perhaps for two reasons. One is that issues of succession are relatively rare (or, more accurately, were thought to be rare when most constituent documents were drafted) and tend to come in waves.


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Thus, decolonization took place largely in the early 1960s; the map of Europe was seriously shaken in the early 1990s. Second, it is notoriously difficult to make rules on succession because the modalities of succession may differ greatly from case to case.”60

The issue of an independent Scotland’s membership in the United Nations and in other international organizations such as the World Bank, the International Monetary Fund, and the International Labour Organization, need not be a legally-impaired exercise, but each organization and the fate of Scotland’s membership in it will require much advance work to facilitate. If the groundwork is properly laid, and there is clearly time to do that, Scotland’s membership in the United Nations, for example, should not be that difficult to accomplish. The formula for U.N. membership will be almost entirely a political one and in the end the exercise will stand as yet one more example of uniquely crafted membership exercises dictated by the circumstances, big power interests, and the good will cultivated by Scottish diplomats between now and any prospective date of independence.

One critical challenge, as well as one of Scotland’s greatest leverage points with London, is the United Kingdom’s status as a permanent member of the U.N. Security Council and how that singular seat of power could be affected by Scottish independence. The example always raised is the break-up of the Soviet Union and the survival of Russia not only as the predecessor state that consumed the former USSR membership at the United Nations, but also as the state, among all that broke out of the Soviet orbit, that continued with the full power of the former Soviet permanent seat on the U.N. Security Council.61

Regardless of the outcome of the independence referendum, the United Kingdom will want to retain its full power and authority as a permanent member of the U.N. Security Council, either as the reaffirmed United Kingdom following a “no” vote in the referendum or as rUK following Scotland’s independence. But the latter will not come without a price. No one should assume that certain European Union members (consider Germany, Italy, Spain) or major nations long seeking a permanent seat on the Council (consider Japan, Brazil, India, Nigeria, South Africa) will easily accept a continuation of a British permanent seat when an important part of the United Kingdom casts off into independence. This may not be a simple re-play of Russia’s charmed continuation of the Soviet seat on the Security Council more than 20 years ago.

The negotiated acquiescence of an independent Scotland in the rUK retention of the permanent seat in the Security Council is no small matter. London will look to Holyrood following a “yes” vote for the referendum to engage in active diplomacy with major governments to support the continuation of the United Kingdom permanent seat, controlled by London. That actually will be a key opportunity to retain Scottish influence in the Security Council, but the strategy for using reasonable leverage on London must be carefully plotted. The long-term gain for Scotland’s role in world politics as well as the continuation of rUK’s global power could be substantial.

So, rather than simply sacrifice its current participation in a permanent seat on the Security Council, an imminently independent Scotland could negotiate a continuing de facto role in Security Council deliberations through the United Kingdom permanent seat. Holyrood could condition its acquiescence to a continuation of London’s control over the permanent Security Council seat with the requirement, first, that the Scottish permanent representative to the United Nations would have a permanent chair among the British seats behind the British permanent representative in the U.N. Security Council chamber. Second, the Scottish permanent representative would have the right to address the Security Council following full consultation with the British permanent representative and with credentials facilitated by the British Government, and only for the purpose of amplifying and supporting the British position. If the Scottish Government disputes a British position being advocated before the Security Council, such as might have the been the case in 2003 when the Labor Government pressed for and authorized military intervention into Iraq alongside American forces, the Scottish permanent representative would vacate his or her seat in the Security Council chamber during consideration of the relevant matter. That would send a visual signal of disagreement but not entitle the Scottish ambassador to openly disagree in the chamber with the rUK ambassador.

Even without such privileges, Scotland can leverage its acquiescence to the rUK permanent seat on the Security Council remaining “status quo” and as powerful as it currently is in exchange for rUK concessions on other legal or political issues.

There is another feature of international organizations that should be advantageous for both Scotland and rUK if independence is achieved. There can be effectively two seats occupied where only one seat


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can now be held by the United Kingdom in many institutions. At the International Court of Justice, instead of there being only a British judge, there some day could be both British and Scottish judges sitting. At the International Criminal Court, there could be both British and Scottish judges presiding, assuming Scotland assumes State Party status under the Rome Statute of the International Criminal Court. At other tribunals and commissions, where typically politics or constitutional documents stipulate only one seat for the United Kingdom, there could emerge two positions filled by citizens of the isles reflecting the intellectual strength and values of both nations.

Even in the Security Council, Scotland could be elected occasionally in the future to a non-permanent seat on the Council. Of course, during any such period my formula for the Scottish seat behind the rUK seat probably should be modified to exclude that seat during the non-permanent membership of Scotland. This would be a tough formula to negotiate, no doubt, but one should not underestimate how much leverage Scotland has with respect to the future membership of rUK as a permanent member in the Security Council.

VI. NATO

Scotland’s possible participation as a NATO Member State following independence should be sustainable if that is the continued will of the Scottish National Party and the Scottish people,62 but it also should be seen as a point of considerable leverage that should be utilized to sustain that treaty relationship. The fate of the British nuclear submarine fleet docked at Faslane hangs in the balance and could be a bridge of cooperation or great tension with London and NATO headquarters during the transition to independence.63

A negotiated continued membership in NATO, as a collective security alliance, would enable Scotland to influence the decisions reached among NATO Member States to strengthen military capabilities on the European continent and to project NATO outside of NATO territory, particularly when such operations are performed under U.N. Security Council authorization. One can be confident there will be many such challenges in the years ahead. If Scotland wants to be part of that collective security system, then the obligations of membership will be considerable and so will be the projection of Scotland to achieve NATO objectives bearing on defense of borders, anti-terrorism, humanitarian relief operations, and the ending of atrocity crimes against civilian populations.

There is no legal impediment to a NATO role for Scotland, but membership should be tactfully negotiated as Holyrood has considerable leverage if it wants to pay the cost in defense budget investments and the risks of warfare. NATO Member State leaders presumably would want to encourage Scotland’s full-scale participation in NATO, so there likely would be a lively and rich discussion of what constitutes Scottish membership in NATO.

VII. Law of the Sea

Finally, nothing in the law of the sea requires that the median line be the only method of demarcation of the North Sea between Scottish and rUK jurisdictions, an exercise that has an important impact on jurisdiction over North Sea oil reserves.64 Other formulations can be considered and might be negotiated, although Scotland may wish to endorse the median line demarcation in the North Sea. International law, including the Law of the Sea Convention, nonetheless invites negotiated solutions to territorial sea disputes and the situation in the North Sea may qualify depending on the opening positions of the two governments.65

There are risks associated with seeking an alternative to the median line, as London could seek to draw the line even further north based upon historical exploration rights in the North Sea or leverage a line that is more advantageous for Scotland by demanding a sizable slice of North Sea revenue in exchange for a concession on the median line. So Holyrood and London will have to plot their opening positions well, recognizing that there are points of leverage held by each party.

VIII. Summary

It is fairly easy to view international law as a historically-driven constraint on innovative political solutions


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to tough inter-state issues. I prefer to recognize in the principles and treaties of international law opportunities to apply them to modern realities and determine what works and what might have outlived its utility in an increasingly complex and dynamic world. Self-determination has entered a new and very modern phase of implementation, and Scotland is at the forefront of that experience. Principles of State succession must adjust to the unique historical and contemporary realities of Scotland’s quest for independence, which points to succession on co-equal terms with negotiated adjustments in treaty relations and participation in international organizations. What may be expected by other governments to earn rapid diplomatic recognition of Scotland’s independence could include a uniquely modern formula of constitutional democracy and will expect adherence to human rights and U.N. Charter norms.

Scotland’s membership in the European Union and the rights of Scottish citizens as EU citizens are not divorced from the organizational mandates of the European Union, but those rules should not be manipulated to deny Scotland what is rightfully its to claim in the European Union as a long-standing part of the United Kingdom and future independent member of the European Union. That is a unique status and no arbitrary thinking about international or European Union law and precedents arising from different circumstances eviscerate that reality. The challenge of NATO membership reaches far beyond legal principles to the political will of the Scottish people to assume the responsibilities of collective security in the NATO alliance. Scotland’s jurisdiction over North Sea oil reserves may settle on drawing a median line in that body of water, as drawing another line would be a negotiating challenge that international law still permits and that politicians must ponder deeply.

Postcript

Shortly after the author’s delivery of this paper at the University of Glasgow on 22 January 2013, Her Majesty’s Government released on 11 February 2013 lengthy documents entitled, Scotland analysis: Devolution and the implications of Scottish independence (February 2013), with attached thereto Annex A Opinion: Referendum on the Independence of Scotland—International Law Aspects, authored by Professor James Crawford SC and Professor Alan Boyle (together, the HMG opinion.)66 The HMG opinion deserves a detailed and fulsome analysis, which this particular paper does not attempt to provide. However,

it would be useful to set forth some initial general observations about the HMG opinion in order to set the stage for further analysis of it, and the debate that undoubtedly will ensue, during 2013 and 2014.

The HMG opinion seeks to establish a fait accompli for the continuator state theory of State succession, following which all issues pertaining to Scottish independence are subjugated to that particular legal theory. Once the legal premise of a continuator State is argued,67 and repeatedly so throughout the HMG opinion, then further positions are developed reinforcing the continuation of the status quo for the rUK while Scotland must begin as a new State in almost every respect, particularly in its 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 HMG opinion repeatedly emphasizes the scale and complexity of legal issues flowing from Scottish independence, even more so if the continuator theory holds, as they insist it must. One cannot help but observe a political objective at work in the HMG opinion, 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.

The HMG opinion 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 rUK that sustains membership in international organizations for both States and provides an amicably negotiated continuation of treaty relations for both States. (Or, as the HMG opinion infers, would launch negotiations that may have no discernible end,68 and thus validate the improbability of independence.) The HMG opinion assumes a confrontational negotiating scenario rather than a cooperative one. It erects the confrontation by insisting on the continuator theory and then letting all of the difficulties for a transition flow from that single presumption.

A far more constructive way of approaching the transition to independence if there is an affirmative vote on the referendum would be to adopt a


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methodology of both approval and acquiescence, namely mutual approval of or acquiesence in continued membership for both States in international organizations and approval or acquiescence with respect to most treaty relations. That would be a constructive negotiated basis for transition respectful of the rights of the citizens of both Scotland and the rUK that would avoid a clean slate approach with 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/acquiescence decisions of the rUK and Scotland within the rules of international and regional (European Union) organizations and with the States 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 HMG opinion needlessly points to a far more difficult and injurious path for Scotland.

The HMG opinion argues for the centrality of rUK continued permanent membership in the UN Security Council, in NATO, in the Non-Proliferation Treaty as a nuclear weapons State, and as a major economic power in the International Monetary Fund.69 (It would appear more difficult, following U.K. Prime Minister David Cameron’s speech on 23 January 2013 seeking a referendum on EU membership, to insist on the centrality of U.K. membership in the European Union, though the HMG opinion continues to assume as much.) The continuator theory locks in all of that power and status quo for the rUK without much fuss, so it would be expected that they and their legal advisers advocate it.

But instead of relying on a debatable legal theory, as strong as they think it is, London could simply seek, following the referendum and a “yes” vote, Scotland’s acquiescence to the continuation of the rUK’s powerful status in the Security Council, NATO, the Non-Proliferation Treaty regime, the International Monetary Fund, and other key entities 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 Scottish membership in, among other entities, the United Nations, in NATO, and the European Union, thus smoothing the way for an agreed transition of Scotland into these entities. As it stands, the HMG opinion 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 following a majority vote for Scottish independence in the referendum.

London conceivably could even maintain its faith in the continuator theory while stating that as a practical matter, and to accommodate the sui generis situation with Scotland, a transition plan would be negotiated that in fact creates an alternative means by which to enable Scotland to sustain treaty and international and regional organization relations to the greatest extent possible. Perhaps one cannot expect London to admit to this prior to the referendum in light of the HMG opinion, but if there is a majority vote for independence, then following the referendum the continuator theory should be shelved so that the fairest and most efficient transition process can be negotiated and then followed, including marketing it to other governments and to international and regional organizations.

Scottish sovereignty more than three centuries ago in fact existed, whereas concerning almost all other self-determination movements the fact of past sovereignty has not been present. Two sovereign nations entered into the Treaty of Union of 1707. The HMG opinion emphasizes how the Treaty of Union united the two nations into “One Kingdom by the Name of Great Britain” and thus “…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.”70 A major premise of self-determination is to overcome such rigid


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presumptions on highly principled and contemporary grounds of legal and political theory, particularly where the historical record favors challenging conventional thinking. The sui generis character of Scotland derives from its past sovereignty reasserting itself in a modern application of self-determination.

The HMG opinion is at its weakest when examining the rights of EU citizens in Scotland (namely, all Scottish citizens who also are EU citizens), and even at times with respect to EU membership per se. One should note, in the legal opinion set forth in Annex A of the HMG opinion, paragraphs 164 (acknowledging what a negotiated agreement could achieve), 167 (the European Court of Justice’s possible disruptive role), 172.2 (the value of a negotiated outcome), 177 (the expansive reading of EU treaty provisions being open to negotiation and thus offering a means to smoothly transition Scotland into the European Union), 179 (the unprecedented character of Scottish independence having no clear precedent in EU law, and thus inviting negotiation), and 180 (negotiating EU citizenship). One also should note paragraph 132 (no general rule in international law governing succession to membership of international organizations) and paragraph 120, which describes the rules set forth in the 1978 Vienna Convention on Succession of States in Respect of Treaties. These rules favor Scotland but are dismissed in the legal opinion as not yet customary law and thus not binding on the United Kingdom. Such a conclusion overlooks paragraph 124’s cautionary point that “in the vast majority of situations the matter is likely to be regulated by specific arrangements.” Precisely!

Strict adherence to the continuator theory would place the burden on Scotland to sink or swim and permit the rUK enormous leverage that could be used to the great disadvantage of Scotland (assuming that is the rUK’s political strategy). I have argued in this paper for application of a negotiated co-equal successor State status in the negotiations, because there is a basis in international law for it and because 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 from a “dissolution” of the United Kingdom71 or to lose its EU or United Nations or NATO or any other membership. The HMG opinion’s effort to avoid the consequences of lost membership is a red herring. Scotland can easily acquiesce to continued rUK membership in

international and regional organizations and as State Party to treaties but within a negotiated formula for an independent Scotland’s smooth and immediate participation, where desired, in such treaties and organizations.

Finally, the HMG opinion’s bold presumption that State liabilities would have to be negotiated and thus shared between Scotland and the rUK under the continuator theory rests on very thin ice.72 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 HMG 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 State liabilities if the rUK sets aside the continuator theory as the basis for legal implications and agrees, if only on a de facto basis, 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 in the event of an affirmative vote for independence under the 2014 referendum should be to create the least resistance to a transition to the emergence of two independent States richly endowed in history and to demonstrate a model for how self-determination can work, not only for the benefit of the peoples of the isles but also for the continued strength of the critical bilateral and multilateral treaties and international and regional organizations bonded to the United Kingdom at present. Such an outcome is not mission impossible.

Notes1. David J. Scheffer, The Year of Scotland,3 Harv. Pol. rev., 31, 31–36 (1974).

2. DaviD J. ScHeffer, ProceSSeS of MoDernization in ScotlanD: tHe Political econoMy of nortH Sea oil (1975).

3. David J. Scheffer, Will Britain Break Up?, tHe nation, 73, 75–76, Jan. 24, 1976.

4. Scotland Act, 1998, c. 46 § 52 (Eng.).

5. See e.g. Severin Carrell, Stunning SNP election victory throws spotlight on Scottish independence, The Guardian, May 6, 2011, <http://www.guardian.co.uk/politics/2011/may/06/snp-election-victory-scottish-independence>; Brian Groom, SNP victory sets stage for independence vote, fin. tiMeS, May 6, 2011, <http://www.ft.com/intl/cms/s/0/30777f3e-77c8-11e0-ab46-00144feabdc0.html#axzz2KQFXpREK>.

6. Edinburgh Agreement, HM Gov.–Scot., Oct. 15, 2012, available at <http://www.number10.gov.uk/wp-content/uploads/2012/10/Agreement-final-for-signing.pdf>. See also tHe ScottiSH Gov., Historic Edinburgh Agreement on referendum signed, Oct. 15, 2012, available at <http://www.scotland.gov.uk/News/Releases/2012/10/referendum15102012>; Andrew Black, Scottish independence: Cameron and Salmond strike referendum deal, BBc newS Scot. Pol., Oct. 15, 2012, <http://www.bbc.co.uk/news/uk-scotland-scotland-politics-19942638>.

7. Alexander Kemp & Linda Stephen, The Hypothetical Scottish Share of Revenues and Expenditures from the UK Continental Shelf 2000–2013, tHe ScottiSH Gov., Research and Discussion Paper Series (2008), <http://www.scotland.gov.uk/Resource/0039/00390421.pdf>, See also Andrew Black, Twelve unresolved questions on Scottish independence, BBc


19

newS ScotlanD PoliticS, Jan. 24, 2012, <http://www.bbc.co.uk/news/uk-scotland-scotland-politics-16636325> (noting that Scotland could expect to gain rights to more than 80% of U.K. oil and gas revenue, depending on negotiations with England).

8. Note that numerous and varied authors have used “rUK” to reference the portion of the UK that would remain, in the event of Scottish independence. For recent examples, see e.g. HM Government, Scotland analysis: Devolution and the implications of Scottish Independence (February 2013); Jo E. Murkens, Scotland’s Place in Europe, The Constitution Unit, University College London, School of Public Policy (2001); Arno Engel & Roderick Parkes, Accommodating an independent Scotland: how a British-style constitution for the EU could secure Scotland’s future, euroPean Policy centre, 24 Oct. 2012.

9. anDrew claPHaM, Brierly’S law of nationS: an introDuction to tHe role of international law in international relationS 62–63 (7th ed. 2012).

10. Hurst Hannum, autonoMy, SovereiGnty, anD Self-DeterMination: tHe accoMMoDation of conflictinG riGHtS 27–49 (Revised ed., 1996); Morton H. HalPerin & DaviD J. ScHeffer witH Patricia l. SMall, Self-DeterMination in tHe new worlD orDer 16–25 (1992) [hereinafter “Self-Determination in the New World Order”].

11. Treaty of Union, Eng.–Scot., May 1, 1707, available at <http://www.legislation.gov.uk/aosp/1707/7>; see also MicHael fry, tHe union: enGlanD, ScotlanD anD tHe treaty of 1707 (2006).

12. International Covenant on Civil and Political Rights, art. 49, Dec. 16, 1966, 999 U.N.T.S. 171., available at <http://www2.ohchr.org/english/law/ccpr.htm>.

13. International Covenant on Economic, Social and Cultural Rights, art. 27, Dec. 16, 1966, 993 U.N.T.S. 3, available at <http://www2.ohchr.org/english/law/pdf/cescr.pdf>. Regarding both the ICCPR and the ICECSR, consider “Article I (1): All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

14. See, e.g., U.N. Charter, arts. 1(2) & 55, G.A. Res. 1514 (XV) (Dec. 14, 1960), G.A. Res 2625 (XXV) (Oct. 24, 1970, and G.A. Res. 3314 (XXIX) (Dec. 14, 1974).

15. antonio caSSeSe, international law 60–64 (2d ed. 2005).

16. Morton H. HalPerin & DaviD J. ScHeffer witH Patricia SMall, Self-DeterMination in tHe new worlD orDer 49 (1992).

17. Id. at 143–144.

18. Id. at 50.

19. According to the Ministry of Foreign Affairs, 96 countries have recognized the Republic of Kosovo as of the end of 2012. See MiniStry of foreiGn affairS, rePuBlic of KoSovo, <http://www.mfa-ks.net/?page=2,33> (last visited Feb. 9, 2013). Note, also, that Kosovo joined the IMF and World Bank on June 29, 2009. Press Release, Kosovo Joins the IMF and World Bank, U.S. Dept. of State Press Release 2009/658 (Jun. 29, 2009).

20. Self-DeterMination in tHe new worlD orDer, supra note 16, at 16–17.

21. First Minister Alex Salmond, Speech to the Foreign Press Association (Jan. 16, 2013) (stating the expectation that, following a yes vote to the 2014 referendum, the first independent Scottish parliament would be elected, after which an independent Scotland may consider undertaking policy considerations.); See also tHe ScottiSH GovernMent, ScotlanD’S future: froM tHe referenDuM to inDePenDence anD a written conStitution, Feb. 5, 2013 (Scot.) [hereinafter ScotlanD’S future], available at <http://www.scotland.gov.uk/Resource/0041/00413757.pdf>.

22. In addition to the example of Kosovo, history supplies several instances of de facto recognition prior to de jure recognition. For example, the U.K. recognized the Soviet government de facto in 1921 and de jure in 1924. Another oft-cited example is U.S. recognition of the State of Israel de facto, in 1948, prior to de jure recognition. See generally MalcolM SHaw, international law 308–30 (4th ed., 1997); Stefan talMan, recoGnition of GovernMentS in international law 44–65 (1998).

23. U.N. Charter, art. 4, para. 1.

24. ScotlanD’S future, supra note 21 at 9, Feb. 5, 2013 (Scot.) (stating the SNP will “advocate that a written constitution should include a constitutional ban on nuclear weapons being based in Scotland”), available at <http://www.scotland.gov.uk/Resource/0041/00413757.pdf>; see also Hilary Duncanson, Scottish independence: We’ll stay in Nato but ban Trident, says Alex Salmond, tHe ScotSMan, Oct. 8, 2013, <http://www.scotsman.com/news/scottish-independence-we-ll-stay-in-nato-but-ban-trident-says-alex-salmond-1-2565012>.

25. North Atlantic Treaty, art. 5, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243, available at <http://www.nato.int/cps/en/natolive/official_texts_17120.htm>. Art. 5 states the following:

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each

of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, includ-ing the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security. Id.

26. Statute of the International Court of Justice art. 36, para. 2, Oct. 15, 1946. Stating:

(“The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdic-tion of the Court in all legal disputes concerning: (a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; (d) the nature or extent of the reparation to be made for the breach of an international obligation.”). Id.

Note that the United Kingdom has submitted to the compulsory jurisdic-tion of the ICJ as of July 5, 2004. See North Atlantic Treaty, modified in 1951, 199 UNTS 67; see also U.N. Treaty Collection, Charter of the United Nations and Statute of the International Court of Justice, Status as of Sept. 02, 2013, available at <http://treaties.un.org/Pages/ViewD-etails.aspx?src=TREATY&mtdsg_no=I-4&chapter=1&lang=en#1>.

27. Scottish National Party, A Constitution for a Free Scotland (Sept. 2002). Text and principals are available with the Constitutional Commission. Previous Draft Constitutions for an Independent Scotland, conStitutionalcoMMiSSon.orG, www.constitutionalcommission.org/resources.php (last visited Feb. 10, 2013). See also SNP takes aim at the Monarchy, BBc newS worlD eDition (Sept. 16 2002, 16:22 GMT), <http://news.bbc.co.uk/2/hi/uk_news/scotland/2262059.stm>. See also The Scottish Government, Scotland’s Future: from Referendum to Independence and a Written Constitution (Feb. 2013).

28. See e.g. MicHael MeSton, DaviD Sellar & lorD cooPer, tHe ScottiSH leGal traDition (Scott Styles ed., 1991) (discussing numerous protections and limitations that contribute to the Scottish legal tradition); Lord Reed & Jim Murdoch, a GuiDe to HuMan riGHtS law in ScotlanD (2d ed. 2008), 1–73 (discussing the combined affect of the European Convention on Human Rights, The Scotland Act of 1998, The Human Rights Act of 1998, and Scottish case law on the state of human right law in Scotland). In his January 2013 speech to the foreign press, First Minister Salmond acknowledged Scottish legal tradition and identified future objectives. See also Salmond, Speech to the Foreign Press Association, supra note 21 (noting that, “For centuries, Scotland has had a distinct constitutional tradition. . .”).

29. Salmond, Speech to the Foreign Press Association, supra note 21.

30. Id.

31. See e.g. Severin Carrell, Alex Salmond entices left and lawyers with promise of new rights in a written constitution, tHe GuarDian, ScottiSH inDePenDence BloG (Jan. 17, 2013), <http://www.guardian.co.uk/politics/scottish-independence-blog/2013/jan/17/scottish-constitution-alexsalmond> (noting critiques from legal observers and that “[s]ome of Salmond’s other political opponents reacted with derision”); Magnus Gardham, Salmond unveils his vision for rights of Scots, Herald Scotland (Jan. 17, 2013), <http://www.heraldscotland.com/politics/referendum-news/salmond-unveils-his-vision-of-rights-for-scots.19937300> (discussing commentary from political opponents).


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32. inDia conSt. pt. IV, art. 48A, available at http://www.indiankanoon.org/doc/237570/, and at <http://indiacode.nic.in/coiweb/coifiles/part.htm> (“The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.”). See generally Vijayashri Sripati, Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950–2000) 14 aM. u. int’l l. rev. 2, 413–495 (1998).

33. Pol. conSt. art. 74, available at <http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm>. Article 47 provides the following: “1) Public authorities shall pursue policies ensuring the ecological security of current and future generations. 2) Protection of the environment shall be the duty of public authorities. 3) Everyone shall have the right to be informed of the quality of the environment and its protection. 4) Public authorities shall support the activities of citizens to protect and improve the quality of the environment.” Id.

34. Sec. 41, conStitucion naciÓnal [conSt. nac.] (Arg.), available at <http://www.senado.gov.ar/web/interes/constitucion/english.php>. Section 41 provides the following:

(1). All inhabitants are entitled to the right to a healthy and balanced environment fit for human development in order that productive activities shall meet present needs without endangering those of future generations; and shall have the duty to preserve it. As a first priority, environmental damage shall bring about the obligation to repair it according to law.

(2). The authorities shall provide for the protection of this right, the rational use of natural resources, the preservation of the natural and cultural heritage and of the biological diversity, and shall also provide for environmental information and education.

(3). The Nation shall regulate the minimum protection standards, and the provinces those necessary to reinforce them, without altering their local jurisdictions.

(4). The entry into the national territory of present or potential dangerous wastes, and of radioactive ones, is forbidden.

35. GHana conSt. (1992), art. 36, § 9, available at <http://www.judicial.gov.gh/constitution/chapter/chap_6.htm>. Article 36, Section 9 requires the following:

The State shall take appropriate measures needed to protect and safe-guard the national environment for posterity; and shall seek cooperation with other states and bodies for purposes of protecting the wider interna-tional environment for mankind. Id.

36.Henry J. Steiner, PHiliP alSton, ryan GooDMan, international HuMan riGHtS in context: law, PoliticS, MoralS 328 (3d ed. 2008) (citing Section 26 of the 1996 Constitution).

37.See id. at 327–329 (3d ed. 2008).

38.inDia conSt., pt. IV, art. 39, available at <http://indiankanoon.org/doc/555882/>, and at <http://indiacode.nic.in/coiweb/coifiles/p04.htm>.

39.Id.

40.inDia conSt., pt. IV, art. 41, available at <http://www.indiankanoon.org/doc/1975922/>, and at <http://indiacode.nic.in/coiweb/fullact1.asp?tfnm=00%2052>.

41.See Alston et al, supra note 33 at 323–27, (discussing Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 18 [right to life and to livelihood], Petition (Civil) No. 196/2001 People’s Union for Civil Liberties v. Union of India & Ors [addressing petitioners’ “right to life and the right of food of those who can ill-afford to provide to their families two meals day “],State Of Karnataka vs Appa Balu Ingale et al., A.I.R. 1993 S.C. 1126,[addressing a right to water from discrimination], Aquaculture case: S. Jagannath v. Union of India & Ors, A.I.R. 1996 S.C. 1592 [asserting a right to livelihood of traditional fishing communities], and Samatha vs State of A.P. and Ors., A.I.R. 1997 S.C. 3297 [establishing “the right to livelihood of scheduled tribes against the acquisition of land by a private company,” see Alston et al, supra note 33 at 325]).

42. Alston et al, supra note 33 at 321–27.

43. [European] Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953), available at <http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG>.

44. International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, (entered into force Jan. 3, 1976), available at <http://www2.ohchr.org/english/law/cescr.htm>.

45. ScotlanD’S future, supra note 21.

46. Clapham, pp. 57-63; Jack Goldsmith & Eric Posner, tHe liMitS of international law (2005).

47. Cf Arabella Thorp & Gavin Thompson, Scotland, independence and the EU, House of Commons, International Affairs and Defence Section, Economic Policy and Statistics Section, Standard Note SN/IA/6110 (8 Nov. 2011) (noting the E.U. Treaty does not explicitly outline rules

on succession) available at <http://www.parliament.uk/Templates/BriefingPapers/Pages/BPPdfDownload.aspx?bp-id=SN06110>, with Jo E. Murkens, Scotland’s Place in Europe, The Constitution Unit, University College London, School of Public Policy, p4 (2001) (suggesting treatment of an independent Scotland will hinge on the “rules governing succession to multilateral treaties in general and [] individual examples of changes to the territorial application of the EU Treaty,” with particular regard to the terms of the Vienna Convention on State Succession in Respect of Treaties) available at <http://www.ucl.ac.uk/spp/publications/unit-publications/68.pdf>.

48. Vienna Convention on Succession of States in respect of Treaties, art. 34(1), Aug. 23, 1978, 1946 U.N.T.S. 3. Which establishes:

When a part or parts of a territory of a State separate to form one or more States, whether or not the predecessor State continues to exist: a) any treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed; […]” Id.

49. See e.g. Murkens, Scotland’s place in Europe, supra note 44, at 8 (noting “there are numerous and severe difficulties relating to the assumption that the EU Treaty will continue to apply by virtue of Article 34(1)”).

50. Treaty Status of the Vienna Convention on succession of States in respect of treaties, uniteD nationS treaty collection, <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXIII-2&chapter=23&lang=en> (from the homepage, select “Databases,” then follow “Status of Treaties,” select “UN,” search for “Chapter XXIII,” “Section 2.”).

51. See generally MalcolM SHaw, international law 686–95 (4th ed., 1997). Shaw discusses, for example, the use of a “clean slate” approach in the instance of Belgium’s secession from The Netherlands in 1830, Cuba’s secession from Spain in 1898, and Panama’s secession from Colombia in 1903. See also reStateMent (tHirD) of u.S. foreiGn relationS law, SuBcHaPt. c: SucceSSion of StateS.

52. Letter from European Commission President José Manuel Barroso to the House of Lords Economic Affairs Committee regarding the status of EU membership for Scotland in the event of independence (10 Dec. 2012), <http://www.parliament.uk/documents/lords-committees/economic-affairs/ScottishIndependence/EA68_Scotland_and_the_EU_Barroso’s_reply_to_Lord_Tugendhat_101212.pdf>.

53. Treaty on European Union, art. 49., Feb. 7, 1992, O.J. (C 191) available at <http://eur-lex.europa.eu/en/treaties/dat/12002M/htm/C_2002325EN.000501.html> [hereinafter TEU]. Article 49 states:

Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union. It shall address its ap-plication to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members.

The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the ap-plicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements. Id.

54. See e.g. KlauS-Dieter BorcHarDt, tHe aBc of euroPean union law, 19–24 (2010) (discussing the fundamental values of the European Union as “lasting peace, unity, equality, freedom, solidarity and security”) available at <http://europa.eu/documentation/legislation/pdf/oa8107147_en.pdf>. See also Treaty on European Union, supra note 50 at art. 2. Article 2 of the TEU states the values of the Union as follows:

The Union is founded on the values of respect for human dignity, free-dom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. Id.

55. The European Union was awarded the Nobel Peace Prize in 2012, “for over six decades contributed to the advancement of peace and reconciliation, democracy and human rights in Europe.” European Union (EU), noBelPrize.orG. 10 Feb. 2013 <http://www.nobelprize.org/nobel_prizes/peace/laureates/2012/eu.html> (last visited Feb. 10, 2013).

56. Prime Minister David Cameron, Speech on the E.U., at Bloomberg (23 Jan. 2013), <http://www.number10.gov.uk/news/eu-speech-at-bloomberg/>. Following the speech, media reported a wave of criticism from European leaders. See e.g. Steven Brown & Mark John, Selfish, ignorant, dangerous: Europe’s verdict on Cameron speech, reuterS.coM (Jan. 23, 2013 7:45am EST), <http://www.reuters.com/article/2013/01/23/us-britain-europe-reaction-idUSBRE90M0MY20130123>.

57. See e.g. Andy Philip, ‘Fundamentally confused’: Alex Salmond slams David Cameron’s EU speech, tHe inDePenDent, 23 Jan. 2013, <http://www.independent.co.uk/news/uk/politics/


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fundamentally-confused-alex-salmond-slams-david-camerons-eu-speech-8463362.html> (reporting First Minister Salmond’s response that Prime Minister David Cameron’s speech was “fundamentally confused,” “painfully short on detail,” and “completely changed” the dialogue surrounding the Scottish referendum.).

58. Jo Shaw, EU Citizenship and the edges of Europe, European Research Council, CITSEE Working Paper Series, 2012/19 (University of Edinburgh School of Law 2012) (discussing the evolving nature of EU citizenship, the impact of an “activist” European Court of Justice on EU citizenship, and other factors affecting EU citizenship). Shaw assesses the approach of some policy makers suggesting “legal reality can follow political reality” in the event of Scottish independence, and also observes that the positive dialogue in Scotland towards EU citizenship are unique among other forces across Europe detracting from the importance of the role of EU citizenship in shaping the governance problems facing Europe. Id.

59. c.f. aMeraSinGHe, PrinciPleS of tHe inStitutional law of international orGanizationS 111–112 (2d ed. 2005).

60. Jan KlaBBerS, an introDuction to international inStitutional law 115 (2002).

61. Russia’s assumption of the permanent seat on the U.N. Security Council formerly held by the Soviet Union was completed through notification to the Council, through a letter from Russian President Boris Yeltsin, of Russian’s succession to the seat. See End of the Soviet Union; Soviet U.N. Seat Taken by Russia, n.y. tiMeS (Dec. 25, 1991), <http://www.nytimes.com/1991/12/25/world/end-of-the-soviet-union-soviet-un-seat-taken-by-russia.html>. The letter read simply, as follows:

I have the honour to inform you that the membership of the Union of Soviet Socialist Republics in the United Nations, including the Security Council and all other organs and organizations of the United Nations system, is being continued by the Russian Federation (RSFSR) with the support of the countries of the Commonwealth of Independent States. In this connection, I request that the name “the Russian Federation” should be used in the United Nations in place of the name “the Union of Soviet Socialist Republics”.

The Russian Federation maintains full responsibility for all the rights and obligations of the USSR under the Charter of the United Nations, includ-ing the financial obligations.

I request you to consider this letter as confirmation of the credentials to represent the Russian Federation in the United Nations organs for all the persons currently holding the credentials of representatives of the USSR to the United Nations.

Letter to the Secretary-General of the United Nations from the President of the Russian Federation (Dec. 24, 1991) (on file with the International Atomic Energy Agency), available at <http://www.iaea.org/Publications/Documents/Infcircs/Others/inf397.shtml#att2>.

62. Severin Carrell, Alex Salmond Gains Slim SNP Vote for Joining Nato, tHe GuarDian, (Oct. 19, 2012), <http://www.guardian.co.uk/politics/2012/oct/19/alex-salmond-snp-vote-nato> (citing a narrow vote of 394 to 365 at an annual SNP conference to shift the party’s policy to support membership in NATO, in the event of a yes vote in a Scottish referendum in 2014).

63. See generally House of Commons, Scottish Affairs Committee—Fourth Report, The Referendum on Separation for Scotland: Terminating Trident-Days or Decades?, (23 Oct. 2012), <http://www.publications.parliament.uk/pa/cm201213/cmselect/cmscotaf/676/67602.htm>.

64. See generally Nugzar Dundua, Delimitation of maritime boundaries between adjacent States, United Nations—The Nippon Foundation Fellow (2006–2007), <http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/dundua_0607_georgia.pdf> (observing that the median line is “one method among others,” and that principals such as equity and proportionality must also be weighed, along with considerations such as geographical circumstances, islands, socio-economic circumstances, conduct of states, security considerations, and historic title).

65. Articles 74 and 83 of the United Nations Convention on the Law of the Sea provide guidelines for assessing territorial disputes between States with opposite or adjacent coasts. See generally U.N. Convention on the Law of the Sea 1833 U.N.T.S. 397 (entered into force Nov. 16, 1994; the U.K. acceded to the Treaty on Aug. 24, 1997).

66. HM Government, Scotland analysis: Devolution and the implications of Scottish independence (February 2013), and Annex A Opinion: Referendum on the Independence of Scotland—International Law Aspects (Professor James Crawford SC and Professor Alan Boyle), at <https://www.gov.uk/government/publications/scotland-analysis-devolution-and-the-implications-of-scottish-independence> (hereafter Scotland analysis and Annex A and together, the HMG opinion).

67. Initially at Scotland analysis pars. 2.5-2.52 and Annex A pars. 50-70.

68. Scotland analysis pars. 2.27-2.52.

69. Scotland analysis pars. 3.1-3.21 and Annex A pars. 116-184.

70. Annex A par. 37. See further Annex A pars. 26-49; Scotland analysis pars. 2.21-2.23.

71. Scotland analysis pars. 2.16-2.17; Annex A par. 93.

72. Scotland analysis par. 3.50.

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