• Facebook
  • Facebook
  • Facebook
  • Facebook

Search This Blog

Loading...
Visit our new website.

Tuesday, February 05, 2013

Scottish independence and EU accession: tricky to pull off in one manoeuvre?

The SNP Scottish Government has today released its 16 page plan for independence in which it envisages an independent Scotland within the EU. The document does show they have attempted to address earlier criticisms and grapple with the myriad of legal questions Scottish independence throws up, but troubling issues of EU law remain. So what are the potential problems?

The SNP's new plan is based on its belief that "negotiations will be required in advance of independence with the European Union to agree terms of an independent Scotland's continuing membership."

However this would seem to contravene EU law. The EU has a clear process for EU accessions set out in Article 49 of the Treaties as follows:

"Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account."
 
So to apply to be an EU state you must firstly be a state, (i.e. not a pre-independent state) and that, once an application is received by the European Council, all EU states would have to agree to membership. There seems to be little room for ambiguity and is helpfully explained on the EU's own website here.

And if this was not enough, the EU, under Article 4, has a responsibility to "respect the equality of Member States before the Treaties as well as their national identities...including ensuring the territorial integrity of the State." It is difficult to see how negotiating with Scotland pre-independence would conform with that duty. Something Spain would probably point out even if the UK did not.

Even if informal negotiations were opened, 
could the EU conclude any of the negotiating chapters with a non candidate non state (probably not), could Scotland prove it has the capability to live up to its EU responsibilities prior to independence (again probably not) and how long would the negotiations take - probably years.

But this comes to the biggest problem for Scotland. They would need to get all 27 states' approval. Unfortunately for Scotland some states have a strong principled opposition to succession. Spain, Romania, Cyprus and Greece (and the EU) for instance still do not recognise Kosovan independence. Scotland's potential case is obviously very different, being based on consent, but the principled opposition, from other member states, could be the same. There are also unexpected bilateral issues that any EU state (apart from the UK) may wish to bring up, fish is perhaps the obvious one (and troubled Norway's accession negotiations) but for the sake of argument the
sovereignty of Rockall could be another. It is difficult to tell -  Croatia's EU bid was held up for years by a dispute over maritime access with Slovenia.

And that is even before Scotland raises the question of opt-outs to the euro, Schengen, fish and issues surrounding the UK rebate, budget and the number of MEPs it might want...

Of the 27 states that need to agree a number are wary of breakaway regions:




16 comments:

Anonymous said...

Doesn't this analysis presume that Scotland would be a new state seeking application, and treated as such, like any other?

The situation where a member state has fissioned into two new states has never happened before in the EU, and there's nothing in the treaties that make it clear what would happen in that case.

The EU have commented previously that they are happy to make it clear what would happen in such a situation, but they need to be asked by a member state about a specific scenario. For some reason, David Cameron hasn't popped a letter in the post asking them, despite the massive propaganda boost that a negative answer would give the No side in the referendum.

I wonder why not?

There are other legal oddities of course. All 5 million citizens of Scotland would remain as EU citizens, regardless of Scotland the state's membership status - for example.

All the other stuff - Rockall , fish etc - is only relevant if you make the initial, large assumption you have made - and even then, pfft. And plenty of "experts" are split over that - that's the very heart of the matter that you have avoided.

Rik said...

Fully agree on pure legal grounds it is a no go. So you need politics to overrule that to make it work.

That will not happen either in the present situation. Spain eg will not agree. Which means not politics but legal will decide (so a no go).

The only way they can pull it off for Scotland is if they wait till Catalunya and Co have been settled. Legally a no go, but in practice Spain simply needs Catalunya be part of the EU so likely there political arrangements are possible. If that is done that way and no other unconvenient splits arise (Belgium or Italy come to mind), Scotland probably will be able to negotiate itself in.

The referendum in that respect simply looks to be too early. Anyway this is managed on the legal side in the most clumsy way possible. And it shows to the voter (which makes thing a much larger problem). Who wants independence in order to be ruled by people who got the very simple legal facts wrong two times in a row (and big time wrong as well).
Showing that you are an incompetent moron is not the way for a new kid on the block to get elected (or win a referendum).

Open Europe blog team said...

Hi Anonymous, happy to answer your question. EU citizenship is defined in the treaties as being dependent on holding the nationality of a member state: "Every person holding the nationality of a Member State shall be a citizen of the Union" (Article 20). So EU citizenship would lapse if Scotland were to leave the EU. There is also interestingly a precedent - French Algeria, a part of France, left the EEC on independence from France. In international law it is the UK that is a member of the EU.

libra said...

Very interesting post,
Just one comment:
To describe many Italian regions as "secessionist" is in my opinion completely wrong. At most, you' could describe one party (the Northern League) as "autonomist", but there is nothing in common between the situation in the north of Italy and Scoltand or Flanders or the Basque Country.

Rollo said...

It is impossible to gain independence and stay in the EU: the two things cannot exist together. In the EU they will become a tiny colony of the EU, with no standing and no voice; a sort of Malta of the North, without the charm.

Ray said...

It's alarming that apparently Scotland would rather join a fascist state than remain part of a relatively13642 free UK. This is a nasty political justification of the snp's existence, I don't believe for a minute the real people of Scotland would want this.

William Forbes said...

Here is what the Irish Minister for Europe said the other day, after being misrepresented by the BBC: Dear Nicola,

I want to thank you for a brief but informative meeting yesterday. I am concerned that an interview which I conducted with the BBC is being misconstrued and wanted to assure you that it certainly was not my intention to interfere in any way with your domestic debate.

It certainly was not my intention to intervene in the Scottish debate about the future of your country. As I stated clearly to the BBC (though perhaps they did not show it) this is a question exclusively for the Scottish people and I fully respect that fact.

I was asked about the future of negotiations with the EU in the event that Scotland votes for independence. I thought that my reply was largely in line with that of the Scottish Government. I certainly did not at any stage suggest that Scotland could, should or would be thrown out of the EU. Scottish people are clearly citizens of Europe.

I did answer the question about hypothetical negotiations with the EU. I think it is clear that a newly independent state would have to (and would have the right to and indeed should) negotiate the terms of membership, as they would undoubtedly be somewhat different to the existing terms. I did say that this would take some time, which I expect it would. I also went on to say that a newly independent Scotland would be welcome as an EU partner (and I think that applies to all EU member states including Ireland).

My understanding is that the Scottish Government has already committed to a negotiation with the EU between 2014 and 2016, if you vote for independence in 2014. If my interview suggested something other than that, this was not my intention. I think my comments have been misconstrued. I sincerely regret this.

As SNP Westminster Leader, Angus Robertson said ‘Negotiations on the terms of membership would take place in the period between the referendum and the planned date of independence’, and that ‘The EU would adopt a simplified procedure for the negotiations, not the traditional procedure followed for the accession of non-member countries’.”

I think that sums up the situation quite well.

I hope that this clarifies my position, and again I regret that my words seem to have been presented or taken out of context.

Warm regards,

Lucinda Creighton

William Forbes said...

Here is what the Irish Minister for Europe had to say on this subject in an e-mail to the Scotland's Deputy First Minister, following a BBC report that misrepresented her and her Government's position:

Dear Nicola,

I want to thank you for a brief but informative meeting yesterday. I am concerned that an interview which I conducted with the BBC is being misconstrued and wanted to assure you that it certainly was not my intention to interfere in any way with your domestic debate.

It certainly was not my intention to intervene in the Scottish debate about the future of your country. As I stated clearly to the BBC (though perhaps they did not show it) this is a question exclusively for the Scottish people and I fully respect that fact.

I was asked about the future of negotiations with the EU in the event that Scotland votes for independence. I thought that my reply was largely in line with that of the Scottish Government. I certainly did not at any stage suggest that Scotland could, should or would be thrown out of the EU. Scottish people are clearly citizens of Europe.

I did answer the question about hypothetical negotiations with the EU. I think it is clear that a newly independent state would have to (and would have the right to and indeed should) negotiate the terms of membership, as they would undoubtedly be somewhat different to the existing terms. I did say that this would take some time, which I expect it would. I also went on to say that a newly independent Scotland would be welcome as an EU partner (and I think that applies to all EU member states including Ireland).

My understanding is that the Scottish Government has already committed to a negotiation with the EU between 2014 and 2016, if you vote for independence in 2014. If my interview suggested something other than that, this was not my intention. I think my comments have been misconstrued. I sincerely regret this.

As SNP Westminster Leader, Angus Robertson said ‘Negotiations on the terms of membership would take place in the period between the referendum and the planned date of independence’, and that ‘The EU would adopt a simplified procedure for the negotiations, not the traditional procedure followed for the accession of non-member countries’.”

I think that sums up the situation quite well.

I hope that this clarifies my position, and again I regret that my words seem to have been presented or taken out of context.

Warm regards,

Lucinda Creighton

Denis Cooper said...

As I very much want the UK to stay together perhaps it would be more politic for me not to challenge any of the myths that the Unionist side will propagate in their attempts to frighten the Scots into voting against separation, but in the interests of truthfulness I have to repeat my prediction that in the event of a "yes" vote in the referendum Cameron and Salmond would collaborate very closely in efforts to ensure a seamless transition from the present UK being one EU member state to Scotland and the rest of the UK being two separate EU member states.

Both Cameron and Salmond would do whatever they could to avoid the situation arising whereby Scotland was no longer part of the EU Single Market, even for a microsecond, and therefore as the Prime Minister of the present EU member state Cameron would propose the use of Article 48 TEU to make the necessary changes to the EU treaties.

That there would have to be changes to the EU treaties is in my view beyond question, given that the word "Scotland" does not even appear anywhere in the present treaties and obviously Scotalnd could not become an EU member state in its own sovereign right without its name appearing in the EU treaties, above all in the list of High Contracting Parties to the treaties, where it would be inserted between Portugal and (what would then be the rest of) the UK.

However some of the other EU member states might well try to extract a price for their agreement to those necessary treaty changes, and it's unlikely that the outcome would be welcome to anybody in the UK either side of the border, apart from the very small eurofederalist minority.

Denis Cooper said...

William Forbes -

Lucinda Creighton is ignoring the legal reality that Scotland would not yet be an independent state between 2014 and 2016, even if the Scots had voted for independence in 2014, but instead would still be part of the UK and with the UK Government and Parliament still responsible for its international relations, including EU relations, as a reserved matter under the relevant UK law, Schedule 5 of the Scotland Act 1998, which would still be in force; therefore at that time the Scottish Government would have no independent legal standing to negotiate with the EU or its member states about the future EU membership of Scotland in its own sovereign right.

jon livesey said...

The latest survey in Scotland show support for independence at a whopping 26%.

Salmond and the "helpful" Irish Minister are simply taking people for a ride by talking about independence as if it can be taken for granted and the important issue is EU membership.

Scottish independence isn't going to happen. it's as simple as that.

Anonymous said...

You know as well as I do that if a country is part of the EU it has no control of its laws or borders. And a country that has no control of its laws an borders is not independent.

End of!

Charles Campbell said...

First of all, let's get rid of all this nonsense about the small, unrepresentative polls of today having any relevance whatever to the referendum result. The momentum of the SNP campaign at the last election was totally undetected by the pollsters, whose credibility was demolished as surely as the vote of the unionist parties.

The campaigning proper has not really got off the ground yet, being bogged down in minutiae which can only have served to turn off the electorate.

When the logical case for independence is presented, not just by the politicians but also - and, more importantly - by those outwith the political bubble, a momentum will build as the day of decision draws near.

The cause of Scottish independence has many enemies, whether outside Scotland or the vested interests within Scotland's unionist parties, so we can only expect an onslaught of propaganda and dirty tricks between now and the big day, but I hope and expect that the essential argument will prevail - that the people of Scotland are the best people to make the best decisions for the future of our nation.

The SNP is merely the conduit for achieving independence and there will be those who share their ultimate goal without necessarily agreeing with all aspects of the SNP's post-independence narrative. To give but two examples of where I personally disagree: there seems no point in a new, modern democracy with a written constitution wishing to retain an outdated monarchy which sits atop the undemocratic and indifferent Westminster system from which we so badly wish (and need) to escape. Secondly, I have always considered the SNP mantra "independence in Europe" to be an oxymoron, particularly as the EU becomes ever more dysfunctional, corrupt, subsuming and anti-democratic.

Once independence is achieved, everything must be up for discussion and decided by the electorate, not the politicians.

The opportunity for independence to give us a referendum on EU membership is a big positive, not a source of worry.

Moreover, Scottish independence will offer England a great opportunity to breathe some life into corrupt, dysfunctional Wastemonster, where politicians are no better than party puppets in hock to big business.

Les Blake said...

Much has been said on the subject of Scotland becoming an independent state and setting up a government with no ties to the present United Kingdom Government, and most of it has been very negative in its bias.

I fully understand that the break up of the United Kingdom will create a need for an independent Scotland to re-apply for membership of the EU and I also understand that that application may take years to achieve, a political goal that I as a voter have no control over.

However let us consider what is actually being said here.

Scotland, if the yes vote appears, would become completely independent of the Westminster Government and due to that fact would also negate the Treaty of Union created, all those years ago, by James VI of Scotland/James I of the United Kingdom to unite the countries together in 1707. This then means that if Scotland becomes independent once more then it has to be assumed that the United Kingdom also ceases to exist.

http://www.parliament.uk/about/living-heritage/evolutionofparliament/legislativescrutiny/act-of-union-1707/

http://www.legislation.gov.uk/aosp/1707/7/contents

http://cranntara.org.uk/treaty.htm

http://en.wikipedia.org/wiki/Treaty_of_Union

If that is the case the countries of England, Wales and it's protectorates would also have to re-apply for membership of the EU as it will no longer be the "state" that that existed when the original application for membership of the EU took place (i.e. it would no longer consist of the TOTAL number of smaller states that formed the United Kingdom at that time).

As stated at the top of this comment much has been written on the negatives of Scotland becoming an independent nation and of its need to re-apply for EU membership but we need to remember that this is a double edged sword that is in play here and that what is good for the goose will also have to be good for the gander

Anonymous said...

It would appear that the best thing for England, Wales, and Ulster would be for the Scots to vote for independence. This would get us all out of the eussr, and hopefully stay out. For Westminster the loss of having to pay out to support the eussr, and indeed Scotland, would mean a boost to the nations coffers and the ability to recover more speedily than at present. So please Scots leave the uk and let us all be free.

Anonymous said...

With 12 months to go until voters in Scotland are asked to say Yes or No to the referendum question “Should Scotland be an independent country?”, the bulk of Britons have no say in an issue vital to their future – the possible break up of their nation. A recent poll of British opinion outside Scotland has 53 per cent rejecting separation. The same poll within Scotland points to the effectiveness of the growing campaign against the separatists, maintaining a healthy lead – 44 per cent no with the separatist yes at 25 per cent. Among those ‘certain to vote’ 52 per cent are against, with 28 per cent in favour.
The resulting large numbers of those undecided, the volatility of polling and danger of low turnout on the day, means hard work must be done to win this argument decisively. By re-uniting British workers and the trade union movement we have the potential to reverse our impoverishment and to rebuild and transform Britain.
Such unity should be a foregone conclusion. After all it was the Britain-wide solidarity, forged in adversity by trade unions in the 19th century, that was the biggest factor in creating British society, pulling together the threads of social and cultural interaction, creating a British nation. Separatists are blind to this development; their minds leap from feudal myth straight to the present day. And it was the hopes and demands of our common struggle against Nazism in World War 2 that gave birth to the all-Britain provision of education, healthcare and arts funding that workers strive to defend today.