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2013-05-01

Document Cited in Related
Vincent
AuthorDavid McKie,Kenneth G C Reid,James Sloan,Martin Hogg,Greg Gordon,Andrew J M Steven,Liz Campbell
DOI10.3366/elr.2013.0156
Pages224-264
Date01 May 2013
Published date01 May 2013
<p>In early February 2013 the UK government made public the first in a series of reports analysing Scotland's place in the UK entitled “Scotland Analysis: Devolution and the Implications of Scottish Independence”.<xref ref-type="fn" rid="fn1-1"><sup>1</sup></xref><fn id="fn1-1"><label>1</label><p>Scotland Analysis: Devolution and the Implications of Scottish Independence (Cm 8554: 2013).</p></fn> Annex A of the Devolution Report is a legal opinion written by the highly regarded international law experts James Crawford SC, Whewell Professor of International Law at the University of Cambridge, and Alan Boyle, Professor of Public International Law at the University of Edinburgh. The Opinion was requested by the UK government and occasioned by the agreement between the UK and Scottish governments to work together to ensure a referendum on Scottish independence takes place by the end of 2014.<xref ref-type="fn" rid="fn1-2"><sup>2</sup></xref><fn id="fn1-2"><label>2</label><p>Agreement between the United Kingdom Government and the Scottish Government on a referendum on independence for Scotland, 15 October 2012, available at <ext-link ext-link-type="uri" xlink:href="www.number10.gov.uk/wp-content/uploand/2012/Agreement-final-for-signing.pdf" xlink:type="simple"><italic>www.number10.gov.uk/wp-content/uploand/2012/Agreement-final-for-signing.pdf</italic></ext-link>.</p></fn></p> <p>At the outset the Opinion makes clear that the status of an independent Scotland would, in large measure, depend on the political negotiations reached between the governments of UK and Scotland before and after the referendum, and on “whether other states accepted their positions on matters such as continuity and succession”.<xref ref-type="fn" rid="fn1-3"><sup>3</sup></xref><fn id="fn1-3"><label>3</label><p>Opinion, para 1.</p></fn> It is uncontroversial that two independent nation states would result from Scottish independence and, assuming that any independence would occur based on the agreement of both parties, there is little reason to doubt that both would be recognised as such by the international community.<xref ref-type="fn" rid="fn1-4"><sup>4</sup></xref><fn id="fn1-4"><label>4</label><p>The Opinion is premised on an assumption that if Scotland becomes independent it will be with the UK's agreement and not by means of a unilateral secession (para 14).</p></fn> Chief among the relevant legal issues is how international law would characterise an independent Scotland and the remainder of the United Kingdom (“rUK”), as well as how it would characterise the relationship of each to the UK as it currently exists. This characterisation would have a direct impact on the principles that would apply to determining the position of an independent Scotland and the rUK within the various international organisations of which the UK is a member. Three possible characterisations are considered.<xref ref-type="fn" rid="fn1-5"><sup>5</sup></xref><fn id="fn1-5"><label>5</label><p>A fourth possibility, that Scotland would be the continuator state of the UK and rUK would be the new state, is rightly dismissed (Opinion, para 50).</p></fn></p> RUK AS THE CONTINUATOR STATE OF THE UK AND SCOTLAND AS A NEW STATE

The Opinion outlines several examples of states dividing into two or more new states, where one state is considered the continuator of the original state and the other state (or states) is considered a successor to the original state.6

Examples cited include Singapore's separation from Malaysia in 1965, with Malaysia being the continuator state and Singapore becoming a new state; the partition of British India in 1947, with India being the continuator state and Pakistan becoming a new state; the separation of Bangladesh from Pakistan in 1971–72, with Pakistan being the continuator state and Bangladesh becoming a new state; Eritrea's split from Ethiopia in 1993, with Ethiopia being the continuator state and Eritrea becoming a new state; the breakup of Serbia and Montenegro in 2006, with Serbia being the continuator state and Montenegro becoming the new state; and the separation of South Sudan from Sudan in 2011, with Sudan being the continuator state and South Sudan becoming the new state.

In all but one of the cases examined in this category,7

The exception was the separation of Bangladesh from Pakistan. There, while the population of the continuator state was smaller, its territory, Pakistan, was larger. “But the difference in population size was relatively minor, and the central government was based in and dominated by West Pakistan.” (Opinion, para 68.1.)

 the state that retained “the majority of the predecessor state's population and territory”8

Para 68.1.

 and “substantially the same governmental institutions as the predecessor state” was considered to be the continuator state and the other state(s) the successor(s).9

Para 68.2. The continuation of governmental institutions is said there to give rise to “a particularly strong presumption of state continuity”.

Two examples were considered by the authors to be particularly apposite in the circumstances. One...

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