Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

How to Become a Global Actor: Scotland's International Legal Personality

Document Cited authorities 1 Cited in Related
Vincent
Pages434-440
DOI10.3366/elr.2020.0659
Date01 September 2020
Published date01 September 2020
INTRODUCTION

The EU exit has bolstered Scotland's international ambitions. The Scottish Government has indicated that it wants the power to “conclude international agreements in areas of Scottish Parliament responsibility” and the “ability to speak in international forums and to secure agreements with other countries”.1 These powers could be achieved “either through an arrangement with UK Government or by virtue of an independent international legal personality”.2

As this note will explain, nothing in international law prevents the UK Government from conferring treaty-making powers on Scotland, or from enabling it to speak in international forums. Instead, Scotland's ambitions are limited only by domestic politics.

It is difficult to overstate the importance of the issue. The departure from the EU has fundamentally changed the context for treaty-making in the UK.3 The UK has re-acquired the competence to negotiate treaties in a wide range of politically sensitive areas for Scotland, which were previously delegated to the EU – such as fisheries and trade. Indeed, the UK's ability “to sign and implement ambitious free trade agreements” and “take back” control over fisheries have been pillars of the UK Government's manifesto for EU exit.4 New agreements realising these prospects will affect Scotland for generations to come.

While the Scottish Parliament can legislate on some issues, such as fisheries, it has no powers to enter into formal negotiations with international parties to address Scottish interests. A recent report from the House of Lords Select Committee on the Constitution did not “see the need for the devolved legislatures to provide explicit consent to treaties” but it did state that the UK Government “must take their views into account”.5 The Scottish Government, however, has emphasised that:

…it must be involved directly in shaping the UK position as well as with any discussions with other countries in order to reflect and protect Scotland's interests. We have yet to have confirmation from the UK Government that this will indeed be the case, that we will be treated as an equal partner and assume the lead negotiating role where we have the majority interest.6

The international legal personality of sub-state actors is a little investigated subject.7 This note cannot cover this complex matter in its entirety. Instead, it considers only whether Scotland can obtain international legal personality and what this entails, focussing on the capacity to enter into international agreements. The note clarifies, in the first place, what international legal personality entails for sub-state actors. It then considers in detail the powers of some sub-state actors to enter into international agreements, providing examples from practice. The note concludes providing some reflections on how Scotland could obtain international legal personality INTERNATIONAL LEGAL PERSONALITY: WHAT DOES IT MEAN?

International legal personality essentially means that an entity is “capable of possessing international rights and duties and that it has capacity to maintain its rights by bringing international claims”.8 The principal context in which questions of international legal personality arise is in relation to entities other than sovereign states and their capacity to act on the international plane, for instance, by making binding agreements with other international actors.9 In analogy to...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT