Scottish Statehood and Continued Membership of the European Union: do we still have no answers?
| DOI | 10.3366/elr.2015.0305 |
| Published date | 01 September 2015 |
| Author | |
| Date | 01 September 2015 |
| Pages | 414-419 |
Arguments concerning Scotland's membership of the EU resolve themselves in what appears to be a mundane technical point regarding the appropriate treaty article governing the process. One school of thought suggests that Scotland would have to rely on the ordinary accession procedure through article 49 of the Treaty on European Union (“TEU”), whereas others suggest that article 48 governing treaty amendments would be the more appropriate route. The disagreement stems from an unclear treaty basis. The TEU does not contemplate a situation in which a sub-state region within the territory of the EU democratically determines to become a state within the union. Underpinning the opposing views are assumptions that Scotland would either (i) leave the EU when it left the UK and would therefore have to apply for readmission, or (ii) that Scotland and its people would remain in the EU and would need only to re-order their relationship through amendments to the treaties.
There is some merit in the suggestion that dissolving the relationship with the UK would result in concurrent withdrawal from the UK's international agreements. Crawford and Boyle suggest that the rest of the United Kingdom (“rUK”) would be the continuator state, whereas Scotland would start its international life afresh.
J Crawford and A Boyle, “Opinion: Referendum on the independence of Scotland – international law aspects” in Devolution and the Implications of Scottish Independence (Cmnd 8554: 2013), Annex I, paras 25–115.
The Irish Free State, which provides the only precedent for the secession of one of the UK's nations from the union, was deemed to be a new entity in international law in 1921.Crawford & Boyle (n 2) paras 65–70.
Nevertheless, the historical record suggests that the cases of Ireland and Scotland are distinguishable. Scotland voluntarily became party to a union of equals by virtue of a treaty and subsequent act of a sovereign Scottish parliament. Conversely, Ireland was conquered and colonised.
A Carty and M Clyde, “Scotland and England from a union of parliaments to two independent kingdoms” (2014) 2 London Rev of Int L 299 at 313–314.
The Act of Union 1801 abolished an Irish Parliament whose powers and membership had long been circumscribed by England. Indeed, Crawford and Boyle acknowledge that most authors view “the incorporation of Ireland notTo continue reading
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