This is an act of breathtaking arrogance by the UK government which completely shatters their claim that Scotland is an equal partner within the existing UK – it will only serve to boost support for an independent Scotland.
Furthermore, the opinion they are relying on is just that – an opinion. It is not fact. Eminent authorities like Professor David Scheffer and Dr Andrew Blick have already expressed very different views.
For the UK government to argue that the UK will be a ‘continuing state’ and that an independent Scotland would have no rights betrays a near colonial attitude to Scotland’s position as a nation and gives lie to any suggestion that they see Scotland as an equal partner in the UK. It also raises a very important question for the UK government – if they are prepared to lay claim to the assets of the UK are they also prepared to take on all of its liabilities, such as the UK national debt?
The reality is that the status of Scotland and the rest of the UK following a ‘Yes’ vote in Autumn 2014 and before Scotland became independent in 2016 will be determined not by assertions of law, but by negotiation and agreement. That is the only and overwhelming lesson that can be drawn from the many international precedents that exist.
The fact of the matter is that this is an opinion – no more, no less. Other constitutional and legal experts take a completely different view. For example, Professor David Scheffer, constitutional law expert and former US ambassador, said only recently that ‘…the break up would be viewed as two successor states of equal legitimacy – not size, wealth or power, but legitimacy…this means a continuation for both states.’
And Dr Andrew Blick of the Centre for Political and Constitutional Studies at King’s College London, told the House of Commons Foreign Affairs Committee, that ‘in my view, there is a legal case for saying the UK is dissolved and that there are two successor states.’
The reality is that there is neither a settled international legal position nor any consistent precedent in these matters.
What has happened in practice – including in examples cited by the UK government – is that agreement has been reached on the status of the existing and newly independent states. In other words, it has not been a matter of law, but of negotiation and agreement. So, in the case of Serbia and Montenegro (cited by the UK government), both countries agreed to Serbia being the continuing state – it was not settled as a matter of law. Similarly, in the case of the USSR (also cited by the UK government), the ex-Soviet Republics that became the CIS agreed to Russia being the continuing state.
Conversely, in the case of the Czech Republic and Slovakia (ignored by the UK government), both countries agreed to be co-equal successor states.
The fact is that international precedents – even those cited by the UK government – prove the point that these are matters to be settled, not by law, but by sensible and mature negotiation that reflect the particular circumstances of the countries involved: reflecting the letter and spirit of the Edinburgh Agreement, signed up to only last October by David Cameron as well as the Scottish Government.
That is exactly what will happen if Scotland chooses to be independent. We will reach a sensible agreement with the rest of the UK about the transition to independence – an agreement that will respect the democratic wishes of the Scottish people, reflect our particular circumstances and recognise the shared mutual interest that we will have in such an approach.
For the Westminster government to suggest otherwise displays a high handed arrogance and complete disregard for democracy that will only increase support for independence.