Negotiating a better pathway to Scottish independence
Earlier this month Whitehall released a report, bolstered with an annexed legal opinion by two distinguished law professors, entitled, Scotland analysis: Devolution and the implications of Scottish independence. The Whitehall report followed my own remarks on the legal implications of Scottish independence at the University of Glasgow in late January.
The Whitehall report merits careful scrutiny in the months ahead. No one doubts that Scottish sovereignty existed more than three centuries ago, whereas in almost all other self-determination movements the clarity of former sovereignty has been absent. Two sovereign nations entered into the Treaty of Union of 1707. That treaty united two countries into “One Kingdom by the Name of Great Britain,” but the Whitehall report opines that “…Scotland certainly was extinguished as a matter of international law, by merger either into an enlarged and renamed England or into an entirely new state.”
Some would strongly disagree with this conclusion and argue that the Scottish people retained their right of self-determination within a distinct part of Great Britain that continued with an autonomous national character (particularly in law, culture, and religion). A major premise of self-determination is to overcome rigid presumptions, particularly where the historical record favors challenging conventional thinking heavily weighted with examples of decolonization. The sui generis character of Scotland derives from its past sovereignty reasserting itself in a modern application of self-determination culminating in the 2014 referendum.
Nonetheless, the Whitehall report presents a fait accompli for the continuation in law of the United Kingdom as the “continuator state” in the event of an affirmative referendum vote for Scottish independence. With its repeated arguments for the continuator theory, the Whitehall report develops further positions reinforcing the continuation of the status quo for the remainder of the United Kingdom (known as “rUK”) while Scotland would be cast off as a new state in almost every respect, to initiate its own treaty relations and membership in international organizations. Thus is built a pyramid of presumptions based upon the initial premise of the continuator theory and yet little of which relates to the sui generis character of the Scottish situation.
The Whitehall report repeatedly emphasizes the scale and complexity of legal issues flowing from Scottish independence, even more so if the continuator theory holds, as the report insists it must. One cannot help but observe a political objective at work in the Whitehall report, namely to make the legal implications appear so burdensome and traumatic for Scotland and its people, particularly under the presumptive continuator theory for the rUK, that voters will decide it is not worth the effort and vote “no” on the independence referendum.
Alas, the Whitehall report presents a false dilemma: If Scotland votes for independence in the referendum, then the rUK will act pursuant to the continuator theory and essentially refuse to cooperate, through negotiations, for a reasonable transition for both Scotland and the rUK that sustains membership in international organizations for both nations and provides an amicably negotiated continuation of treaty relations for both. Indeed, the Whitehall report suggests engaging in negotiations that may have no discernible end, validating the improbability of independence.
The report assumes a confrontational negotiating scenario in the wake of an independence vote rather than a cooperative one. It locks in such confrontation by insisting on the continuator theory and then letting all of the difficulties for a transition flow from that single presumption.
The rules set forth in the 1978 Vienna Convention on Succession of States in Respect of Treaties favor Scotland in creating a more balanced approach to the transition, but are dismissed in the Whitehall report as not yet customary law…