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A Separate or United Kingdom: The context and consequences of the independence referendum

Should Scots vote for independence, this will be the first case of secession from an EU member state. There is no precedent which would suggest whether or not an independent Scotland would (automatically) become an EU member state and whether Scots would retain rights stemming from EU citizenship. Analogies have been attempted with Algeria and Greenland, but they crucially differ from Scotland in law and fact. Algeria was effectively a French colony, although formally a Department, and its independence was a matter of decolonisation. This is not the case in Scotland. Greenland remained under Denmark’s authority, but exited what was then the European Economic Community (EEC). Scotland is seeking to do the opposite – leave an EU member state and remain in the EU.

The EU is based on international treaties. When new states emerge, some treaties indeed continue to apply in the territory of the new state, if the predecessor state was a party to them. The treaties regulating human rights and humanitarian matters are particularly known to operate in this way. However, there is no such automaticity where treaties that establish international organisations are concerned. Strictly speaking, the EU is not an international organisation, but such an analogy can be established for our purposes here. The UN Charter is also a treaty and an independent Scotland would not accede to it automatically, either. It would need to apply and become a member anew. The same would happen with its EU membership. By becoming independent, Scotland prima facie also exits the EU. However, there is a structural problem in EU law about such an exit.

Article 50 of the Treaty on European Union (TEU) only foresees a situation where an EU member state exists as a whole, it does not regulate an exit of only a part of its territory. After Scotland’s exit, rump UK (rUK) would be a smaller state in terms of geography and population. As such, it would be overrepresented in EU institutions if it simply kept the same level of representation and votes the UK currently has. When an EU member state wishes to withdraw, Article 50, TEU, requires negotiations on the arrangements of the withdrawal. It is arguable that the provision could be applied to Scotland by analogy (although this would not be withdrawal of a member state as a whole). Negotiations would need to be conducted in good faith and should result in amendment of EU treaties to acknowledge an independent Scotland and a diminished UK. The result of such negotiations could be Scotland’s accession to the EU at the moment of independence. EU law would thus never cease to apply in Scotland and Scots would never lose their EU citizenship. Such an outome may be politially likely and would be an elegant solution, but there is no legal automaticity and the result is not predetermined. The negotiations could become complicated and uncertain for reasons which have little to do with Scotland but rather with internal matters of present EU member states (e.g. independence claims in other EU member states).

If membership of the EU is not negotiated in the transitional period, Scots will lose EU citizenship rights. Certainly, those who would retain UK citizenship would still be EU citizens, but Scottish citizenship alone would not carry EU citizenship. However, this does not necessarily mean that all presently-exercised rights stemming from EU citizenship would be lost at the moment of independence. In Kuric v Slovenia, the European Court of Human Rights (ECtHR) ruled that once you have legally established permanent residency in a certain state, you keep the right of residence, even if the legal status of either your home or your host state changes and, as a result of this change, your new citizenship status alone would no longer give you a right to residence. What matters is that you had the right at the moment of the change of the territorial status.

In the context of the Scottish referendum vote, this decision has implications for the following groups: (i) potential future Scottish citizens residing in rUK; (ii) potential future Scottish citizens residing in other EU member states; (iii) UK citizens residing in Scotland who will not opt for Scottish citizenship; (iv) non-UK EU citizens residing in Scotland who will not qualify or opt for Scottish citizenship. Following the Kuric doctrine, it appears that these categories of people retain their present residence rights as an effect of the European Convention on Human Rights (ECHR), regardless of what happens with Scotland’s EU membership and whether Scottish citizens would also keep UK citizenship. However, the ECHR-effect would only freeze the existing rights. EU citizenship as such would not be retained via Kuric.

In sum, an independent Scotland prima facie exists the EU, unless negotiated otherwise. Politically, it is likely that Scotland’s accession would be negotiated, but there is no determinacy or legal automaticity to this effect. Even if Scotland left the EU, those EU citizens residing in Scotland at the moment of independence, and those Scots residing in EU member states at that moment, would retain their right to residence. This is an effect of the ECHR. This effect only freezes the existing residence right, but does not extend EU citizenship to the new citizens of Scotland.

This post is part of “A Separate or United Kingdom“, our blog series analysing the issues surrounding the Scottish referendum.

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