Amy international law experts around?

[andrewducker]

I am confused by some of the reporting around Independence, so hopefully someone can clear things up for me*.

My understanding is that if Scotland becomes independent, then that ends the United Kingdom (which is named after the uniting of the Kingdom of England and the Kingdom of Scotland into one Kingdom). We are not left with The United Kingdom, and "that bit which used to be part of it, but isn't any more". We have two new countries.

So why is it that I keep reading stories about how Scotland will have to renegotiate X and Y with Europe, NATO, the UN, etc. - which also assume that England+Wales+NI won't have to negotiate anything at all. Surely either both new nations will have to negotiate their relationship with various organisations, or both will inherit the relationship from the nation they are successors to.

Anyone care to put me right? Or at least tell me that everyone disagrees?



*Although the experts also seem to be confused, so probably not.

Comments

[cheekbones3]

As far as I understand it, the standard procedure would be for Scotland to secede from the union, and the union therefore still exists as a legal entity. Scotland would probably have to start afresh, join the UN etc, but I don't see why the UK would be affected.

As for the situation where, say, mainland Australia seceded from Tasmania, or the USA seceded from Florida, I think it would be the same, where the secessionists are creating a new country, even if that new country contains the rump of the old one.

[bart-calendar.livejournal.com]

Scotland would become a brand new country that has not existed since well before the EU came about and would not be obligated to follow any treaties that the country they used to belong to signed off on.

Conceptually, the "England and the rest of the bits" would be a new country as well, but from a legal standpoint they'd still be obligated to follow existing treaties because their government would still exist as is and unless a government is dissolved completely treaties still stand.

In other words under international law "United Kingdom" is just a name. If I was to legally change my name I'd still be obligated to honor contracts signed off on under my old name.

[andrewducker]

I can't think of any legal logic that would mean that one part of the UK would be a brand new country with no obligations, while the other part would be left with all of its obligations.

[bart-calendar.livejournal.com]

Because it's the British parliament that signed off on the obligations and that parliament would still exist.

[andrewducker]

A British parliament that was elected by citizens including all of the ones in Scotland, and which covered the Scottish lands.

The fact that one part of the country continues to use one building, while the other part now uses a different building doesn't change anything.

[bart-calendar.livejournal.com]

It does.

A historical example: When the South seceded from the Union kicking off the Civil War the North still had to honor its treaties with England and France, while the newly created Confederate States Of America did not. Even though those treaties were ratified by a Congress that had included citizens from those southern states.

[andrewducker]

I bet that they _chose_ not to honor them. The North could also have chosen to break them, if they'd chosen to. International treaties are like that- if you don't care about good relations with the other side then you can happily decide you're not interested in honoring treaties.

[bart-calendar.livejournal.com]

Sure you can choose to blow off treaties, but in absence of actively blowing them off they stand.

The South didn't choose to blow off any treaties, because they were a new country they didn't have any treaties.

What you are missing is the that UK as a legal entity will still continue to exist, while Scotland will become a brand new legal entity.

It's basic contract law. Say I own Megacompany. Megacompany has contracts with many, many vendors. I decide Megacompany would be better off as two companies. I sell half the company to a third party. There are now two companies "Smallermegacompany" and "Smallnewcompany."

Smallermegacompany which I still own still has to honor its obligations with vendors while Smallnewcompany does not.

[andrewducker]

What you are missing is the that UK as a legal entity will still continue to exist, while Scotland will become a brand new legal entity.

I'm not missing that. I'm disagreeing with it.

And you cannot blow off legal obligations by selling chunks of the company - that would be a massive loophole in contract law.

[errolwi.livejournal.com]

It is standard with contracts in my industry (which are typically expected to last multiple years, with built-in annual rate reviews) that a change in the ownership of one of the parties requires sign-off from the other party. So if you want to sell of part of your business, you have to convince your major customers/suppliers that you aren't doing anything to disadvantage them.
Note the difference between paying for goods and services already carried out, and continuing to supply them at agreed rates and service standards.

[andrewducker]

Exactly. Trying to change your contracts by splitting yourself into multiple companies is just asking for massive lawsuits and attendant problems.

[danieldwilliam.livejournal.com]

Pretty standard practise in industries in which I have worked also.

[iainjcoleman.livejournal.com]

It's all a bit of a grey area. There was a recent House of Commons report that considered the issues, and the summary conclusion was as follows:

If Scotland became independent, would it automatically remain a member of the European Union (EU) – or would it have to go through the whole accession process for new Member States, either alone or alongside the rest of the UK?

This is a major question in the independence debate, and one to which there is no clear answer. There is no precedent for a devolved part of an EU Member State becoming independent and having to determine its membership of the EU as a separate entity, and the question has given rise to widely different views.

There are at least three different possibilities under international law for a newly-independent Scotland: continuation and secession (the rest of the UK would retain its treaty obligations and membership of international organisations, but Scotland would not); separation (both entities would retain them); and dissolution (both would lose them).

Whatever the position under general international law, a decision on Scotland’s status within the European Union is likely to be a political one. If all the EU Member States agreed, then Scotland could continue automatically as a Member State (pending negotiations with the other member states on details of membership, including the number of MEPs to represent Scotland). On the other hand, Member States with their own domestic concerns about separatist movements might argue that Scotland should lose its membership on independence, and hold up or even veto its accession.

EU Member States, with the exception of Denmark and the UK, are expected to join the single currency if and when they meet the criteria. Five of the twelve states joining the EU since 2004 have gone on to join the euro. Whether Scotland joined the euro would have implications for its post-independence monetary policy, and the size of its liability for loans provided to countries facing sovereign debt problems. Finally, Scotland is likely to be a net contributor to the EU Budget (in other words it will pay out more than it receives in structural funding and payments under the Common Agricultural Policy), but the size of this contribution will depend critically on whether it benefits from an abatement (rebate) on the same terms as does the UK currently.

The full report is available here - it's not too long, and surprisingly readable.

[andrewducker]

Thank you, that was really useful!

I suspect that there is no official way of specifying which of the three possibilities is the correct one. I'd go with separation myself, but IANAIL.

[iainjcoleman.livejournal.com]

I think they key point is that it will ultimately be a political, not a legal, judgement.

[gonzo21.livejournal.com]

I would think a lot would also depend on how the rest of the EU decides to view it.

If France and Germany decide that the UK no longer exists and Westminster has to re-apply for everything, then Westminster will jolly well have to re-apply for everything.

So how difficult this process will be for Westminster depends, I think, on how popular we are with the rest of the world.

... So. Yeah. I think England/Wales/Whatever they decide to call themselves, will probably have to re-apply for membership of everything.

[nwhyte]

Yes, I found that convincing. There are precedents both ways, and it will essentially be a political judgement. If I were the rUK government at the time of Scottish independence I would want to make the process as smooth as possible, which really means allowing Scotland to be a joint heir of the UK's current status rather than forcing a renegotiation from the beginning. It's not really in England's interests to block Scotland's EU integration.

Just on a technical point, Andy - the United Kingdom was formed by the Union of 1801, not 1707. The state formed in 1707 was called Great Britain; the state formed in 1801 was the United Kingdom of Great Britain and Ireland (Northern Ireland from 1922).

[andrewducker]

Oh, yes - the name didn't enter official usage until 1801, but I believe it was used colloquially before that. Any idea as to the choice of name?

I assume that the EU has no law which specifically states what the difference between a succession and a continuation are, otherwise this would be nicely clear-cut.

State of the Union

[chaos-monkey.livejournal.com]

Question:
I thought the United Kingdom was 'the United Kingdom of Great Britain and Northern Ireland'.
So it's the Great Britain bit that's changing - not the United Kingdom bit... Yesno?

Which would maybe mean the UK would still exist after the redefinition of Great Britain, and therefore have the same treaties etc... Or that could be rubbish.

Hmm. Let me know if you get anywhere with it - it's interesting!

Re: State of the Union

[andrewducker]

What, exactly, is united, is a good question. I've heard arguments that it means the two crowns of England and Scotland being united, and arguments that it just means "It's a big kingdom, and it's no longer squabbling about who's in and who's out."

Re: State of the Union

[fanf]

From 1707 it was the (United) Kingdom of Great Britain (being the union of Scotland and Englandandwales). From 1801 it was the United Kingdom of Great Britain and Ireland. From 1542 Ireland and Englandandwales shared a crown; and from 1603 they were joined by Scotland. So there were four entangled unions.

Wikipedia suggests that the term "United Kingdom" only became standard after the 1800 act of union.

Re: State of the Union

[steer.livejournal.com]

This video explains it pretty well (and entertainingly):

http://www.youtube.com/watch?v=rNu8XDBSn10

Currently GB refers to essentially (Wales+ Scotland+ England) and UK to (GB + Northern Ireland).

Re: State of the Union

[andrewducker]

See also, 3000 diagrams like this one:
http://bi-gen.blogspot.com/2011/04/uk-gb-bi-etc.html

Re: State of the Union

[0olong.livejournal.com]

That is a good point, I think. It could become 'The United Kingdom of England, Wales and Northern Ireland', or something.

[cartesiandaemon.livejournal.com]

I assume this is just "it'll work the way everyone thinks". Presumably if, say, one constituency was granted independence, everyone would assume the UK would continue acting as the UK. If the UK split into individual counties and equivalents, there wouldn't be any continuity, and everyone would know they'd have to renegotiate stuff they'd arranged with the UK. So I guess... everyone just assumes the "non-scotland bits of the UK" is a lot more like the UK than not like the UK, so expect to treat it as such, and the government is happy to expect and accept that. *shrug*

[drplokta]

When Scotland joined England & Wales in the first Act of Union, it became Great Britain. The United Kingdom of Great Britain and Ireland was only created when Ireland joined a century later, and if it survived losing most of Ireland I expect it can survive losing a bit of Great Britain with another name change to the United Kingdom of England, Wales and Northern Ireland. The legal position is doubtless murkier.

[andrewducker]

As mentioned upthread somewhere, it depends on what the "United Kingdom" bit means. If it means "the unity of the crown of England and the crown of Scotland" then that's one thing, if it means "This whole bit of land that is united under a crown" then that's another.

And, as most people won't care, that's a third :->

[danieldwilliam.livejournal.com]

IIRC James VI and I declared that he was King of Great Britain in 1603 rather than separately King of England and King of Scotland, thus unifying the Crowns. The Treaty and Act of Union in 1707 unified the Parliaments and some bit not all of the apparatus of state.

There was a bit of to-ing and fro-ing over the unification of the crown during the English Civil War and the War of the Three Kingdoms when Charles was crowned King of Scotland.

So Great Britain as a concept pre-dates the 1707 Act.

Of course, we are dealing with a legal and constitutional set up back then that (somewhat) viewed kingship as special and holy and the person of the king as connected with the personhood of the state. The creation of the King of Great Britain meant something to people living in 1603 that perhaps it wouldn’t mean to us if say Elizabeth II declared herself Queen Regnant of the British Isles including the Isle of Man, Jersey etc into one regal entity.

I concur with commentators who have said this is going to be a political judgement.

If I were Salmond I would start to set expectations with bodies like the UN. Specifically, I’d ditch the SNP’s anti-nuclear stand point, claim one of the boomers and demand a seat on the UN Permanent Council thingie.

There is an interesting point out there on the EU which I’m not sure I’ve seen resolved. I am both a citizen of the UK and a citizen of the EU.

Can my citizenship of the EU be revoked by an act of parliament?

[drplokta]

Consider, however, the reductio ad absurdam cases. If one UK citizen renounces their citizenship and claims sovereignty, that does not constitute the breakup of the UK into two parts neither of which counts legally as the UK. Nor does it if Rockall is given to Ireland. So by itself, the loss of citizens and/or territory does not discontinue the UK. So we must ask ourselves at what point does the loss become large enough that the UK has ceased to exist for legal purposes, being replaced by two successor states. The loss of a bit less than 10% of the population may or may not constitute such an event -- I would say it's in the grey area. If it was 1% it definitely wouldn't, if it was 40% it definitely would.

[andrewducker]

Well, if the one person was recognised as a sovereign state internationally, then I'd expect that the EU would continue to recognise their European citizenship.

[steer.livejournal.com]

Hmm... surely it is pretty clear that the England/Wales/Ireland bit remains bound as the parliament, head of state and head of government which signed those parts of the treaty remain within that sovereign entity. I would assume that the remaining UK part will not grant itself a different government or governmental procedures but maintain a continuity of prime-minister and head of state. That is, it's legally more like Scotland becoming independent from the United Kingdom, rather than two new countries being formed. (Scotland will grant its parliament new powers, gain new legal mechanisms etc etc).

[andrewducker]

I'm not convinced it's that simple - the people of Scotland voted for the people that put those treaties in place. Cancelling all of them would seem...odd. I'd say that starting Scotland off with exactly the same treaties as it currently has, and then allowing it to modify them from that point onward would make the most sense.

Scotland, after all, is not emerging from nowhere - its people are currently embedded in treaties and international organisations. Whisking them all out of them and making them start over would seem pretty silly.

[steer.livejournal.com]

Yes, I would say, that the majority of signed treaties will still be binding but I would not assume EU membership would automatically be a given and certainly not a UN veto. The concept we need is that of "Successor state" -- when a state splits into parts then either those can all be considered new entities or one can be considered the "successor state" and the other(s) as new entities.

http://en.wikipedia.org/wiki/Successor_state

from which

"A difficulty arises at the dissolution of a larger territory into a number of independent states. Of course, each of those states will be subject to the international obligations that bound their predecessor[citation needed]. What may become a matter of contention, however, is a situation where one successor state seeks either to continue to be recognised under the same federal name of that of its predecessor or to assume the privileged position in international organisations held by the preceding federation."

So, for example,
"the Russian Federation, was declared the USSR's successor state on the grounds that it contained 51% of the population of the USSR and 77% of its territory. In consequence, Russia and the United Nations agreed that it would acquire the USSR's seat as a permanent member of the United Nations Security Council. All Soviet embassies became Russian embassies."

by contrast
"the Federal Republic of Yugoslavia... the UN refused to allow the new federation to sit in the General Assembly of the United Nations under the name of 'Yugoslavia'. This followed over a decade where the state was referred to uneasily as the Former Federal Republic of Yugoslavia."

My interpretation of this (willing to be proved wrong) is that "the rest of the UK" will be the successor state, be referred to as the UK, retain the UN veto and automatic membership of the EU. Scotland will be a new nation state, not have a UN veto and not automatic membership of the EU (though that may be waved through quickly). But yes, absolutely, you would not have to resign the Geneva convention etc etc etc.

[steer.livejournal.com]

See also
http://en.wikipedia.org/wiki/Vienna_Convention_on_Succession_of_States_in_respect_of_Treaties

[steer.livejournal.com]

I guess from the latter if Scotland claimed it was a freed former colony of the UK (heh, which would appeal to some Scots no doubt but seems hugely unlikely) it would get a "clean slate" with treaties but as a case of "separation of parts of a state" would remain bound by previous treaty obligations. However taking the second route (which seems the only likely one) "all other new states may only join multilateral treaties to which their predecessor states were a part with the consent of the other parties".

The treaty seems designed basically to ensure that former colonies get a nice time (all of the perks none of the obligations).

[andrewducker]

You'll also see that almost no European states have signed that convention.

[steer.livejournal.com]

I think that's because you only normally sign it when you break up (undergo revolution or otherwise change status). [If you look at the notes, Germany has also signed it].

Look at the signatories (and especially the dates where they sign) here:

http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXIII-2&chapter=23&lang=en

I may be wrong -- but it seems like you sign (and add caveats) once you actually break up/become independent or some time afterwards (in the case of St Vincent 20 years after).

That page has its UN status as "entered into force". So my guess is that remainder of UK and Scotland will sign this (or would normally be expected to sign this) if Scotland becomes independent.

[andrewducker]

It depends on who you ask :-> (nwhyte _is_ an international expert, by the way, so his response is worth reading).

Various people have noted that the chances of the EU kicking several million people out is pretty slim - the ECJ would have words to say under human rights legislation.

[steer.livejournal.com]

Yes, I phrased it as "not automatic but may be waved through".

[khbrown.livejournal.com]

Which treaties? Those in the early 1600s and 1700s? They had a very restricted franchise that hardly counts as democratic by today's standards. As I understand it the act of union in 170X was basically signed by that segment of the Scottish elite which had lost money with the Darien colonies, or a minority of a minority.

[lpetrazickis.livejournal.com]

If Quebec were to secede from Canada, I would expect it to have to renegotiate things like the North American Free Trade Agreement while Rest of Canada would stick with the status quo for the treaties.

Of course, I can't imagine Quebec not wanting to renegotiate, the primary motive for secession being the perception that Anglos in government are too incompetent and misguided to negotiate a favourable treaty.

[charleysjob.livejournal.com]

The best parallel is probably the break-up of the USSR or, on a smaller scale, Kosovo and/or Montenegro declaring their independence from Serbia. In both cases, there was a widely-recognized successor (Russia and Serbia respectively) who retained the position of the predecessor. In Russia's case, the name changed as it was no longer a Union of Soviet republics, but that didn't actually matter.

I don't think that realistically anyone would deny that London and Her Majesty Betty are the successors to London and Glasgow and Her Majesty Betty, if you see what I mean. Doesn't matter what the place calls itself. Here we are dealing much more with the odd and inconsistent politics of international recognition than any actual written law that anyone could actually be held to.

The fact that some of the people who voted for the parliament of the ex-UK are no longer there is, unfortunately, entirely moot. Neither Democracy nor a democratic consideration of the validity of laws mean anything from an international perspective. (See: China vs. Taiwan, "Which one is the real China?" debate)

[luckylove.livejournal.com]

More importantly, what would our internet suffix/domain/thingy be?

[andrewducker]

http://www.bbc.co.uk/news/uk-scotland-highlands-islands-15046986