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

[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.