Scotland referendum 2014: the impact of independence on international organisations

Succession

The whole question of the succession of states – what happens to their treaty obligations, membership of international organisations, property, archives and debts – is a complex and disputed legal area.

The German Federal Supreme Court noted in the Espionage Protection case that “the problem of state succession is one of the most disputed areas of international law”.  Case No. 2 BGz 38/91, 94 ILR, pp68, 77-8

Under the international law of state succession there are at least three different possibilities:

1. continuation and secession - the UK would retain its treaty obligations and membership of international organisations, but Scotland would lose most of them
2. separation - both states would retain treaty obligations and memberships
3. dissolution - both states would lose treaty obligations and memberships

Within these possibilities are different variants. For example, some authors have identified a rule of customary international law that a new state does not succeed automatically to treaties of alliance or defence.

The international law in this area is not prescriptive: negotiated agreements between the new states may prove politically acceptable to the international community.

Constitution Committee's opinion

The House of Lords Constitution Committee report Scottish independence: constitutional implications of the referendum supported the idea that the UK would continue and Scotland would be a new state, arguing that “no realistic alternative case has been made”.

Retention of membership of international organisations seems the most likely outcome for the UK in the event of Scottish independence.

Foreign Affairs Committee and Government opinions

As illustrated by this extract from the Government's response to a report by the Commons Foreign Affairs Select Committee (PDF) on the foreign policy implications of Scottish independence, both are extremely confident that retention of membership by the UK would happen:

“The Committee recognises that the overwhelming body of evidence endorses the UK Government's view, that in the event of Scotland becoming an independent country the rest of the UK (RUK) would be considered by the international community to be the continuing state and, as such, continue in its membership of international organisations such as the EU, NATO and the UN.

Although it would depend on the relevant organisation's rules, prima facie Scotland, as a new state, would have to apply to join the international organisations and bodies it wished to become a member of.

This was also the conclusion of the independent legal advice from leading experts published by the UK Government in February 2013”.

The independent legal advice cited here is Scotland analysis: Devolution and the implications of independence by James Crawford SC, Whewell Professor of International Law, University of Cambridge, and Alan Boyle, Professor of Public International Law, University of Edinburgh.

UK memberships

On the basis of this legal opinion, the UK would probably retain its membership of the following:

• United Nations (with permanent seat on the UN Security Council)
• North Atlantic Treaty Organization (NATO)
• Council of Europe (CoE)
• European Union (EU)
• Organisation for Security and Co-operation in Europe (OSCE)
• Organisation for Economic Co-operation and Development (OECD)
• International Monetary Fund (IMF)
• World Trade Organisation (WTO)
• Commonwealth
• Interpol

UK and European Union

EU legislation is usually adopted by the Council of the EU and the European Parliament (EP) in a process called the Ordinary Legislative Procedure (co-decision).

Scottish independence would affect the number of weighted votes in the Council of the EU and the number of MEPs for the rest of the UK.

This could reduce the UK's influence in the decision-making process.

UK and Council votes

The Council takes decisions either by a simple majority (15 Member States vote in favour), a qualified majority (260 votes out of 352 and at least 15 Member States are in favour), or a unanimous vote. A blocking minority may be formed by a coalition of 93 votes or 38% of the population of the Union.

Most EU decisions are now taken by a qualified majority voting (QMV). Weighted Council votes are currently based loosely on population, but the QMV system will change in stages from November 2014, when it will be replaced with a system based on a majority of Member States and Member State populations.

The new system will tend to increase the voting weight of the larger Member States, relative to the current position - which disproportionately favours smaller States - and diminish the voting weight of smaller Member States.

A smaller UK would stand to lose this advantage.

Votes relative to population

At present the UK has 29 votes in the Council and is one of the four largest States. This is based on the UK's population of 62.7 million in 2010.

The other large Member States, Germany, France and Italy, also have 29 votes.

The population of Scotland in 2010 was 5.3 million, roughly the same as Denmark (5.5 million), Slovakia (5.4 million) and Finland (5.3 million). They have 7 votes each in the Council, along with Ireland, Lithuania and Croatia.

Without Scotland, the UK would become the fourth largest EU Member State with a population of around 57.5 million, behind that of Italy (60.5 million). The next largest EU Member States are Spain (46 million), and Poland (38 million), with 27 Council votes each.

The UK would fit between these groups of States. It is quite possible that even without Scotland the UK might retain its 29 votes; or it might be suggested that its quota should be lowered to 28.

Foreign Affairs Committee opinion

The House of Commons Foreign Affairs Committee's report on Foreign policy considerations for the UK and Scotland in the event of Scotland becoming an independent country noted:

“On paper, because the RUK's population would not diminish significantly, it is likely that voting weights in the European Council would remain unchanged and there would be no formal decrease in the RUK's power or weight” (Q 11 – Dr Murkens).

European Parliament seats

The UK currently has 73 MEPs, six of whom are from Scotland.

The size of the EP is capped at 751, so if Scotland joined the EU, there would be a proportionate reduction in the number of MEPs from all Member States, but particularly from the UK, as it would have become a smaller State.

If Scotland is in the EU, the number of Scottish MEPs could double at the expense of UK MEPs. Denmark, for example, currently has 13 EP seats. This would be reduced if Scotland joined the EU, as the total is now capped and seats are redistributed after each enlargement.

It is unlikely that this would have a significant effect overall on the UK.

However, some have argued that the reduction in MEPs could have a profound effect in that some parties might not be represented in multi-member constituencies.

UK influence in the EU

Whether the UK would lose influence in the EU as a result of Scottish independence is debatable. It is perhaps more likely to lose influence as a result of uncertainty over its continued membership.

Europe Minister David Lidington was optimistic that the UK would maintain its position at the EU high table, stating at the House of Commons Foreign Affairs Committee evidence session, Q346, 28 January 2013 that:

“There would be technical changes consequent upon Scotland leaving. The population of the United Kingdom would fall and that would mean that there would need to be an adjustment to the number of MEPs, but we would still be there as one of the big six within the European Union.

We would still be in the position where English was de facto the lingua franca of a lot of European business. It is very striking actually the extent to which English is now used routinely at EU meetings, if only rarely by French representatives. Again, it would be a blow but I think a relatively minor blow”.

The 2013 House of Commons Foreign Affairs Committee report summarised the views of expert witnesses on the extent to which the UK's influence in the EU might be affected by Scottish independence.

The Committee concluded that although there was a risk that the UK's influence could decline without Scotland, “it is currently impossible to predict the extent of the damage that may arise, not least because this could also be affected by the consequences of the ongoing debate over the UK's future relationship with the EU”.