Scotland’s Constitutional Future 2 [published by the Law Society of Scotland] is an excellent and thought-provoking model of impartiality. The following reflection arises out of chapter 5, “... closing the circle”, and is a footnote to my article “'The Union and the Law' revisited".
In the introduction to Scotland’s Constitutional Future 2 (p 4), under the subheading "About the referendum on Scottish independence", the proposition (hereinafter proposition A) is set out that: "The Treaty of Union (1707), which brought together Scotland and England in the United Kingdom of Great Britain, contains provisions which have been key in maintaining, amongst other things, a distinctive legal system in Scotland. This is undoubtedly a factor in the continued sense of national identity in Scotland even though the Treaty is 307 years old."
In chapter 5 (p 50) it is noted that the leading experts on international law, Professors Crawford and Boyle conclude that: "in the event of a vote in favour of leaving the UK, in the eyes of the world and in law, Scotland would become an entirely new state". There follows a summary of what may be referred to as the "rUK continuator" theory, which includes those rules of public international law relevant to the situation where for example part of the territory of a state breaks away or secedes from the remainder (hereinafter proposition B).
Here we encounter a problem which raises precisely one of the questions which the Law Society of Scotland through its latest paper is astutely seeking answers to.
Proposition B can only apply to Scotland, and those rules of public international law could only be relevant to Scotland’s future, if a further proposition of Professors Crawford and Boyle, prerequisite to the applicability of proposition B – hereinafter proposition C – is correct.
Proposition C is discussed in “'The union and the law' revisited", and is there respectfully treated as unsound in history and law. Proposition C maintains that the 1707 Union was not a union as understood in proposition A, but involved in effect the absorption of Scotland by England so that Scotland ceased to exist whilst England continued – albeit in future known as Great Britain or the United Kingdom.
The conclusion from the above must in my submission be that if the Law Society of Scotland’s proposition A is right, Professors Crawford and Boyle have interestingly and correctly set out principles of public international law which are however irrelevant to Scotland’s position. They would no doubt provide a perfect legal tool for analysing the situation were, for example, the county of Cornwall to be seeking independence from the present United Kingdom.
Again if the Law Society of Scotland’s proposition A is right, a better starting point in my submission for seeking the relevant rules of public international law, in the event of the 1707 Union of Parliaments of England and Scotland being dissolved, would be the 9th edition of Oppenheim’s International Law (1992), Vol 1, Part 1, where states in personal union are considered at pp 245-246. Analogies are there drawn to links between the UK and independent Commonwealth countries, and other examples are given. (Footnote 2 at p 246 also considers the relationship between Denmark and Iceland 1918-1944.)
Would Scotland cease to be a member of the European Union upon independence if proposition A is correct? It should not be forgotten that it was in the name of Her Majesty the Queen as Head of State of the United Kingdom of Great Britain & Northern Ireland that the United Kingdom acceded to the Lisbon Treaty. Should the Union of Parliaments of England and Scotland be brought to an end, and England and Scotland become in consequence independent each from the other, the Kingdom of Scotland, and what would presumably become the United Kingdom of England & Northern Ireland, would in my submission be placed (for better or worse) in precisely the same legal position as the other vis-a-vis continuing membership of the European Union – or vis-a-vis having to apply/re-apply for admission.Ian Campbell