Succession or Accession: Could Scotland Leave Britain but Stay in Europe?

[Please see these related articles from this blog: “Orkney—the Next Dubai? Further Reflections on Scottish Independence,” “The World’s 21 Sexiest Separatists” (featuring Sean Connery), and “What Is a Colony? The United Nations’ Definition Needs an Overhaul,” “Happy Dependence Day, Hong Kong! 400,000 Protest Chinese Rule—but Secession Is Not on the Table,” “Celts, Cypriots, Aborigines Raise Stink at Olympics: Ethnonationalist Protest Update.”]

The United Kingdom of Great Britain and Northern Ireland now faces the inevitability of a referendum on Scotland’s independence.  Alex Salmond, who became Scotland’s First Minister when the Scottish National Party (SNP) took charge of the 14-years-young devolved Scottish parliament last year, announced the referendum plans this month and thus embarked upon a war of words with anti-independence parties in the U.K. (that is, all the rest of them).  This scrapping over legal and political details may well drag on until the vote itself, which Scottish nationalists would like to hold in late 2014, on the 700th anniversary of the Scottish victory over the English at the Battle of Bannockburn in 1314.

What the Union Jack would look like

without the St. Andrew’s Cross that represents Scotland

And speaking of battles, just this week, Philip Hammond, the Defense Secretary in David Cameron’s U.K. government, responded to Salmond’s assumption that an independent Scotland could be defended by the U.K.’s current Scottish regiments by saying that “The idea that you can sort of break off a little bit [of the British Army], like a square on a chocolate bar and that would be the bit that went north of the Border, is frankly laughable.”  And he warned that the U.K. might not want to foot the bill for the expulsion of nuclear submarines from its waters that an independent Scotland would demand—since Scotland would probably stay out of the North Atlantic Treaty Organization (NATO).  Clearly, defense is one of many areas where innumerable details would still need to be worked out if Scotland seceded.  The SNP is being reminded that their parent country will have a say in what the new state would end up with.

Anti-nuclear protesters at a NATO base in Scotland

And now the question of whether Scotland could stay in the European Union after independence has been called into question from an unexpected quarter: Spain.  The Spanish government has said this week that if Scotland applies for membership in the E.U., it will veto the move.  Under E.U. rules, any new members must be approved unanimously by all existing member states.  Spain has separatist movements of its own—in Catalonia, the Basque Country, and Galicia, specifically—that it would not like to encourage.  So the government in Madrid was alarmed to hear Artur Mas, Catalonia’s premier, point to Scotland’s referendum as a positive example of peaceful secession.  Madrid fears that a successful Scottish referendum would encourage Catalans and other nationalists to break up Spain.  Thus their threat to block Scotland’s E.U. status.

In fact, continuing E.U. membership is a crucial talking point when separatists in western Europe make their case, reassuring the public that secession would not be politically or economically disruptive, and may in fact change little.  I made such an argument in this blog discussing the prospects of a Belgian partition, and it was implicit in my more recent discussion of the movement for northern Italy secede as “Padania.”

The SNP responded to the Spanish announcement by calling Madrid’s interpretation of E.U. rules “preposterous,” adding, “Scotland has been an integral part of the E.U. for almost forty years.  An independent Scotland would be a succession state, not an accession state, and there is no provision for citizens of the E.U. to be expelled.”

Scotland’s First Minister, Alex Salmond

The SNP is probably right on the last point, but that doesn’t mean a mechanism couldn’t be found.  More important, from a legal perspective, is his point about succession and accession.

The European Common Market (later renamed the European Economic Community, the European Community, then the European Union) was founded in 1957 by six states: Belgium, France, the Federal Republic of Germany (west), Italy, Luxembourg, and the Netherlands.  The twenty-one subsequent member-states—including the U.K. and Ireland, which both joined in 1973—became members through accession—a fancy word for “joining.”  No member-state has yet joined by the mechanism of succession, which would mean, for example, that a member-state dissolved and was automatically replaced by two or more newly formed states.

So where should we look for possible precedents to the situation the E.U. would face if Scotland seceded?  Let’s look at three examples with respect to United Nations membership: the Union of Soviet Socialist Republics (U.S.S.R.), the United Arab Republic, Czechoslovakia, and Yugoslavia.

U.S.S.R.  When the U.N. was founded in 1945, the U.S.S.R. was a founding member.  Plus, Josef Stalin succeeded in getting two more member-state votes for himself by rather disingenuously sliding in the Ukrainian Soviet Socialist Republic and the Byelorussian Soviet Socialist Republic as members alongside the U.S.S.R., though they were clearly governed by the party dictatorship in Moscow.  As for other S.S.R.s, the U.N. never recognized the Soviet annexation of the Baltic states of Estonia, Latvia, and Lithuania at the close of the Second World War but did not want to antagonize Stalin by seating delegations from Baltic governments-in-exile in the General Assembly, so those three states were in actuality treated by the U.N. as part of the U.S.S.R.  In late 1991, after the collapse of Soviet Communism, Russia’s president, Boris Yeltsin, requested and got recognition of the Russian Federation as successor to the U.S.S.R.’s seat both in the General Assembly and on the Security Council.  The Ukrainian and Byelorussian S.S.R.s kept their seats as the renamed Ukraine and Belarus, respectively, but for the first time their legal status as sovereign states was not fictional.  Nevertheless, the other nine members of the so-called Commonwealth of Independent States—Moldova, the southern Caucasus republics, and the Central Asian “-stans,” as well as the Baltic States, who refused membership in the Commonwealth—had to apply separately to the U.N. as new members.  So, although all these are now considered “Soviet Successor States,” only Russia, Ukraine, and Belarus were members by succession; the rest acceded to the U.N.

Some Soviet successor states had to reapply for U.N. membership, but some didn’t

The United Arab Republic (U.A.R.) was a short-lived merger between Egypt and Syria in the early Cold War period.  Both were founding U.N. members, and they merged their seat in 1957 as the U.A.R.  When the union dissolved in 1961, Syria resumed its former membership seamlessly, and Egypt, which retained the name United Arab Republic itself for a few more years, was the successor state to the formerly unified U.A.R.

Czechoslovakia was a founding U.N. member-state but with the fall of Communism changed its name in 1990 to the Czech and Slovak Federative Republic, to reflect the loosening of central government control over its two constituent countries.  In late 1992, it dissolved in the so-called Velvet Divorce and was succeeded by the Czech Republic and the Slovak Republic.  Both were recognized by the U.N. as successor states, and neither had to apply for admission.

Neither the Czechs nor the Slovaks had to reapply to the U.N. when Czechoslovakia dissolved

The Socialist Federal Republic of Yugoslavia had also been a founding U.N. member-state, but after the fall of Communism its constituent republics began declaring independence one by one, beginning in the north.  The northern republics of Slovenia, Croatia, and Bosnia and Herzegovina applied for admission to the U.N. and were admitted together in May 1992 as three new states, although in the case of Croatia and especially Bosnia, their wars of secession were ongoing, with Serbian regions of those two states fighting vainly to be recognized by anyone other than the Yugoslavian central government and each other as independent states themselves.  Later, in 1993, Macedonia applied for admission and was admitted.  The two remaining republics, Serbia and Montenegro, calling themselves the Federal Republic of Yugoslavia, petitioned to be recognized as a successor state to the old Socialist Federal Republic of Yugoslavia, but the U.N. General Assembly erased Yugoslavia’s membership and told the government in Belgrade that it had to reapply.  They did, and the U.N. promptly refused, citing the barbaric behavior of Serbian forces in still-ongoing Yugoslav Wars of Succession.  Yugoslavia was not admitted until 2000, after Slobodan Milošević was removed from power.  In 2003, the state changed its name to the State Union of Serbia and Montenegro.  In 2006, Montenegro seceded peacefully and quickly was admitted as a new U.N. member-state, while Serbia succeeded the former State Union as the Republic of Serbia.  So here was an odd situation where Serbia, the core republic (analogous to Russia in the U.S.S.R.), seen by the other republics as a kind of colonizer, not only was denied the right of automatic succession but was nearly the last to join the U.N. again by accession.

Serbia, the country the others seceded from, ironically had

the least luck in getting treated as a Yugoslav successor state

(The Organization for Security and Cooperation in Europe and other similar organizations for the most part followed the U.N.’s lead in the sequence and mechanisms for seating these new delegations.)

So, back to Scotland: is the U.K. more like the U.S.S.R. and Yugoslavia or more like Czechoslovakia and the U.A.R.?  The pivotal questions seem to be whether Scotland is a dependent territory of the central government in London, in a way that England perhaps is not, or whether it is a co-partner with England (and perhaps with Wales and Northern Ireland) in a union, like Czechoslovakia.  (Serbia-and-Montenegro, if the wars had gone differently, would probably have been allowed to join through succession rather than accession.)  Surely, other constituent parts of the U.K. that were unambiguously dependent territories—such as the former colonies in Africa, Asia, and elsewhere—joined the U.N. by accession, not succession, but Scotland hardly has the dependent legal status of Zambia, despite what some Scottish nationalists would have us think.

Scotland’s former royal coat-of-arms

For one thing, one might argue, unlike the two constituent countries of Czechoslovakia, it would be possible for England, Wales, and Northern Ireland to retain their designation as the United Kingdom (though they probably would have to change something about its full name, the United Kingdom of Great Britain and Northern Ireland, since Scotland is a major chunk of the geographic island of Great Britain).  Or could it even do that?

The Kingdom of England and the Kingdom of Scotland were separate, sovereign states until 1706 and 1707 when the English and Scottish parliaments, respectively, passed the Acts of Union, dissolving the Scottish crown and creating the Kingdom of Great Britain, also called the United Kingdom of Great Britain.  Similar Acts of Union in 1800 incorporated the Kingdom of Ireland into what then became the United Kingdom of Great Britain and Ireland—which later, when most of the island of Ireland gained independence in 1922, inserted the word Northern before the word Ireland.  The whole idea, then, of a United Kingdom is predicated on the idea that England, Scotland, and (now just a bit of) Ireland were equal constituent parts of a kingdom.  (Wales today also has equal status with Scotland, England, and Northern Ireland, but historically it had been ruled directly from London for centuries by the time of English–Scottish union.)  A Scottish secession would mean legally undoing the Acts of Union of 1706 and 1707.  Whether this would automatically restore the House of Stuart to the throne is something legal scholars will need to tackle.  Likewise for the question of whether the incorporation of Ireland, and now Northern Ireland, in the Union would hold after Scotland’s departure—since Scotland, at least on paper, was an equal partner on the Great Britain side of the Acts of Union of 1801.

The Parliamentary Union of England and Scotland, 1707,

as painted by Walter Thomas Monnington

All of these are questions for jurists, legislators, and diplomats not just in London and Edinburgh but in Brussels and Strasbourg as well.  To claim that an independent Scotland has left the E.U. but that England has not might not withstand the legal conceit that the Crown which ceded some powers to Brussels in 1973 implicitly included the sovereignty of Scotland as well.  After all, Jersey, Guernsey, and the Isle of Man chose to stay out of the E.U. in 1973 and are still out of it, pursuing a special legal status which Scotland never insisted on and would have rejected if there had been an attempt to impose it.

How legal scholars and politicians end up defining the matter may well decide whether Salmond can galvanize enough of the two-thirds of Scots who oppose secession today to change their minds between now and 2014.  Independence will look a lot less attractive if it means that Scotland would no longer be in the E.U.

Or will it?  Despite the fact that Croatia has just voted to join, the E.U., with its currency and debt crisis, is increasingly looking like more trouble than it’s worth.  And, after all, Scotland’s neighbors across the water, Norway and Iceland, are, along with Switzerland, major western European states that never joined the E.U., though they enjoy many of its free-trade benefits under separate arrangements.  (The Swiss are not really joiners.  Not only is Switzerland, unlike Norway and Iceland, outside NATO, but it didn’t even join the U.N. until 2002.)  Switzerland’s mammoth financial sector has always made it feel as though it needed no help from a customs union.  The same goes for Iceland, in its case because of vast fishing territories that it is permitted in a singular exception to ordinary law on marine boundaries.  And Norway, of course, has all that North Sea oil.  But, wait, isn’t the U.K., when you look at a map, just as well positioned as Norway to enjoy the largesse of all that oil? ...

Oh, no, wait, I guess that’s mostly just Scotland.  You know, maybe they won’t need the European Union after all.


[For those who are wondering, yes, this blog is tied in with my new book, a sort of encyclopedic atlas just published by Litwin Books under the title Let’s Split! A Complete Guide to Separatist Movements and Aspirant Nations, from Abkhazia to Zanzibar.  The book, which contains 46 maps and 554 flags (or, more accurately, 554 flag images), is available for order now on Amazon.  Meanwhile, please “like” the book (even if you haven’t read it yet) on Facebook.]