Experts warn independent Scotland may have to apply to EU

If Scotland votes for independence it would have to renegotiate thousands of international treaties and agreements – a task that would take years, legal experts have told the British government.

The remaining parts of the UK – England, Wales and Northern Ireland – would be “the continuing state” that would remain in the EU and the United Nations, said international law experts Prof James Crawford and Prof Alan Boyle.

“On the face of it, Scotland would be required to accede to the EU as a new state, which would require negotiations on the terms of its membership, including on the subjects of the UK’s current opt-outs,” they warned.

EU membership

The issue of EU membership is significant, because the ruling Scottish National Party has argued for months that it would establish its membership from inside the club, not as an applicant state.

A number of EU states, notably Spain, have expressed doubts about Scotland’s automatic membership – fearful that a successful Scottish action would fuel secession demands in their own countries.

The example set by the creation of the Irish Free State in 1922 features heavily in the legal opinion offered – one of more than a dozen that will be published by the British government on the implications of Scottish independence over the next year.

Free State

“The separation of the 26 Irish counties in 1922 to form the Irish Free State . . . was treated just as a change in territory rather than a break in the UK’s continuity,” they said, adding that “neither side” questioned the UK’s continuity. “On the contrary, it appears to have been premised on the personality of the UK continuing uninterrupted.”

Scotland could not base its international legal status on the situation that had existed before the 1707 Act of Union with England “since Scotland certainly was extinguished as a matter of international law”.

They continued: “The pre-1707 Scottish state is comparable to the kingdom of Bohemia and Moravia in that a claim of continuity would have to overcome a gap of more than three centuries.”

Prof Crawford said: “In all but one or two cases, the remaining state has continued – the existence of the predecessor – the new state has broken away and has had to start with negotiations from scratch.”

Serbia and Montenegro; Pakistan and India; Bangladesh and Pakistan; and the Soviet Union were all examples of this, while the cases of separation since 1994 – Sudan and South Sudan, Eritrea and Ethiopia – all saw the seceding state applying for membership of international bodies.