The International Case

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have anyone else to fall back on if their oil were not sold; they would not have the solid base of the UK backing them.

4.1.4 The International Case

The international case arguments expounded by the SNP mostly concerns the international institutions of which the UK are currently a part of, such as the North Atlantic Treaty Organization (NATO, United Nations (UN), and the European Union (EU). Public concerns center around whether if Scotland did become independent, would their membership with these international institutions still be continued? It is in the SNP’s interests to affirm this statement and this is exactly what the SNP propose in their White Paper. The SNP states in its White Paper, “We will continue to be a member of the EU and will have a seat at the top table to represent Scotland’s interests more effectively; we will not be at risk of leaving the EU against the wishes of the Scottish people. Scotland’s security will be guaranteed as a non-nuclear member of NATO, with Scotland contributing excellent conventional capabilities to the alliance.”²⁶⁴

SNP base their argument on the Scottish situation being sui generis, which is in the sense that there is presently no specific legislation or provision in the EU treaties which prevent a territory which is a part of an existing member state being unable to join the EU if it became an independent country. The legal basis behind SNP’s argument is taken from the Articles within the Consolidated Version of the Treaty on European Union, which in other words is the EU rulebook.²⁶⁵ The main Article in which SNP argues from is Article 48 of the Treaty of the European Union²⁶⁶ which provides that a Treaty amendment can be amended by existing members of the EU, the European Parliament or the European Commission providing that there is a majority vote of the member states. The member who wants to make amendments will

264 White Paper, Scotland’s Future: Your Guide to an Independent Scotland, p. 206

265 Consolidated Version of the Treaty on European Union, 2010 O.J. C83/01

266 Consolidated Version of the Treaty on European Union, Articles 48, 2010 O.J. C83/01

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submit a proposal to the European Council and if it – after consulting with the parliament and the commission – decides to analyse the recommended amendments then it will be passed into a convention. In a convention, they examine the proposed amendments, and if there is a consensus, they adopt the proposal and it is submitted forward to a conference of member state representatives for approval.²⁶⁷ This method will allow a speedier process for Scottish membership; and within eighteen months, negotiations will be concluded for a fully integrated Scottish member state of the EU in time for the target date of independence set by Scotland of 23 March 2016, thus, meaning that there would not be a disruption to Scottish membership of the EU.²⁶⁸ The SNP contends that Article 48 would allow for a suitable legal route to facilitate the transition process and to ensure that Scotland will become a member state when it becomes independent.²⁶⁹

It is argued by the SNP that Article 49 of the Treaty of the European Union²⁷⁰ does not apply for the case of Scotland. Before delving into Article 49, the 1993 Copenhagen criteria must be understood as it was the precedent for Article 49. The eligibility criteria adopted by the EU for membership, under Article 2 of the Treaty of the Union and the 1993 Copenhagen criteria, are as follows:

1. “Stable Democracy;

2. Commitment to Human Rights and Rule of Law;

3. Open Markets

4. Sound Fiscal Position; and

5. Commitment to Adopt Existing EU Policies”²⁷¹

Article 49 further states that:

267 “Scottish Independence: Academic says EU entry ‘would be smooth,’” BBC News, July 7^th 2014, http://www.bbc.com/news/uk-scotland-scotland-politics-28197298, [Last Accessed: January 14^th 2015]

268 “Scottish Independence: Academic says EU entry ‘would be smooth,’” BBC News, July 7^th 2014, http://www.bbc.com/news/uk-scotland-scotland-politics-28197298, [Last Accessed: January 14^th 2015]

269 White Paper, Scotland’s Future: Your Guide to an Independent Scotland, p. 221

270 Consolidated Version of the Treaty on European Union, Articles 49, 2010 O.J. C83/01

271 Article 2 of the Treaty of the Union and the 1993 Copenhagen criteria

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• “The candidate state needs to be a European state that respects and promotes the values of democracy, human rights and the rule of law.

• It should have stable institutions and a functioning market economy, which can cope with the market forces within the Union.

• It should be able to take on the obligations of membership and implement the EU acquis (all the EU laws, treaties, declarations and resolutions, international agreements and the decisions of the European Court of Justice, i.e. Europe as it is).”²⁷²

Unionists believe that Article 49 is the one that should rightly be applied to the case of Scotland and if Scotland does have to re-apply for membership then it would deter Scottish independence by a few years compared to the promise made by the SNP of it being in the year following the referendum. Despite the statement made by the European Commission President Juncker of him specifying that the referendum of Scotland was an internal matter to the UK and that he would respect the outcome of the decision, ²⁷³ pro-UK supporters still believe that this would be the case.²⁷⁴ It is stated in Article 49 that new conditions and subsequent adjustments to the Treaties need to be agreed between the member states and the applicant state. Once this has been made possible, it is only then that the agreement will be submitted for ratification by member states.²⁷⁵

However, the SNP argues that considering Article 49 details the legal procedures a new state will have to undergo when applying for membership and since Scotland is not exactly a new member to the EU, the SNP disputes that they should not have to undergo the same process as a new member applying for the EU. The SNP contends that even if they have to go through Article 49, Scotland would still fulfill all the requirements set out through the 1993 Copenhagen

272 Scotland’s Constitutional Future: Views, Opinions and Questions, The Law Society of Scotland’s Discussion Paper, August 2013,

https://www.lawscot.org.uk/media/647741/scotlands%20constitutional%20future%202013_main.pdf, [Last Accessed: January 15^th 2015]

273 “Scottish Independence: Jean-Claude Juncker ‘not referring to Scotland,’” BBC News, July 15^th 2014, http://www.bbc.com/news/uk-scotland-scotland-politics-28311938, [Last Accessed: January 14^th 2015]

274 “European Commission President ‘not referring to Scotland’ Membership,” STV, July 16^th 2014, http://news.stv.tv/scotland/282832-european-president-jean-claude-juncker-not-referring-to-scotland/, [Last Accessed: January 15^th 2015]

275 “Scottish Independence: Academic says EU entry ‘would be smooth,’” BBC News, July 7^th 2014, http://www.bbc.com/news/uk-scotland-scotland-politics-28197298, [Last Accessed: January 15^th 2015]

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criteria and Article 49 of TFEU. Scotland has fulfilled all these requirements being a developed country with an open democracy. Therefore, the SNP argues that there is no reason for them to be barred entrance into the EU and it should also be in the EU’s interests to retain Scotland as a member country considering Scotland is an important energy producer and contains substantial fishing resources and reserves available to the member states. The process through Article 49 would just be a lengthier process and would cost the SNP five years before becoming independent thus, the SNP argue Article 48 is the most suitable provision for the application for EU membership.

Furthermore, the SNP will negotiate for their EU membership under continuity of effect, which means that the current EU Treaty obligations and provisions will continue to apply to Scotland when it is transitioning to independent membership, or in other words, there will be no change to the behavior towards Scotland by the EU in terms of the legal, economic, institutional, political and social framework.²⁷⁶ The principle of continuity of effect will allow an independent Scotland to remain part of the Common Travel Area with the rest of the UK, Ireland, the Isle of Man and the Channel Islands.²⁷⁷

The only reason in which the membership into international institutions such as EU, NATO or UN would have been resisted, would be that it might encourage and promote internal independence movements. As discussed in Chapter 2 of this thesis, there are many separatist movements which have gained traction in Europe, ranging from Catalonia in Spain, Flanders in Belgium to Veneto in Italy. The other European countries spectating on the referendum in Scotland, decided to speed up the process for their own. With Catalonia, the media fervently covered the Scottish referendum and many parallels were drawn between the cases of Scotland and Catalonia. Though there are vast differences between the two situations however, the two secessionist movements both have the same goals of becoming autonomous regions. Catalonia wishes to use the case of Scotland to achieve a legitimate referendum of its own that is

276 White Paper, Scotland’s Future: Your Guide to an Independent Scotland, p. 221-222

277 Scottish Independence Executive Summary, p. 26-27

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recognised by the Spanish government.²⁷⁸ Conversely, Manuel Garcia-Margallo, the Spanish Minister for Foreign Affairs and Cooperation, stated that even if Scotland were to become independent, “Spain would have nothing to say. We would simply maintain that it does not affect us.”²⁷⁹ Nevertheless, the idea of Catalonia being able to hold a referendum raised the hopes of the Basque county as well, with 59 per cent of Basques wishing for a referendum on independence.²⁸⁰

The regions of South Tyrol and Veneto are hot on the trails of the separatist movements from Spain as exemplified by South Tyrol that has been holding unofficial online referendums for independence and there it has produced a majority vote for independence. Veneto held their own poll too, however, due to the lack of a professional organization holding it and allowing various ineligible voters to participate, the poll by Veneto was argued to be inadmissible.

Gianluca Busato, the leader of the Veneto separatists contends, “The right of self-determination that is triumphing in Venice is the only way to free ourselves from the worst bureaucratic monster of the western world – the bloodthirsty beast of the Italian state.”²⁸¹ Nonetheless, viewing the results and actions of these separatist movements, persistency towards independence are palpable and their displeasure with the Italian state is difficult to dismiss.²⁸²

The very fact of Scotland holding a referendum has resulted in many European separatist movements following suit, therefore, it is not an unfounded worry of international institutions that by allowing Scotland to re-join international institutions easily, more separatist movements

278 “Scottish Independence Referendum: The Global View,” The Guardian, September 17^th 2014,

http://www.theguardian.com/politics/2014/sep/17/scottish-independence-referendum-global-spain-china [Last Accessed: November 30^th 2015]

279 Maddox, D., “Scottish Independence: Separate Scotland Must Apply to Join EU, Warns Brussels,” The Scotsman, December 6^th 2012, http://www.scotsman.com/news/scottish-independence-separate-scotland-must-apply-to-join-eu-warns-brussels-1-2677200 [Last Accessed: November 30th 2015]

280 Barber, T., “Scottish Separatism Fuels Movements in Spain and Italy,” Financial Times, September 14^th 2014, http://www.ft.com/intl/cms/s/0/ed60a76e-38e6-11e4-a53b-00144feabdc0.html [Last Accessed: November 30^th 2015]

281 Barber, T., “Scottish Separatism Fuels Movements in Spain and Italy,” Financial Times, September 14^th 2014, http://www.ft.com/intl/cms/s/0/ed60a76e-38e6-11e4-a53b-00144feabdc0.html [Last Accessed: November 30^th 2015]

282 Barber, T., “Scottish Separatism Fuels Movements in Spain and Italy,” Financial Times, September 14^th 2014, http://www.ft.com/intl/cms/s/0/ed60a76e-38e6-11e4-a53b-00144feabdc0.html [Last Accessed: November 30^th 2015]

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would not be far behind. Therefore, Scotland’s entry into the EU would still be met with obstacles and would not be as smooth an entry as the SNP argues.