Legal opinion - an 'own goal' for UK government

The independent expert commissioned by the UK Government to determine Scotland’s legal position following independence has accepted that the 18-month period set out by the Scottish Government for the negotiation of Scotland’s independence in the wake of a “Yes” vote is realistic.

The independent expert commissioned by the UK Government to determine Scotland’s legal position following independence has accepted that the 18-month period set out by the Scottish Government for the negotiation of Scotland’s independence in the wake of a “Yes” vote is realistic. Professor James Crawford of Cambridge University also said the negotiations for Scotland to continue its membership of the European Union, which would take place during that 18 month period were not “necessarily going to be difficult” as he indicated that Scotland’s admittance to the United Nations in the wake of independence would be “straightforward”. Speaking during media interviews, Prof Crawford also said the renegotiation of international treaties was “not going to be a major issue” as he accepted that the EU negotiations would take place from within the European Union. Asked by BBC Scotland: “So that negotiation would be going on from within the European Union?”, Prof Crawford replied “Yes, that is certainly true”, before indicating that there were issues that would need to be negotiated. The comments came after the publication of a legal opinion by the UK Government that confirmed the legal status of Scotland and rest of the UK would: “depend on what arrangements the two governments made between themselves before and after the referendum”. The opinion, by Prof Crawford and Professor Alan Boyle of Edinburgh University, also conceded that there was “no precedent for what happens when a metropolitan part of a current member state becomes independent”. The publication and comments were described as an “an own goal” for the UK Government by Deputy First Minister Nicola Sturgeon, who welcomed Prof Crawford’s comments. Ms Sturgeon said: “The fact that the UK Government’s own legal experts have backed the Scottish Government’s negotiation timetable and accepted that EU negotiations need not be difficult is a huge own goal and betrays the entirely ‘can't do’ attitude of the No campaign. “We are clear that talks will be required to negotiate Scotland’s continuing membership of the European Union and that these will be carried out in the period following a ‘yes’ vote while Scotland remains part of the EU. “Today’s publication and comments from these experts in international law back up this view, indicating that the 18-month negotiation timetable we have put forward is realistic and that the terms of this negotiation will be dependent on the outcome of post-referendum talks provided for by the Edinburgh Agreement. “Professor Crawford has suggested that these negotiations can be straightforward and that the renegotiation of the international treaties the UK Government has identified as a stumbling block, would not be ‘a major issue’. ”This opinion clearly goes against the grain of pronouncements from the UK Government. In their political interpretation of this paper, the UK Government also seem to be arrogantly claiming that the rest of the UK would inherit all of the benefits and rights of the UK’s current position in the world, with nothing left for Scotland. “If this is the position of the No campaign, do they also agree that this principle applies to the liabilities of the UK – the national debt, for example, so that the rest of the UK would inherit all of that debt?” ENDS Background Transcript of Good Morning Scotland interview, 11 February, 2013 Gary Robertson: But have you extrapolated too far here? Because obviously, you know, in some of those cases you’re talking about the UN or predecessor bodies, but in other cases some of the bodies you’re talking about now – the World Trade Organisation, the International Monetary Fund, the EU – were not in existence at some of these points. James Crawford: Well, the International Monetary Fund was certainly in existence. The WTO is a more recent entity, but the – the cases of separation since 1994 have followed the same pattern. South Sudan and Sudan, to take one example; Eritrea and Ethiopia, to take another. So the dominant pattern is that the breakaway state has to begin by applying for admission to the United Nations and, in the case of the EU, it will be the EU as well. Now, I don’t – I don’t suggest that that will be difficult in most cases. EU membership will come as a matter of negotiation. UN membership will be straightforward, but in the case of the EU, there are things to negotiate such as the British opt-outs and so on, the financial contributions, and they’re not automatic. Gary Robertson: Well indeed, but that does not put you at odds with the Scottish Government’s position, because they themselves have said that they would be negotiating with the EU on these issues, but they make the point that they believe it would be from a point of already being inside the EU because firstly, they are already there and also, the date of independence would be two years beyond the referendum. So that negotiation would be going on from within the European Union. James Crawford: Yes, that’s certainly true. Scotland, as part of the United Kingdom, continues within the EU but Scotland as a new state will have to become a member of the EU by a treaty of accession, and therefore there are things to negotiate. As I say, it’s not to suggest that this process is going to be – necessarily going to be very difficult, because Scotland complies with the Acquis now, as part of the UK, but still that process has to be gone through. Transcript of Today Programme interview, 11 February 2013 John Humphreys: And how long would all that take – because there must be thousands of treaties. James Crawford: Well, the thousands of treaties are not going to be a major issue, but the membership of international organisations is, and it’s something that will have to be done on a case by case basis. John Humphreys: And will take how long? James Crawford: Well, the Scottish estimate is about 18 months, and that seems realistic. Extracts from “Referendum on the Independence of Scotland – International Law Aspects” by James Crawford and Alan Boyle 1. If Scotland were to become independent after the referendum planned for late 2014, it would be with the UK’s agreement rather than by unilateral secession. In practice, its status in international law and that of the remainder of the UK (rUK) would depend on what arrangements the two governments made between themselves before and after the referendum, and on whether other states accepted their positions on such matters as continuity and succession. But there are a number of legal considerations. 6. Within the EU, there is no precedent for what happens when a metropolitan part of a current Member State becomes independent, so it is necessary to speculate.