Legal Issues Surrounding the Referendum on Independence for Scotland
European Constitutional Law Review 2013, Issue 3, Forthcoming
31 Pages Posted: 25 Sep 2013 Last revised: 9 Oct 2013
Date Written: September 11, 2013
On 18 September 2014 a referendum will be held in Scotland. It will pose the following question to the people: "Should Scotland be an independent country?". If a majority of voters say "Yes" to this proposition, Scotland will withdraw from the United Kingdom (UK), ending a union formed in 1707 and offering an unclear future for one of Europe’s oldest nation states. The significance of this process for other European States and for the European Union (EU) project itself is also considerable. Never before has part of an EU Member State broken away while simultaneously seeking to remain a member of the EU as a new State. Important questions arise. The UK is an important member; would its influence within the EU diminish with the loss of an important part of its territory and territorial waters? Will Scottish independence offer encouragement to other highly mobilized sub-state nationalist movements in Belgium and Spain for example, while providing a precedent for access to international and European institutions for secessionist territories? These questions are political in nature and rather than attempt to answer them directly, this paper will address the legal context which must condition how such questions are addressed. We will look first at the domestic constitutional situation in the United Kingdom. It is notable that an intergovernmental agreement has been reached by the UK and Scottish Governments setting out a framework for the process rules which will govern the referendum. This is itself remarkable. The UK Government has entered consensually, if somewhat reluctantly, into a process which could lead to the break-up of the State, a level of acquiescence which is itself unprecedented in the EU context. We will consider the key elements of the referendum process which are being set out in detailed legislation by the Scottish Parliament, assessing the prospects for a fair constitutional referendum. Secondly, we will turn to the possible implications of a majority Yes vote for Scotland and the United Kingdom under international law. Would Scottish independence be characterized by the international community as a case of secession or as bringing about the dissolution of the UK? What challenges would Scotland face in seeking recognition as a new State and in succeeding to the UK’s international obligations? And, most crucially, how would an independent Scotland come to take up membership of international institutions, in particular the United Nations and the EU?
Keywords: Scotland, Scottish, Independence, Referendum, Direct Democracy, UK constitution, Scotland and the European Union, Scotland and membership of the European Union, Scotland and international law, Scotland and the United Nations, statehood, secession, recognition, continuing state, successor state
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