The EU must respect new countries

Arc of Prosperity’s third guest blogger is James Chalmers. He’s a Scot originally from West Fife who has spent the last 40 or so years trying (and occasionally succeeding) to find oil in various areas around the North Atlantic — North Sea, both Scottish and Norwegian, West of Shetland and Greenland. He has lived in Denmark since the late eighties, is now retired and happily living in Copenhagen with his Danish wife.

European Parliament Buildings
European Parliament Buildings, a photo by stevecadman on Flickr.
Jens-Peter Bonde (a Danish writer and former member of the European Parliament) has written an article on the rights and relationships of an independent Scotland and Catalonia in the EU. The article was published in the Danish newspaper Jyllands-Posten on March 5th (in Danish, registration required).

A number of Bonde’s points are very important in the context of the rumours emanating from the both the Spanish and British governments that both Catalonia and Scotland will be thrown out of the EU in the event of independence.

Bonde points out that the EU treaties contain no provisions whereby a people could be thrown out of the EU. That could happen legally only with a change in the treaties that requires unanimous agreement of all 28 member states. Nor are there any treaty terms about assigning rights to regions that become nations. That also requires unanimous changes in the treaties.

There are, however, very strong legal bases for solving new situations like these. The treaties say, after all, that every European country has the right to be a member of the EU, whether or not it is a member already, if it satisfies various criteria. Catalonia and Scotland naturally satisfy these criteria because EU law already applies to the two regions and that has priority over all regional and national law. All of this means that an acceptable solution will be found about how to deal with parts of member states becoming independent.

The most important question that will require negotiation will be the new nations’ representation in the EU’s agencies. Will they be treated as independent nations and have their own members in the Commission, Council of Ministers and the European Parliament? When Czechoslovakia divided into the Czech Republic and Slovakia in 1993, the two countries were treated as independent nations. They later got representation equivalent to that of other counties with the same population. They were not punished for having separated. Quite the opposite, the two countries got a combined representation greater than they would have had if they had applied for membership as Czechoslovakia.

If Catalonia and Scotland receive a less favourable treatment, they can appeal to the EU Court and plead that they are being discriminated against compared with other nations. It will not be easy to find legal grounds for rejecting such an appeal. National discrimination is specifically forbidden in the treaties. The right of self-determination is an international legal principle that is also recognised by the EU.

Bonde claims that Scotland and Catalonia will be forced to accept the euro as their currency. Great Britain and Denmark have exceptions; the new countries don’t. Catalonia already uses the euro and has no plans on a new independent currency. Scotland uses British pounds and, the current SG proposal is a currency union with Great Britain. In that case, Scotland would not comply with the precursor conditions for joining the euro; its own currency that is stable against the euro for two years. Even in the event of an independent Scottish currency, Scotland could take the Swedish route end simply let its currency float against the euro, again meaning that it would not satisfy the pre-joining criteria.

Scotland can become a nation like Denmark, take part in the Nordic cooperation and be represented in the EU in the same way as Denmark in the EU and UN. With a commissioner, and place in the Council of Ministers and 13 members in the European Parliament, compared 6 today as part of the UK. These changes will require changes to the treaties as with every new land, and the changes have to be agreed unanimously. But with this difference; these new lands are already in the EU.

There is no authority to exclude Catalonia and Scotland from the EU if they vote for independence from Spain and Great Britain. Their relationships to Spain and the rUK are a Spanish and British affair, where the EU has no competence. The Spanish and British competence does not stretch far enough to exclude the two countries from the EU because they have voted for independence from Spain and Britain.

The two motherlands will therefore also be forced to find a solution if Scotland and Catalonia vote for independence. If independence infects the Basques and other peoples there will be many small nations in the EU, which will probably lead to a general revision of how the countries are represented in the EU. There has already been opposition in the big nations for every member country having a commissioner.

There will probably be an EU conference in 2015 for other reasons. The European Parliament will again try to get the treaties changed to a constitution. Germany will continue their influence in the various countries’ finance laws as a condition of continuing German contributions to the Euro’s survival. If Scotland and Catalonia vote for independence, this can lead to a general discussion about the future arrangements of the Europe of the Nations and the Europe of the Regions.

A quickie divorce?

David Cameron and Alex Salmond
David Cameron and Alex Salmond, a photo by The Prime Minister’s Office on Flickr.
The Scottish Government suggested in the White Paper that a year and half would be sufficient to conclude the independence negotiations, leading to an independence date of 24 March 2016 (in other words, 554 days including the end points). This has always seemed to me like a very sensible suggestion.

However, many unionists have been complaining for a while that a year and a half is a ridiculously short time to unravel a 300-year partnership, and recently they even started threatening that they could stall the negotiations.

This threat was first made by one of David Cameron’s colleagues:

The planned Independence Day of March 24, 2016, will not happen, leaving the current set-up as the “default option”, unless negotiations between Edinburgh and London are completed satisfactorily, according to one of Prime Minister David Cameron’s most senior colleagues.


Dismissing the SNP Government’s 18-month timescale for completing negotiations as “totally unrealistic”, the source said: “A Yes vote in the referendum would be the start of a process, not the end of one; we would start negotiations. But if Alex Salmond made impossible demands, we would not just roll over and agree to everything he wanted. If we could not reach agreement, the status quo would be the default option.”

The senior Coalition figure said one such impossible demand would be the First Minister’s threat, repeated yesterday, that Scotland would not pay its share of UK debt if it were denied a currency union by Whitehall.

He was soon after backed up by a Labour peer:

Independence will “not automatically” follow a Yes vote in September’s referendum, according to a Labour peer and expert on the constitution.

Baroness Jay echoed claims of a senior Coalition source last week that the status quo could continue despite a vote to leave the UK.


Added Baroness Jay: “You can’t just start unpicking the constitutional arrangements. There would have to be paving legislation at Westminster first, then there’s the question of who would carry out the negotiations.

“These issues raise the idea that just because Scotland voted for independence in the referendum, it wouldn’t automatically happen.”

Finally, David Mundell has now also joined the bandwagon:

On what many see as a hostage to fortune – the First Minister’s declaration of March 24 2016 as Independence Day in the event of a Yes vote — the Scotland Office Minister appears clear that the timescale is wholly unrealistic, has “no legal status” and is just “an aspiration”.

“It’s only achievable if he was willing to make huge concessions on what his position is. Either he is immediately going to throw the towel in on a whole range of issues or it’s simply not achievable.”

He goes on: “It’s going to be more than 18 months if there is going to be meaningful negotiation on significant issues. I don’t suggest it’s a direct comparison but many people who have been through a divorce know that 18 months can be quite an optimistic timescale to get through that; that’s just two individuals trying to disentangle their lives. It can only be achieved from very significant concessions.”

However, if we look at other countries that have gained their independence, we find that most of them went through a much more rapid independence process.

For instance, when Czechoslovakia was dissolved, the amount of time from the Slovakian declaration of independence to independence day was 168 days (17 July to 31 December), although many details didn’t get sorted out till years later. However, after 31 December the negotiations took place between two independent countries.

Most other cases I’ve found were even faster — frequently practically instant.

It makes sense if you think about it. It will be almost impossible to concentrate on normal politics while independence negotiations are happening, and as the quotes above demonstrate clearly, there will be a huge incentive for Westminster to stall the negotiations until they get what they want. (“We won’t agree to independence unless you agree to a 100-year lease for Faslane, sign over 90% of the oil fields and take on half the UK’s debt.”)

If the independence negotiations get stuck, it might become necessary to declare UDI, telling the international community that Westminster has reneged on the Edinburgh Agreement which compelled them to negotiate in good faith: “The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.”

However, threats such as the ones mentioned above make me wonder whether there is any point in negotiating for 18 months if it’s likely we’ll be forced into declaring UDI anyway. Wouldn’t it be better simply to declare independence a few months after the referendum and then negotiate with Westminster as two independent countries?

The most likely reason why the White Paper is suggesting a long negotiation phase is to ensure that EU membership can be put in place before independence day. There’s no reason for the EU to act in a petty or vindictive manner, so it makes sense to negotiate the continued membership terms slowly and carefully.

I’d like to think that the Westminster politicians will become reasonable soon after a Yes vote. However, I fear it will become necessary to say in no uncertain terms that Scotland will declare independence on 24 March 2016 whether the negotiations have been completed or not in order to remove Westminster’s incentive to drag their feet.

We should also plan for the possibility that Westminster won’t negotiate for real at all, in which case we might as well declare independence in 2015. It might become a quickie divorce after all.

Why is devo-max so popular?

Paul Rogers -- Iraq's Pressure Point
Paul Rogers — Iraq’s Pressure Point, a photo by openDemocracy on Flickr.
According to the Scottish Social Attitudes Survey (PDF), 32% of Scots agree that “the UK government should make decisions about defence and foreign affairs; the Scottish Parliament should decide everything else”.

To a naïve observer, that sounds like many Scots aren’t too happy with Westminster’s social spending policies, but that they think their foreign-policy interests are handled well by the government in London.

However, very few Scots seem to love Trident (located very close to Glasgow), and most think the Iraq war was a disaster. Scots in general don’t seem to get excited by the thought of defending the Falklands, either. Furthermore, the instinctive hatred of the EU so common in England is quite unknown in Scotland.

In other words, it seems to me that Scots disagree more with the Westminster consensus with regard to defence and foreign affairs, not less. So why on Earth would a third of Scots want to retain these links?

Could it be that what they actually want is independence with a lifeline? Basically this group of Scots might desire full independence, but they don’t trust themselves and their compatriots not to make a mess of it, so they want the UK to stand ready to save them, in the same way a young adult can move back home with their parents if living alone doesn’t live up to expectations.

I guess that all these devo-max supporters really want is a guarantee by Westminster than the UK can always be recreated at Scotland’s behest. Of course London will never say this, because such a guarantee would be the surest way to ensure a Yes in September.

What we need to do instead is to reassure these voters that Scotland is in a better position than probably any other non-sovereign nation to be a successful independent country, and that an independent Scotland will thus never ever want to recreate the UK. We won’t need that lifeline.