With Scotland voting on independence on 18 September 2014, the UK coalition government sought advice on the relevant law from two leading international lawyers, James Crawford and Alan Boyle. Their subsequent report has a central argument. An independent Scotland would be separatist, breaking away from the remainder of the UK. Therefore, the latter (known as restUK or rUK) would be the continuator state – enjoying all the rights and duties of the existing UK, while Scotland would be new state having none of rUK’s rights and especially no membership of any international organizations it enjoys now as part of the UK. The bargaining power of rUK as to what it might concede of the UK’s rights would be complete, e.g. with respect to a common currency. This legal opinion has created a confrontational atmosphere around the referendum vote and caused anxiety among Scottish voters about to ‘jump into the unknown’.
It is essential to unpack the distracting complexity of the expert international law professionalism of this advice. Firstly, Crawford and Boyle gloss over the actual legal circumstances of the contract of union between Scotland and England, in particular that the Union was a bargain among powers equal in the eyes of international law at that time. More specifically, the England which, with Wales, concluded the Treaty of Union is exactly the same entity standing opposite to Scotland now as then (leaving aside the North of Ireland which has the option under the Belfast Agreement of leaving the UK by referendum).
There is no international standard, in the event of a dissolution of a union, which can provide any objective criterion to determine that Scotland is the breakaway entity. In international law, recognition of new states is largely a matter of the political discretion of existing states. It depends on an international consensus, or lack of it, where political preference may or may not trump any possibly objective standard of political legitimacy, e.g. self-determination by democratic consent. The vast amount of state practice which Crawford and Boyle’s legal opinion displays is misleading insofar as there is, in fact, no definitive legal marker of guidance. This is shown by the fact that England is the continuator state because it is larger than Scotland. Legally, there has to be a continuator state. But since this obviously cannot be Scotland, it must be England. Even Scotland assumes this to be the case.
It is necessary to focus upon an international legal history of the individual states, rather than the more general international law offered by Crawford and Boyle. The Anglo-Scottish Union displays a phenomenon that Linda Colley has referred to as the composite state. This is where two or more sovereign nations agree to merge their highest governmental level institution (parliament) into a single state made up of several nations – a state-nation – but other lesser local institutions might remain. In the Europe of the 15th to the 17th century this was a common phenomenon, the most celebrated being in Scandinavia, involving Sweden, Denmark and Norway in a variety of partnerships from the Kalmar Union (1397) onwards. The logic of these partnerships was that they were always open to renegotiation. Now, this is precisely what the English generously recognize in the Edinburgh Agreement. The logic of the composite state does not cover the many cases in which a core nation forms itself into a state and then jealously guards its territorial integrity against dissident minorities, which are then regarded as separatist and destructive of national unity. It is possible that an aura of this type of scenario runs through the legal opinion of Crawford and Boyle, although they have to accept the consensual context of the advice they are being asked to give.
The real issues facing Scotland have to be confronted on a basis of equality and mutual consent in accordance with the international law established as apposite for this case. These issues are a matter of history, not merely that of the 17th-18th century, but also the evolution of the 1707 Treaty of Union (implemented through separate Acts of Union passed in the Scottish and English Parliaments) to the very recent past – especially the Thatcher years and the neo-liberal revolution in English-dominated UK politics. It has to be recognized that there are profound differences of social philosophy now between Scotland and England around the issue of neo-liberalism and the defense of community. These provide good reasons to revisit that 1707 bargain. This revisiting should be on the basis of complete equality. The sharing of common institutions of the United Kingdom, such as the currency, would have to be negotiated after reaching an agreement in which neither side – as so-called continuator state – would have a higher standing.