Oxford University's Sionaidh Douglas-Scott weighs in on the debate over EU membership for an independent Scotland.
In July 2014, Jean-Claude Juncker was designated as new President of the European Commission. It may be that he will take a more neutral approach to the question of an independent Scotland’s EU membership than that of his predecessor, José Manuel Barroso, who famously stated that it would be: ‘extremely difficult, if not impossible’ for an independent Scotland to join the European Union.
The puzzle is why Barroso (and some other EU officials) should appear negative about the prospect of an independent Scotland’s continued EU membership. For while either side of the independence debate may have a strong interest in portraying Scotland’s future in the EU as either plain sailing, or as a via dolorosa, the EU itself should have no such vested interest. I write ‘should’, for in the EU, as in other areas of public life, the fractional and the partisan of politics all too often dominate over matters of principle.
Yet EU law itself offers many resources for a newly independent Scotland to be confident about its continued membership. I have argued elsewhere that the values, norms and ‘special ethos’ of the EU, expressed in concepts such as EU citizenship, fundamental rights and duties of loyalty, combine to provide a reasoned justification for an internal enlargement of the EU using the procedure for treaty amendment in Article 48 TEU, rather than necessitating the cumbersome accession procedures for a new member state (which has been colloquially referred to as ‘the Croatia route’).
The EU is a new and singular legal order that goes beyond the traditional state-based concerns of international law, and is quite different from other international organisations. The EU also notably takes a pragmatic and purposive approach to pressing issues that are not dealt with by specific treaty provisions. Within EU law, there exists no precedent for what happens when a territory of an existing Member State becomes independent, and wishes to retain EU membership, and the treaties do not provide for such an event. However, there was no explicit provision in the treaties capable of dealing with the situation of German unification in the 1990s. But the (then) EEC Institutions responded to this event in a pragmatic and expedient manner, enabling a united Germany to become a member of the EU without long drawn out negotiations, accession proceedings or legal wranglings. I believe that such a pragmatic approach would be taken in the case of Scotland.
The alternative approach, which would threaten to cast Scotland out into the wilderness of non-EU land, while it reapplies for EU membership, is totally unsatisfactory and unrealistic for the following reasons.
First, it threatens to cast out Scotland from the EU, thus fracturing the Single Market, ignoring acquired rights and obligations of good faith. Scottish migrants to other EU countries, and EU migrants in Scotland, could be rendered illegal immigrants overnight. Second, it ignores the existence and growth of EU citizenship, a citizenship possessed by all Scottish nationals and famously proclaimed by the European Court of Justice as ‘destined to be the fundamental status of nationals of the Member States’. Lastly, it is difficult to reconcile with the EU’s values and norms as enshrined in the general principles and spirit of the EU Treaties. Democracy, the rule of law and fundamental rights are particularly stressed by the EU. How could an institution such as the EU, that has promoted the cause of democracy at home and abroad and proclaimed it in its post-Lisbon headline statement of values in the treaty, act in such a way as to dispossess Scots of their acquired rights and EU citizenship as a result of Scotland using the democratic right to vote for independence? This would seriously undermine the EU’s credibility and its claim to be a promoter of democracy.
Therefore although, in the instance of Scotland’s independence, the EU treaties would have to be amended (but not hugely) and this would require the assent of all – currently 28 - EU member states, it is unthinkable that Scotland’s acquired rights and position as member of the EU Internal Market would be suspended, or even terminated, in the meantime. The warning that Scotland would face a ‘long and winding road’ back into the EU misrepresents the situation and has more than a touch of alarmist scaremongering. The EU would have to take the pragmatic and realistic approach that it has always taken in the face of the untoward events that have been thrown in its way. To do otherwise would be not only to ignore the acquired rights and obligations of millions of EU citizens, but also to ignore the EU’s very own solemn proclamation of the values of democracy and the rule of law.