Successor State
2. A thousand years old and brand new
Independent Scotland walks into a bar. Barman says “Are you a continuing state?” Independent Scotland asks “why?”. Barman says “Because you've got to be 18 or over to be served”.
So, independent Scotland, are we a continuing state? This is as important as it gets. If Scotland is a continuing state then both Scotland and the remainder of the UK inherit all aspects and elements of the preceding state in a proportionate manner. If the UK is party to a treaty, after independence both the remaining UK is a party and independent Scotland is a party. If the UK owns an asset beforehand, rUK and Scotland then own that asset proportionately. If the UK has any obligations (such as debts) then those obligations pass to both rUK and Scotland. Or actually, they don't really 'pass' and we don't 'inherit'. We are a continuing state, the same state as before. Just in two bits.
The conventional view on the question is that no, an independent Scotland is not a continuing state. Personally, I think think Scotland should take a principled objection to that stance. Think about it like this; imagine if in any voluntary partnership the bigger partner can decide who gets everything if the smaller partner leaves. You'd get a shock if you put your life savings in a business and then when you tried to sell up your partner said 'no, none of this is yours. If you go outside and queue for three years I might consider giving you some of it, but definitely not all.' Or if you take the 'it's not size, it's that you chose to leave' argument, it seems just as inequitable. So if a wife chose to leave an unloving husband he could just say 'joint mortgage or not, you chose to leave so its ALL MINE!'.
But perhaps I'm being deliberately obtuse here, refusing to recognise standard international law. Perhaps there is a law that says 'the wee bit is always out on its arse when a state breaks up'. This is something you may well have absorbed without anyone ever saying it. There has been a lot of talk about inherited obligations and international charters and such like. If you didn't pay close attention you might have got the impression from Better Together that the world is run by a seamless set of international laws that prove that everything they say is definitely true.
Which brings us to the Vienna Convention. Or more specifically, two Vienna Conventions. One is “on Succession of States in respect of Treaties 1978”. The other is “on Succession of States in respect of State Property, Archives and Debts 1983”. (Don't go! The UN legal stuff will be over soon...) The former of these two makes for alarming reading for Better Together. It identifies two kinds of successor state - "newly independent states" and "cases of separation of parts of a state". The first refers to states subject to colonial rule – they managed to escape the clutches of some empire or other (that's not us). They get a clean slate, no remaining treaty obligation. The other refers to countries which simply choose to break up. So here's the surprise: article 34(1) states that all other new states remain bound by the treaty obligations of the state from which they separated. So, eh, we'd still be in the EU? Go and look for yourself here. The other one basically says 'you split up the assets in proportion to the liabilities'. It's a bit vague and I've already heard it interpreted by different people in very different ways. Have a look at it here.
So Scotland gets Sterling as of right or it has no obligation to take any debt. And we're still in the EU. No, wait, what's this on page one? “Done at Vienna on 8 April 1983. Not yet in force.” Or the treaties one? That is in force. In Iraq, Bosnia, the Ukraine, Egypt and some other places. Not here though. In fact there is no binding international law after all. All that serious-sounding stuff from Alastair Darling about 'international laws and norms' is basically just a bluff. He presumably thinks if he says it with sufficient 'gravitas' we'll all just fall for it.
Sorry to have dragged you through that but it's kind of important. I just needed you to believe me when I tell you that there are no rules at all, we're all making this up as we go along and anyone that tells you there is a 'correct' international legal position is wrong. Every breakup of a state in recent history has followed its own path. Some inherited the rights of the previous state (Czech Republic and Slovakia) some didn't (former Soviet states). Some took some debt (Baltic States) some didn't (African independence). Some got access to their previous currency (Slovakia) some didn't (Slovenia).
What is definitely true in all of this is that you are either one thing or you are another. You are either a continuing state and there is very little to debate about your assets, liabilities and obligations. Or you are a successor state in which case there is not a single certainty. The one thing we are most certainly not is a continuing state when Alastair Carmichael wants us to be and a successor state when he doesn't. If we're out of the EU and we have no access to Sterling, we have no obligation to UK government debt.
Let me be clear; as a matter of principle I object to the arrogance with which Scotland is having its rights and assets unilaterally stripped from us by chortling public school boys. Have we agreed to voluntarily give up our potential rights as a successor state? There is no legal basis for taking them away. But that doesn't mean I'm not salivating at the opportunity to be a new state. I don't want to be Britain. That's the point. I just want people to understand that yes, there are some downsides to that position. Yes we'll need to agree terms for EU entry. It'll be a piece of cake (the EU is sooo going to want access to Scotland's maritime territories) but we'd need to do it. But it's not all downside; with no obligation to accept debt (and no mechanism via which it can be imposed on us) we have a very strong bargaining position. In fact, if only we could start thinking about ditching Sterling we'd have all the cards. More on that soon.
For now, this has been a slightly technical slog through United Nations almost-but-not-quite law. But I wanted to get it out the way so everyone reading can absorb the one crucial point that I hope will change perceptions about how Scotland negotiates its independence.
If they want us to take any debt at all then they must persuade us to do so. So they better start thinking about a very attractive offer.