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Justin Borg-Barthet: A Response to Professor Weiler: On Self-Determination and the EU

Joseph Weiler today published a blog post in which he argues that Scottish independence is incompatible with the ideas of Europe, and that the road to membership is bumpier than some would have it. 

Weiler’s argument rests on three key claims. First, he argues that Scotland will have to rely on Article 49 TEU as an appropriate basis for EU membership. Secondly, he dismisses arguments based on EU citizenship and self-determination. Thirdly, he argues that nationalism is incompatible with the ideas of postnational international relations. 

Weiler suggests that Scotland’s exercise of its right to self-determination includes a Scottish decision to withdraw from the EU.  He attaches some value to arguments concerning the relationship between citizenship and democratic rights to self-determination (on this question, see Sionadh Douglas-Scott’s post).  However, he readily dismisses them.  This is somewhat surprising.  Surely, the Union cannot suggest to its citizens that the exercise of self-determination carries a penalty of loss of citizenship.  This would be especially surprising given that migrant citizens in Scotland are entitled to vote partly as a consequence of Article 22 TFEU.  

Weiler’s claim would be perfectly sound if the legal position concerning Scotland’s relationship with the EU were universally accepted and if voters had not been given assurances concerning EU membership. Yet in reality the position of the Yes campaign is that a vote for independence is in fact the only guarantee of continued EU membership.  In other words, the sovereign will of the Scottish people expressed in that same exercise of self-determination would be just the reverse of Weiler’s interpretation. A consistent claim and concern of the Yes campaign, justified or otherwise, is that independence would protect Scotland from being unwillingly withdrawn from the EU by a eurosceptic English electorate.  In other words, it is hardly tenable to suggest that Scotland’s vote for independence can be equated with a vote to withdraw from the EU. 

Secondly, it is not entirely clear that the consensus view concerning state succession is in fact correct. Prof Tony Carty and Mairianna Clyde argue cogently that the United Kingdom is a composite state composed of the Kingdoms of Scotland and England (and Wales).  Notwithstanding the relative power of those two states, and the perceived reality of their constitutional arrangements following the abolition of the sovereign Scottish parliament in 1707, the legal reality is that independence would result in the re-emergence of two states, rather than the secession of a new state.  In contrast, Weiler suggests that the position is straightforward, and contrasts this with the hypothetical dissolution of Belgium, in which the relative strength of the resulting entities would be unclear and the question of state succession therefore equally so.  While Weiler’s position is in keeping with the generally accepted view, including – surprisingly – that of the Yes campaign, the legal reality is otherwise.  In a Union where the language of power is replaced by the language of law, it is pertinent to note this legal reality. 

Having accepted the view that Scotland is a new entity, Weiler argues that it follows that Scotland, and Scotland alone, must apply for readmission to the Union.  He suggests that the appropriate avenue to do so is article 49 concerning accession.  In other words, this should not be done by simple Treaty amendment under article 48, but via a possibly prolonged process of application for readmission. It is true, as Weiler notes, that Scotland’s readmission should not be problematic in terms of conformity with the acquis.  Equally, it is true that a treaty amendment that would include a state that is not party to the treaties would be extraordinary.  But this argument fails if one accepts Carty and Clyde’s account of state succession.  Moreover, while there is no question that article 49 is in fact the appropriate avenue for admission to the Union, whatever one’s views on the question of state succession, the logic of an argument that suggests that the extraordinary should be addressed in an ordinary fashion is not entirely clear. 

In this context, Weiler also argues that the immediate readmission of Scotland to the EU following independence is politically unappealing.  It would send the wrong message to nationalists throughout the EU.  Here again, the fact that the UK is a composite state is worth recalling.  Scotland’s position is unique in that there is no question of a clear line between the Treaty of Union of 1707 and the re-emergence of two states in 2016.  Other regions with claims to statehood do not enjoy the same position and this important distinction is worth noting. 

Finally, Weiler makes a principled appeal against nationalism.  He suggests that nationalism is incompatible with a European Union that emerged in response to the excesses of nationalism in the first half of the twentieth century.  Again, there is no question of the truth of Weiler’s premise.  Yet the conclusion is unsound.  If the EU were so averse to the exercise of self-determination, why the rush to admit the Czech Republic and Slovakia, Latvia, Lithuania and Estonia, Slovenia and Croatia so soon after their independence?  Indeed, why Malta and Cyprus? 

Further, Weiler’s argument does not do justice to the reality of European governance.  Far from being completely emancipated from the nation state, voting rights in the Council and the Parliament, as well as appointment rights to the Commission are firmly embedded in the notion of statehood.  Scotland’s position as an equal state in this EU would be entirely different from its present situation.  In other words, regardless of the EU’s founders’ opposition to nationalism, the Union remains one of sovereign states, and this is firmly embedded in its current constitutional arrangements. 

In sum, while Prof Weiler’s intervention is a welcome addition to the debate, it is respectfully submitted that EU citizens’ extraordinary exercise of self-determination in Scotland should be embraced and facilitated by a Union that is built on values of democracy and citizenship. 

Justin Borg-Barthet is a Lecturer in the School of Law at the University of Aberdeen.

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