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  By Martin Kelly
 
A leading international lawyer has warned that the Westminster government’s claims on Scotland’s status post independence, risks creating a rift between the two nations that could last “for generations”.
 
Professor David Scheffer has said that claims by London Ministers and Officials that a newly independent Scotland would inherit none of the current UK treaty obligations and benefits, risked “triggering slash and burn consequences that surely would deepen the rift between Scotland and the rUK for generations”

Professor Scheffer has accused Westminster of building the claims on a “pyramid of presumptions” that are resting “on very thin ice” after Whitehall published an analysis that effectively claimed that Scotland no longer existed and independence would mean having to re-negotiate 14,000 international treaties.

The academic also suggested claims made by UK Ministers' were designed to make the legal implications of independence appear so "burdensome and traumatic" for Scotland and its people that "voters will decide it is not worth the effort and vote 'no' on the independence referendum".

The intervention of the academic who is director of the Centre for International Human Rights at Northwestern University School of Law in Chicago, follows publication by Whitehall of a legal advice document that described Scotland as having been “extinguished” by the 1707 Act of Union. 

Unveiled by Scottish Secretary of State Michael Moore, the document concluded that the remainder of the UK would inherit all of the current international obligations and rights and that Scotland would effectively start afresh.  According to the report’s authors, there was an "expectation" that a newly independent Scottish state would take on a share of the UK debt.

However this has been challenged by Professor Scheffer, who argued that the Whitehall report offered no basis suggesting such an obligation could be established.

He said: "The Whitehall report's bold presumption that national liabilities would have to be negotiated and thus shared between Scotland and the remainder of the UK under the continuator theory rests on very thin ice.  On what legal basis would Scotland be obligated to assume any significant level of United Kingdom liabilities if the rUK is the continuator state?  The Whitehall opinion offers no basis for establishing an obligation to share financial liabilities."

Professor Scheffer also questioned the claim that Scotland ceased to exist after the Act of Union.

"No one doubts that Scottish sovereignty existed more than three centuries ago, whereas in almost all other self-determination movements the clarity of former sovereignty has been absent.  Two sovereign nations entered into the Treaty of Union of 1707. 

"That treaty united two countries into ‘One Kingdom by the Name of Great Britain,’ but the Whitehall report opines that ‘…Scotland certainly was extinguished as a matter of international law, by merger either into an enlarged and renamed England or into an entirely new state.’"

He added: "Some would strongly disagree with this conclusion and argue that the Scottish people retained their right of self-determination within a distinct part of Great Britain that continued with an autonomous national character (particularly in law, culture, and religion)."

The academic pointed to the 1978 Vienna Convention on Succession of States in Respect of Treaties, insisting that it favoured Scotland in “creating a more balanced approach to the transition” but that this had simply been dismissed by Whitehall as not binding on the United Kingdom.

Questioning Westminster’s current stance, which he described as “politically destructive” he added: “A constructive way to approach the transition to independence following an affirmative vote on the referendum would be to adopt a plan whereby two co-equal successor states mutually agree to approve or acquiesce in continued membership for both states in international and regional organizations and approve or acquiesce in relevant treaty relations.  

“That would be an amicably negotiated basis for transition that is credible under international law and respectful of the rights of the citizens of both Scotland and the rUK.  It would avoid a “clean slate” approach for Scotland triggering slash and burn consequences that surely would deepen the rift between Scotland and the rUK for generations.”

Professor Scheffer said concerns over the UK’s current seat on the security council and other key organisations could be addressed by adopting more conciliatory approach.

"Whitehall could seek Scotland’s acquiescence to the continuation of the rUK’s status in the Security Council and other key organizations and treaty arrangements.  The Scottish acquiescence would be far more convincing to other governments than for the rUK to advance the continuator theory and hope for the best,"

He added: "Other governments likely will be drawn to a cooperative methodology for transition, rather than one grounded in isolating Scotland while rewarding the rUK.

“In return for Scotland’s acquiescence, the rUK would be expected to readily endorse a smooth transition for Scotland’s membership in, among other entities, the United Nations, NATO, World Bank, International Monetary Fund, and the European Union.  As it stands, the Whitehall report seeks to create the most difficult pathway when in fact there is a much easier one to take if only London were willing to help pave it."

Dealing with the issue of EU membership, Professor Scheffer said the Whitehall was “at its weakest” when dealing with the EU citizenship of Scots.

"The better alternative would be endorsing a negotiated co-equal successor state status in the negotiations.  There is a sound basis in international law for it.  If the talks are approached in that spirit, the stage would be set for far more productive and efficient grants of approval and acquiescence to facilitate treaty relations and membership in organizations of an independent Scotland."

He also claimed that the issue of the substantial level of UK debt presented a newly independent Scotland with a negotiating advantage.

"Scotland’s leverage nonetheless would lie in agreeing to negotiate the sharing of national liabilities if the rUK sets aside the continuator theory as the basis for legal implications and agrees to negotiate in good faith with the commitment to approve and acquiesce where necessary to facilitate Scotland’s engagement with the international community."

Comments  

 
# WRH2 2013-03-03 22:53
Prof David Scheffer is a voice that the "Tethered together" lot should listen to and seriously consider what he is saying about the state of relations that might exist between Scotland and England post independence. The tension that existed between the Republic of Ireland and the UK should be a lesson. Do they really want a repeat of that? I have no problem with Unionists putting forward their arguments in defence of the Union but do it honestly. Well, that is if they ever get round to it.
O/T. Really good news about the appeal. I hope you will be announcing who the Newsnet editor is going to be during the week.
 
 
# call me dave 2013-03-03 23:01
As I said when the professor first came on the scene
"I want him to hold the jackets when the negotiations start"

This is music to the YES people and it's clear and full of common sense and without rancour.

It's an approach which must resonate with other countries who, let's face, it dont want to rock the boat.

Good start to the week and fully expect it to betop news on GMS later.

Roll on 2014
@;]
Edit: Aye right!
 
 
# Marian 2013-03-03 23:09
I agree with most of what Professor Scheffer says which I think is the best analysis of what is going on we have seen yet, but would go further and suggest that irreparable damage has now been done that can never be repaired to the relationship between Scotland and the rest of the UK because of the volume if insults, lies and sheer vindictiveness that has been employed by the unionists in their hate filled campaign.
 
 
# hiorta 2013-03-03 23:23
Absolutely Marian. The Westminster contempt for Scotland, her people and her interests and values are getting seriously tiresome.
 
 
# taimoshan 2013-03-04 09:59
Agree totally with Marian - Westminster and it's unionists have created bad feeling which may last for decades. Great article from the Prof - coded for "grow up Westminster"!
 
 
# ButeHouse 2013-03-03 23:15
Professor Scheffer's words need to be repeated in leaflets all over Scotland. Agree with dave and Marian this has been a good start to the week following an excellent performance from the FM in Thursday's FMQs - not to mention the various learned articles knocking the Tethered Together (Thanks for Tethered WRH2, so much better than better)argument s for six on several fronts.

VOTE YES in 2014
 
 
# graememcallan 2013-03-03 23:20
A clear and conscice argument from a respected Prof to help smooth the way if we were to grow a pair and go for Independence. I agree that Scotland would be in a strong position when it comes to negotiation of the assets, and expect that some of these will be traded for further gains, at the SG's discretion. The brilliancy in this chess move would be to then point out you have 7 days to remove your nukes, so consider your response carefully. That should ensure that Scotland will be treated fairly, and above board for all to see;-)))
 
 
# Am Fògarrach 2013-03-03 23:40
Professor Scheffer seems to consider independent Scotland being a member of the EU as a done deal. Although this may be SNP policy, the SNP has no power to enforce it without a referendum specifically for that subject.

Scotland's existing membership of the EU through the UK's membership is the worst calamity to hit Scotland since 1707. Considering the Common Fisheries Policy (CFP) alone, The CFP virtually destroyed the Scottish fisheries industry. This policy alone is costing Scotland considerably more than £1,500 million in lost wealth creation every year. The EU has destroyed tens of thousands of jobs through the CFP. And the incompetence of the EU’s management of the CFP continues to this day.

Independent Scotland can NEVER be independent in the EU. It will merely be exchanging its vassalage to Westminster for PERMANENT vassalage to Brussels.
 
 
# CharlieObrien 2013-03-03 23:49
All good for me.Just got to get the BBC to tell the whole truth and that after independence will we keep any of them in public pay?Newspapers will require a license and honesty will be the bench-mark,maybe they will need to learn this.
 
 
# clootie 2013-03-03 23:54
...."appear so burdensome and traumatic"

No positive case. A campaign based on creating fear and doubt.

The damage has been done and even if they achieve a NO vote this time it is only delaying the inevitable.

However I am still planning for success in 2014 so why let them spoil the party at such a great moment.

Remember it is the institution - Whitehall / Westminster/ etc and not the people of England.

In the meantime I look forward to tomorrows story that after Independence we will have to drive on the right as we are no longer British.
 
 
# Jim Johnston 2013-03-04 03:16
Absolutely agree with you clootie.
It's the institutions of "Empire" Scotland will smash, not the people of England who never have been, and never will be, the target of Independence.
 
 
# cjmasta 2013-03-04 03:17
I Don`t understand why the unionists are not pulled up at every opportunity for having Scots believe that we are an economic basket case when we`d be the 6th richest nation on earth ahead of the rest of the UK and more than able to pay for and protect our NHS,Benefits system, Scottish water etc.

The only way for Scotland to protect these things from the ever more by the day right wing ideology of our neighbours is to vote YES in 2014.

The Scottish unionist MP`s no longer can or will fight for Scotland, Did or could they ever anyway? They seem too busy trying to convince everyone that we`re useless, insignificant, racist spongers.

I hope the constant negative media campaign can be broken by cold hard facts and a positive vision.

We have so much to gain from ridding ourselves of Westminster and representing ourselves in the world.
 
 
# Macart 2013-03-04 07:20
Aaaaaand finally the voice of sanity. Professor Scheffer has pointed out the elephants in the room quite concisely 'the Vienna convention' and political expediency. As the deputy FM already pointed out 'what debt?' in reply to the clean slate scenario. The whole point of the publication of Westminster's legal advice was twofold - 1. The usual ho hum threat and 2. The opening of negotiation.

Next.
 
 
# RaboRuglen 2013-03-04 07:49
Hi there,

Its a particularly hard time for the "Yes" campaign at the moment because Westminster holds all the cards. In the event of a "Yes" success, we will hold all the cards, that is rUK will be absolutely bankrupt if we don't adopt Sterling as a common currency, agree to take our share of the sovereign debt, and so on.

You can see the light bulb of realisation slowly beginning to illuminate above the Unionists' heads regarding the use of the £. The backtracking is beginning already.

Anyway, if the unthinkable happens and we don't get a "Yes" majority in 2014, there is another chance shortly thereafter in the General Elections to Westminster in 2015. If the SNP campaign for UDI in those elections, and get a majority of seats, what's to stop us? With the FPTP voting system I think we will do it while still having the majority in Holyrood.

Regards,
 
 
# cjmasta 2013-03-04 10:39
Maybe offer a further referendum giving Scotland the option of the status quo, a renegotiation of the current union taking full control of our wealth in the process or declaring independence outright.
We really need to hammer home that Scots no longer have to take such things as the bedroom tax lying down as we have an historic opportunity to shield ourselves from the worst Westminster can throw at us.
Keep calm and carry on as normal is not an option.
 
 
# UpSpake 2013-03-04 07:54
Upon Independence, our cross-border relations between our peoples will be - just fine.
Not so our realtions with a wounded lion that will be the Great British Establishment. By Indy day, we will have experienced the very worst of Perfidious Albion, make no mistake.
I personally doubt that it will end there. I firmly believe that every effort will be made to undermine what will be Scotland's new institutions with a view to cutting off independence before we even get a whiff of freedom.
This is where I diverge from the SNP. Even as things stand today, with much of our infrastructure being dismantled before our eyes, the Scots Government ie the SNP should be stepping in and rescuing what is being asset stripped by London and where insttutions do not exist, creating shadow agencies, ready to be incorporated on Independence Day.
For those who argue to delay everything until after the Yes vote comes through encourages those south of the border to up the anti.
 
 
# dtr 2013-03-04 15:37
Good points and I agree with; "Even as things stand today, with much of our infrastructure being dismantled before our eyes, the Scots Government ie the SNP should be stepping in and rescuing what is being asset stripped by London and where insttutions do not exist, creating shadow agencies, ready to be incorporated on Independence Day."

...however, to do this they would be pilloried for making an assumption that Scotland will say yes.
 
 
# Leader of the Pack 2013-03-04 08:06
We are dealing with 2 seperate scenarios here. One which is pre Independence and one which is post Independence. During the pre Independence phase the Westminster Government will indeed pursue the path of singular successor state and newly formed seceding state right up until the vote. With a yes vote this position will have to change to allow law to determine the path of the transision. What Westminster says now is not relevant to what they will be forced to conclude post referendum! Westminster are trying to create false realities before the vote in order to influence it but they know once the vote is cast it will be the legal precedence which will determine the nature of the split and the only legal precedence in existance is the Act of Union 1707. NOTHING ELSE EXISTS pertinant to the UK constitutional status. The Russian Republic did not remain as the Soviet Union so how the No campaign can use them as an example to support their claims is anybodies guess.
 
 
# theycantbeserious 2013-03-04 09:11
Wasteminster is finding itself, not just up against the Scottish Governments argument, the legal argument and the rational argument, but are now up against rational legal argument from around the world. The union it appears is loosing the argument! Excellent stuff and should be made available to the people of Scotland!
 
 
# Zed 2013-03-04 10:34
OT.

Hearing the Communication Workers Union have come out in favour of independence.
That's the Fire Brigade & Prison Officers in favour also. Waiting on the Police now
Wonder what the Unionist Labour party think of that?
 
 
# colin8652 2013-03-04 11:10
Labour can not be looking forward to the next STUC conference. !
 
 
# Alba4Eva 2013-03-04 13:38
Quoting Zed:
OT.

Hearing the Communication Workers Union have come out in favour of independence.
That's the Fire Brigade & Prison Officers in favour also. Waiting on the Police now
Wonder what the Unionist Labour party think of that?


Do you have a link for that, with regards to the CWU, I can only find an article singing the praises of the Lamentable one?
 
 
# Robabody 2013-03-04 21:48
 
 
# Dcanmore 2013-03-04 14:17
They know very well what's happening in England. The London Fire Service is being prepared for wholesale privatisation and I'm now seeing NHS ambulances with G4S branding with the legend "NHS Ambulances in partnership with G4S", a company which has former Labour Health Secretary (Lord) John Reid as a non-excecutive director.
 
 
# gavin 2013-03-04 12:43
This is all very well, but unless the BBC in Scotland can be forced to report on articles of this nature( and others in a similar vein ), and in a neutral manner, then it may as well not exist, given BBC Scotlands dominent position.BBC Scotland inflates stories that show independence in a negative light and ignores or downplays positive stories.
It may be time for the YES campaign to put a marker down with this organisation, and tell them it will boycott it if it cannot be trusted to report in a fair and unbiased manner.
 
 
# bluecross 2013-03-04 13:31
Back in the day of sailing ships, shiny buckle shoes and long white socks independence was in fashion, now the latest fashion, which is likely to stay for some time is Globalisation. With that in mind Scotland will never be "independent" any more than England is "independent".

You are only voting for a "perceived independence" of which we will not benefit, apart from the politicians who either way of the outcome benefit from the satisfaction of working for the people...or is that paid by the hour? I always get those mixed up...
 
 
# dtr 2013-03-04 16:50
I don't think people who wish independence are averse to the inevitability of globalization; the problem is one of seeking fair representation with a consequent fairness in policy, a route for which increasingly looks like independence, such being the ever divergence of the Westminster government from Scottish values.
 
 
# bluecross 2013-03-05 09:49
dtr

Part of my point being it is not inevitable, globalisation is already here, which effects us normal people in everyway and has done for many years and will do until we die. Therefore independence is impossible.

I want fairness, sadly our politicians do not control our country and neither will Scottish politians if they get "independence". What you and I as individuals consider to be fair is irrelevant in the eyes of the World Market

Scottish values,one of those terms which means different things to different people,like being British. The reality is people are more concerned about how much the next car service is going to cost and don't care
 
 
# clootie 2013-03-04 17:03
bluecross

We may well have to exist in the bubble of globalisation. However every benefit we gain from different choices improves the quality of life for those who live in Scotland.
Free education / prescriptions / bus travel etc.
The choice not to have nuclear weapons on our land is a worthwhile principle.
To reduce the gap between rich and poor is a worthy pursuit.

I don't consider these "local" changes a perceived independence - it sounds very real to me.
 
 
# maisiedotts 2013-03-04 17:26
Quoting bluecross:
You are only voting for a "perceived independence" of which we will not benefit


Wrong! What we gain as a nation state is democratic power over "Reserved and Excepted Matters" the normal rights of any independent sovereign nation. The most important of which is the right to have a written codified constitution which is something the UK doesn't have.
 
 
# cjmasta 2013-03-04 23:33
I like to ask folk from England how they would feel if their votes didn`t matter in elections because they always get the government their neighbours vote for.

Would they be happy having a party they not just didn`t vote for but despise because their policies and so called values are polar opposite to what they wish.

With our "perceived independence" we can choose to share sovereignty where it suits us to do so instead of being hanger on`s to the Westminster juggernaut.
 
 
# bluecross 2013-03-07 10:34
You cannot have independence in a globalised world, therefore it is "perceived independence", too little too late.

Old fashioned values applied to the new world order does not work. Meanwhile China will invest £70billion just on its military. Some countries are growing some are not. Globalisation. UK cannot cope with with the competition accept it gracefully.

You will have the same voice now as being "independent".

In 5 years time when nothing has changed and you're still blaming each other for the reasons at least you can tell yourself that you are "free in the nation state" ...even though you are owned by foreign investors.

Just my 2 cents worth.
 
 
# Ready to Start 2013-03-04 13:38
Unfortunately all the expert rational opinion supportive to the independence / small is beautiful argument is ignored by the mass media which prefers the anti independence scaremongering Sunday on Mail type headlines that predict catastrophe if we leave mother England.

Where is the mainstream coverage of how small countries succeed in a changing world by Dr David Skilling

davidhumeinstitute.com/.../...
davidhumeinstitute.com/.../...

or how North East of England views the independence debate and London centralisation.

dropbox.com/.../...
 
 
# Kinghob 2013-03-04 13:51
am fogarrach: "And the incompetence of the EU’s management of the CFP continues to this day."

My uncles who are from Benbecula and the Uists, and those from Barra say that a lot of mistakes were made by the pure lack of foresight and 'greed' of the Fishing Industry here in Scotland in the early '70's- I don't stick up for the uk government much as there is little need to they are so inept and petty, but that\'s what my relatives say.

I don't see the point in banging on and on about the EU unless you are a UKIP type or unionist type as we will be Independent and can hold our own referendums on such matters if we wish to.
 
 
# proudscot 2013-03-04 13:59
Haven't heard much on TASS (aka BBC Scotland) about Professor Scheffer's positive comments, nor from Darling, Moore, or any of the usual suspects either.

Re the Police declaring openly a political preference of any kind, they are forbidden to do so, as they must remain, and be seen to be, politically neutral. This is essential in a democracy. Of course, individual police officers are free to hold political opinions, but only in private and not as representative of the police force itself.
 
 
# From The Suburbs 2013-03-04 14:00
Agree with Kinghob.

Lets get independence first like the other 27 EU members then as a modern democratic nation the people of Scotland can decide their future in Europe and on currency, defence, monarchy, etc
 
 
# Rafiki 2013-03-04 15:03
I look at the elctronic copy of the SCotsman every day. This morning I read the Herald on Professor Scheffer; when I read the Scotsman contribution it is headlined and slanted to give the opposite view. According to them, the SNP case is on "thin ice" - not the UK Government's one.
 
 
# Leswil 2013-03-04 18:26
Good Editorial, the Prof says all the important things.Let us just hope it gets out.
However I agree with a post here that rUK will throw the toys out of the pram, because their own agenda's will be decimated by an Independent Scotland.

We could be grown ups and deal as good neighbours and work together in many circumstances to the benefit of both, but the old colonial's are perhaps unable to swallow that.
I also thin that SG need to be making more of this stuff widely available somehow, and they need to get the Scottish back up, if everyone knew all, most would feel offended, and that may carry us through to a YES vote.
I feel that being the nice guys all the time, maybe not enough.
 
 
# birnie 2013-03-04 21:11
I also think that SG need to be making more of this stuff widely available somehow, and they need to get the Scottish back up, if everyone knew all, most would feel offended, and that may carry us through to a YES vote.

It looks as though the new website www.simplify2014.com will help greatly in the dissemination of factual information and implications of Yes/No votes.

Looks like we are indebted to the folks from Newsnet again!
 
 
# robert de brus 2013-03-04 20:16
Zed and Alba4Eva
POSTAL WORKERS VOTE TO SUPPORT YES VOTE IN 2014 "We recognise that under consecutive governments the gap between rich and poor has widened and that the UK remains one of the most unequal societies in the developed nations of the world."

We further recognise that round after round of anti-trade union legislation, introduced by Tory governments throughout the 80's and 90's remain on the statute book despite 13 years of Labour government '97-2010."

"To this end we believe that the only way forward for workers in Scotland is to ensure a YES vote in the referendum and we agree to do all in our power to secure such an outcome."

Scotland No.2 Branch of the Communication Workers Union
 
 
# Basil Metabolism 2013-03-04 21:03
As somebody mentioned elsewhere (apologies to the original poster of this) the treaties could simply be a matter of sending a letter to the UN. Read the Slovakia portion of this:
treaties.un.org/.../...
 
 
# robert de brus 2013-03-04 21:05
Zed & Alba4Eva

Came across the following article.

politicsuk.eu/.../
 
 
# call me dave 2013-03-04 22:30
This is what we want to hear. It's not a big surprise either as I suspect that there is a bigger vote out there for the 'YES' than the unionists suspect.
That's the postal vote sorted then.
@;]
 
 
# robert de brus 2013-03-05 06:08
call me dave
Afraid that it is wishful thinking on suggesting that the postal vote is sorted. The CWU Scotland No.2 Branch which covers postal members in the EH, KT, TS & FK postcode areas is only 1 out of 14 listed CWU Branches.
 

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