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Scotland Gets A Lawyer, But The Case Is Still Weak

The war of words between Scotland and the Cameron government is intensifying as the Scottish independence referendum approaches. Last week, the British government released a report warning Scotland of the ramifications of an independence vote. Most importantly, the UK argues that an independent Scotland would need to renegotiate the thousands of international treaties it is currently party to as a member of the UK, as well as its membership in international organizations like the EU and WTO.

The Scottish independence movement has long held that these claims are untrue, that an independent Scotland would be entitled to a share of UK assets and wouldn’t need to renegotiate any treaties or assume any of its debts. This week, the independence campaign got some backup from David Scheffer a prominent international lawyer who takes issue with the UK report and claims that Scotland would retain its position in international organizations despite its separation from the UK. The Scotsman reports:

In an opinion published on Deputy First Minister Nicola Sturgeon’s blog, he said: “The Whitehall report’s bold presumption that national liabilities would have to be negotiated and thus shared between Scotland and the UK (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 UK is the continuator state? The Whitehall opinion offers no basis for establishing an obligation to share financial liabilities.”

Scheffer paints a very pretty picture, but Scots should remember that these questions will not be decided by legal briefs. They will be decided by votes and procedural moves in international organizations whose members (national governments) are as a group pretty much rigidly and bitterly hostile to secessionist movements of all kinds.

African governments are petrified that independence movements would break them up along tribal or regional lines, and would be likely to oppose similar actions elsewhere in the world. In Europe, the Scots can be 100 percent certain that governments like Spain will throw every possible spanner in the works to demonstrate to Catalans and Basques that secession is a painful ordeal rather than a stroll in the park. Even the Canadians would be tempted to quietly work against the Scots as a way of reminding Quebec that secession has risks and costs.

Turks, Iraqis, Iranians and Syrians don’t want the Kurds to think secession is easy. The Kremlin hates the thought that Chechnyans and others would think they can escape Mother Russia’s warm embrace. China doesn’t want Tibet to get any encouragement whatever. Everywhere an independent Scotland looks it will find powers great and small quietly but effectively working to put obstacles in its path and to interpret international rules in ways that make Scotland’s path as difficult as possible.

International law is a complex field and you can find lawyers who will take any position under the sun, but there are few things more certain than the resolve of most sovereign states to interpret international law in ways that make it harder for secessionist forces to break up existing states.

[Scottish flag image courtesy of]

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