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Scotland: the Day after in Europe

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The issue of Scotland continuing as a member of the EU membership has largely lost its saliency in the Scottish independence campaign. ‘Better Together’ cannot threaten Scots with expulsion if the UK is preparing to leave anyway.

This presentation by Dr. Nicolas Levrat, head of the Institute of Global Studies at the University of Geneva, definitively puts the issue to rest. This was part of the second in a series of academic conferences on ‘Constitutions for Europe and new European States’

Link: https://www.youtube.com/watch?v=7ML6nRyXmIA&feature=youtu.be

Dr. Levrat made the following points:

– Scotland being ejected from the EU would violate the core values upon which it is founded. Making an argument consistent with the Laeken Declaration of 2001: “the only border for Europe is democracy, so basically if you are a democratic state, you can become European. It’s not that easy, we’ve seen with Ukraine and other countries it may be difficult, but anyway that’s the position of the EU, and also if you look at what happened, the EU has logic of enlarging, and will not change especially for territories as Scotland who are part of the core territory of the EU”

– He also described how Algeria came out of Europe after French decolonisation, and it took several years. Scotland could in no way be immediately ejected. “no one day in and one day off, it doesn’t work like that”

– The European Court of Justice Rottmann case of 2001 clearly demonstrates that there can be no abrupt changes EU citizenship status, so there is immediate way Scots can be deprived of EU citizenship if they vote for independence.

– Article 50 of Treaty on European Union stipulates that no state can leave unilaterally. Any decision for a member state to withdrawal must be made according to a democratic procedure, after which there is at least 2-year period during which the new terms of the relationship is codified.

– The example of Northern Cyprus occupied by Turkey continuing to part of the EU shows that the EU can be flexible in the status, even if the region is not a member state.  “So we can imagine where Scotland is not under the sovereignty of the UK, is not yet declared as a member state of the EU, but remains, because it was part of the UK, under the umbrella of EU law. That could be a solution. (…) We could imagine a situation in which the individual rights of people living in Scotland, of companies based in Scotland and so on would be preserved even though Scotland is not anymore under the effective control or sovereignty of the UK.”

– Expending on the flexibility of the EU “When (Cyprus) joined, a protocol was added to the treaties, to the accession treaty. It was a big accession treaty because it was coming in with 9 other member states. You remember maybe in 2004 it was a big enlargement 10 states. (…) It’s interesting to note that out of those 10 states, 6, that’s more than half, were not states 15 years before. They were part of other states, like Czech and Slovak Republic, like Slovenia, like the three Baltic Republics. So 6 new states, which did not exist 15 years before, became EU member states, so this idea that EU will not recognize a state which just walked out of a former country is a joke, they already did, several times. And they keep doing it. They did it last year with Croatia.”

Dr. Levrat’s presentation not only makes an airtight legal case that Scotland cannot be thrown out of the EU after a ‘yes’ vote, but that there is ample precedent for EU to adapt to situations in which the treaties are silent. Even if Scotland is not an individual member state immediately upon full independence in March 2016, there is no reason to fear any type of major disruption in Scots EU citizenship status.

It also should give ample food for thought to UK citizens who are considering voting to leave the EU. Even UKIP wants to maintain a free-trade area with the EU. However, given that it is impossible for Cameron to renegotiate the treaties and get a ‘better deal’ before a 2017 referendum, UK citizens need to know what this implies.

Assuming there is a 2017 referendum, if not before, a ‘yes’ vote to leave will lead to negotiations with the EU for at least 2 years, during which EU law will continue to apply. While it is the desire of all UK parties to maintain the trading relationship, how do they have any way of knowing they could secure it? What happens if they can’t? How would finance and industry react to this prolonged uncertainty.

Perhaps the r-UK could join the European Free Trade Agreement with Switzerland, Norway, Iceland, and Lichtenstein, if they will have them. They maintain trade and other treaties with the EU, but are not members. That means the r-UK would still have to live under most of the treaties they hate, but would have no influence over their formulation. The worst of both worlds.

Dr. Levrat’s presentation is an invaluable contribution to the debate, for voters on all sides.

First published on Newsnet.scot on 31 August 2014 as part of a series of articles on constitutional issues published between July 2012 and Sept 2014.

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