CURIOUSLY, the decision of Kosovo to declare independence from Serbia has come and gone without sparking much of a debate in Scotland regarding the implications for our own constitutional future. So it may as come as a surprise to find that readers of newspapers from the Times of India to the Charlestown Daily Mail in South Carolina have been reading articles on how Kosovo might impact on the prospects for Scottish independence.
The reason is straightforward: while Britain, the United States, France and Germany have recognised Kosovo as a sovereign state, the rest of the EU has split on the matter. Spain, Cyprus, Slovakia and Romania are refusing to recognise Kosovan indepen
dence lest it encourage ethnic separatism in their own backyards.
Cyprus is determined to avoid a precedent that might confer legitimacy on the Turkish enclave in the north of that island and called Kosovo's move "a violation of the territorial integrity and sovereignty of Serbia". More significant was the decision of Spain to withhold recognition lest it encourage Basque separatism at a time when ETA, the Basque version of the IRA, has abandoned its ceasefire.
The "so what?" here is obvious: would these EU members be equally intransigent when it came to recognising an independent Scotland, and would they go so far as to try to veto continued Scottish membership of the European Union itself? Given what has happened over Kosovo, I don't think we can blindly dismiss the theoretical possibility.
But equally, there is a major difference between the position of Kosovo and that of the UK, which is an existing member of the EU. If England and Scotland decided to dissolve their union (or if Belgium did the same), by what mechanism would any of the successor states be expelled from EU membership?
It will be pointed out that the normal convention in such situations is for the larger entity to be recognised as the "successor state" which retains the treaty obligations of the previous state irrespective of the fact its boundaries have changed. Thus Pakistan retained its membership of the UN after Bangladesh seceded in 1971, while the latter had to wait three years before joining.
However, things are not this straightforward. In the Pakistan case (and similar situations), the legal personality of Pakistan was not extinguished. The dissolution of the 1707 Treaty of Union, on the other hand, might be interpreted as the end of the legal personality of the UK, with no successor state having an automatic right to membership of the EU or UN. This outcome could be fun, as I think the English would whoop for joy and refuse to have their EU membership back.
Another intriguing legal precedent is the case of the break-up of the United Arab Republic in 1961. Egypt demanded recognition as the successor state. But Syria, which had seceded from the UAR, simply took up its UN membership where it had left off after the earlier merger with Cairo – with no-one batting an eyelid. In this case, it was deemed that Syria's legal personality had merely been in abeyance between 1958 and 1961. Scotland was surely a legal entity before 1707 and so could not be deemed a "new" state after independence – more grounds here to keep the European Court of Justice at work for years.
Talking of the court, which deals with constitutional wrangles inside the EU, the new Lisbon Reform Treaty is very specific that I am a citizen of Europe with guaranteed rights. If any institution of the EU (eg, the Commission) tries arbitrarily to end my citizenship without my consent – say, by excluding Scotland from the EU – I assure you the matter will be referred to the Court of Justice.
If circumstances dictate, I also plan to use the new procedure under the Lisbon Treaty to raise the signatures needed for a "citizens' initiative" to force the Commission to reconsider any attempt to throw Scotland out of the EU. I wonder if the Spanish would be willing to block ongoing Scottish membership if lots of those signatures were going to be raised in the Basque Country or Catalonia.
Then there is the new Article 49 of the Reform treaty, which covers the process for countries leaving (or rejoining) the EU. Article 49 is explicit that an existing member state cannot exit the EU for at least two years, or until the member states have drawn up a protocol on future relationships. There is a very good case under Article 49 for saying that even if Spain, Cyprus and other members were trying to have Scotland thrown out (as a warning to their own minorities) they could not do it for at least two years, or until they had unanimous agreement to do so.
The point about all this arcane international law is that Scotland's situation is very different from that of Kosovo. If Britain ever does dissolve into its constituent nation states it will be a friendly rearrangement remote from the poisonous ethnic intrigues of the Balkans.
Indeed, there is a decent case to be made for showing the Balkans (or Spain) how civilised constitutional reform can take place without bloodshed.
That is best done within the co-operative framework of the EU, whose greatest achievement has been to end the historic enmity between France and Germany. Anyone using the threat of expelling Scotland from the EU – either as a means of choking the desire for self-determination elsewhere, or to frighten the Scots – is misunderstanding why we have the EU in the first place.
