Scotland and the EU: a Comment by JOSEPH H.H. WEILER

The Scottish referendum on independence is upon us. At some levels it is an easier and ‘cleaner’ case than that of Catalonia: The United Kingdom, in a mature political decision, has allowed this referendum thus removing any objection from either a British constitutional perspective orfrom public international law.

The people of Scotland, many of them at least, resent ‘outside interference’ in what they consider their internal business – the exercise of a right to self-determination. It is indeed their business; but this does not mean that outsiders cannot, or should not, have a view and express that view driven by both prudential and normative considerations.

The issue of greatest concern outside Scotland and the United Kingdom concerns the future, or otherwise, of an independent Scotland within the European Union. Membership would not be automatic – I find the argument for automaticity based, as it has been by some, on the fact that the people of Scotland are citizens of the Union unpersuasive. Citizenship of the Union is predicated on being nationals of a Member State. And if Scotland becomes independent, her people, by their own sovereign decision, would no longer be nationals of a Member State. They are becoming independent from the United Kingdom. (Let me open a first parenthesis. In part the matter is one of framing: If, say, Belgium were to decide to split, it would not be nearly as clear which, if any, of the two – Wallonia, Flanders – would “remain” a Member State and which would have to accede. Perhaps neither.)

Be that as it may, there should be no legal impediment for Scotland to become a Member State if she satisfies the condition for Membership, political and legal, one of which is a unanimous decision of all Member States. On the technical side it should be a relatively easy accession, since the European legal acquis is part of the political and legal fabric of Scotland ...

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