Scotland and the EU: Comment by KALYPSO NICOLAIDIS

A spectre haunts Europe: disintegration. The on-going drama of the Euro-crisis and talk of Xits, from Grexit and Brexit have made it so. This may be why so many EU officials have found it wise to comment on the Scottish referendum and have done so as EU officials rather than in their personal capacity, affirming with great aplomb that a YES to independence would likely mean a NO to the EU. Why the urge? As both Sionaidh Douglas-Scott and Joseph Weiler make clear, the legal case is, if not exactly clear-cut, at least tractable. This opinion is notable on the part of Joseph Weiler given his passionate disapproval for secessionist movements in mature democratic states, in a Europe which should be about togetherness rather than separation.

“Where there is a (political) will, there is a (legal) way.” This is what EU law seem to mean in this case. Of course, one could argue that the law always bends to politics, that Courts prefer to be cautious and relevant than contrarian and ignored. But when it comes to the Scottish issue, lawyers simply cannot lend their weight to the EU officials’ line with a straight pen. As argued in Sionaidh Douglas-Scott’s crisp contribution, several overlapping arguments converge. The appeal to international law is rather spurious. Even if in theory, seceding states need to renegotiate their membership, in practice, as she reminds us, many international organisations automatically recognize seceding states as members. More importantly, EU law does not automatically follow international law. For sure, there is no Treaty provision that would require Scotland to leave the EU on independence ...

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