The right to self-determination of the people of Scotland is not in dispute. That right is enshrined in Article 1.2 of the Charter of the United Nations. Which peoples qualify to benefit from that right is a frequent subject of dispute, but the case of Scotland has been conclusively conceded by the government of the UK in agreeing to the 2014 Independence referendum and agreeing to abide by the result.
The people of Scotland thus have multiple citizenships. They are citizens of Scotland, and of two over-arching bodies, of the United Kingdom and of the European Union. Both UK and EU citizenship are very real, with EU citizenship in particular conferring a wide range of individual rights to the citizen enshrined in numerous international treaties. This dual citizenship is reflected on your passport. On both the cover and the inside page, it says European Union above United Kingdom.
This raises the question of what happens if the people of Scotland, with their right of self determination, experience an unwilling conflict between the two superior citizenships. This will arise if the United Kingdom votes to leave the European Union while Scotland votes to remain in. The situation of conflict will be that a self-determining people will have voted in referenda to retain two overarching citizenships, but by force majeure be able to retain only one of them.
The position in international law given this outcome is absolutely clear. Being unable to follow both results of referenda of the Scottish people, Scotland through its government will have the right to determine which citizenship to retain. EU citizenship is arguably the superior citizenship, conferring much wider rights.
There is in any event no requirement in international law for a referendum on Independence before you declare Independence. In fact, the majority of nations in this world only became independent in my own lifetime, and over 90% of those became independent without a referendum.
In the event that Scotland votes Remain and the UK votes Leave, the SNP government which I hope and expect again to see at Holyrood should immediately make a Declaration of Independence to maintain the individual citizenry rights of Scots to EU citizenship. This is perfectly legal in international law and will, beyond any doubt, be welcomed by the large majority of states of the European Union who will welcome the decision of Scots to remain members.
As somebody who worked professionally for nearly four years on EU enlargement, it always scunners me that it is so little understood that the entire political mood and dynamic of the EU is expansionist. It seeks as a matter of principle to incorporate all Europeans. That is why Romania and Bulgaria were accepted with an analysis everyone knew to be farcical that they conformed to the acquis communitaire. The departure of any country, even the awkward England and Wales, will be seen as a tragedy and the adherence of Scotland will be a matter of rejoicing. Even Spain will be reconciled because the circumstance of the UK leaving the EU gives a plausible unique factor that is not a precedent for Catalonia.
Within the SNP, perhaps understandably the focus tends to be on the internal UK constitutional and political scene. This is actually an error. The Independence of any Nation is above all a matter of international law, and the test of Independence is recognition of the world’s other states and acceptance into international institutions, above all the United Nations. The success of a Declaration of Independence will rest in its acceptance in Brussels and New York, not its acceptance in Westminster.
Cameron will get nothing substantive from his EU renegotiation. He is not liked by other European leaders. Eastern Europeans, in particular, can recognise a snob who looks down his nose at them when they see one. I speak from certain knowledge – more than one Eastern European minister involved has told me so. It shows how low Cameron has sunk, that a minute circulating yesterday in the Cabinet Office described the atmosphere in the immediate aftermath of the Paris attacks as an “opportunity” to gain concessions on freedom of movement.
There is no gamechanger coming from Cameron’s “renegotiation” that will materially affect the dynamics of the EU referendum campaign, and opinion polls indicate that the UK leaving and Scotland voting to remain is a very probable outcome. The Scottish government should be starting now to make preparations for declaring Independence immediately in the event of such a result. Top priority in those preparations should be discussions in Brussels and EU capitals with all EU states to prepare them for such an event and garner discreet assurances. The Scottish Government is of course prohibited from such lobbying, but the SNP is not. I for one will offer my services without charge.