Referendum on the Independence of Scotland ... - Gov.uk

Part I:
Executive summary
1. If Scotland were to become independent after the referendum planned for late 2014, it
would be with the UK’s agreement rather than by unilateral secession. In practice, its
status in international law and that of the remainder of the UK (rUK) would depend on
what arrangements the two governments made between themselves before and after
the referendum, and on whether other states accepted their positions on such matters as
continuity and succession. But there are a number of legal considerations.
2. First of all, the status of Scotland before the union of 1707 would be of little or no
relevance. In particular, the Treaty of Union, considered with or without the Acts of Union,
does not currently sound as a treaty in international law.
3. The three possible outcomes for the status of Scotland and the rUK in international law
following Scottish independence are as follows, from most to least probable.
3.1 Most likely, the rUK would be considered the continuator of the UK for all
international purposes and Scotland a new state. This has been the most common
outcome in the case of separation, as evidenced, for example, by the acceptance of
Russia as the continuator of the Union of Soviet Socialist Republics (USSR) despite
its political collapse. The fact that the rUK would retain most of the UK’s territory and
population and that its governmental institutions would continue uninterrupted would
count in its favour. So, importantly, would the acquiescence of other states in any
claim of continuity. Since the rUK would be the same state as the UK, questions of
state succession would arise only for Scotland.
3.2 Some states have dissolved entirely into new states, leaving no continuator. But
the most recent instances of this are the result either of an agreement between the
states involved, one of which might otherwise have been considered the continuator
state (Czechoslovakia), or of prolonged resistance by other successor states and
third states to a claim of continuity in circumstances of ethnic confict (the Socialist
Federal Republic of Yugoslavia). This outcome would be likely only if the UK were to
agree to it.
3.3 Reversion to a previous independent state such as the pre-1707 Scottish state
may not be excluded. But it normally depends on conditions that are absent here,
such as the unwilling subjugation of the former state. Some apparent exceptions
are illusory or are political assertions with no legal consequences. In any event, the
passage of such a long period of time would make it diffcult for Scotland to assert
identity with the pre-1707 Scottish state for legal purposes, and even if it did so that
would not affect the status of the rUK as continuing the legal personality of the UK.