Choosing the right article

Tweet One of the more persistent lines taken by opponents of Scottish independence is that an independent Scotland would find itself outside the EU and have to apply for membership as a new state.  Some of those using the argument go further and say that other countries (they usually cite Spain) would then veto any Scottish application.  The Spanish government takes much the same line in respect of Catalonia, only rather more honestly tells the Catalans that it might decide to veto their application itself, rather than shifting the potential blame onto some other state.  There seems to be little doubt that, if Scottish (or Catalan) membership depends on Article 49 of the treaty, then the legal argument for that position is probably correct.

The SNP and the Scottish Government argue, on the other hand, that the situation could be covered by Article 48 of the treaty, which would make the whole process much simpler, and need not require a period of being outside before readmission.  There is no direct precedent for such a situation, so the question of which route would apply will not be finally established unless and until one or other country actually votes for independence.

There was a report earlier this week on some work done by an academic at Oxford University on the subject, which in essence came down on the side of the Scottish Government’s interpretation.  Whilst recognising that there is no precedent, and no specific provision in the treaty to handle such a situation, which always leaves an element of doubt, the professor concluded:

“Despite assertions to the contrary from UK lawyers, EU lawyers and EU officials, any future independent Scotland's EU membership should be assured, and its transition from EU membership (as a) part of the UK, to EU membership (as an) independent Scotland relatively smooth and straightforward.”

Interestingly, she drew a parallel with the reunification of Germany, where a state which was a member effectively enlarged itself by taking in territory and population previously outside the Union.  This was dealt with on a very pragmatic basis, and it is reasonable to ask why Scottish or Catalan independence would be treated any differently, particularly given the EU’s history of seeking to expand. 

I can accept that the other member states would have the potential to make the negotiations difficult and protracted either way if they wanted to, but what ‘Better Together’ have failed to explain is why they would want to.  It’s clear why they want to use the threat of doing so in order to deter people choosing independence, but what exactly would be their motivation for driving an area of territory and millions of people out of the EU once the decision had been taken?  Spite?  Revenge?

If Scotland or Catalonia decides to opt for independence in one or other of this autumn’s referendums, is it really credible that the UK or Spain would then deliberately seek to make their lives difficult for such base motives?  I don’t find that in the least bit credible.