Rolling Over Scotland

Craig DalzellThis week saw the publication of the 11th paper in the series of the Building A New Scotland Independence White Papers by the Scottish Government, this time looking at the defence and foreign affairs and the policies that the current SNP/Green Scottish Government would advocate should they form the Government of that independence Scotland.The paper was recently described by Alyn Smith as a sign that the Government had “done its homework when it comes to foreign policy and security”. Unfortunately, he is very far from the mark on that. The paper instead shows a profound ignorance about the process of becoming an independent state and a serious contempt for the internal party democracies of the parties involved.I had a very strong hunch about what this paper would say about some aspects of defence – particularly around the NATO question and the issue of nuclear weapons in Scotland. Since shifting policy from anti- to pro-NATO, the SNP members most in support of that change (people including Angus Robertson who heads the White Papers) have been persistent in pushing against the boundaries of public support and member support when it comes to this sector. So it came as no surprise to me on Monday to discover that they had been at it again and had unilaterally ditched the Scottish Government’s policy that an independent Scotland would sign the Treaty on the Prohibition of Nuclear Weapons (TPNW) in favour of reverting to the 2014 Scotland’s Future position of Scotland merely removing the UK’s permanent basing of nuclear weapons from Faslane and Coulport but otherwise being an active and engaged member of NATO’s nuclear weapons policies.For the avoidance of doubt, this would allow “nuke-free” Scotland to aid in the development and deployment of nuclear weapons, would allow Scottish ports to “temporarily” berth NATO weapons (such as by allowing nuclear armed aircraft to layover and refuel at Scottish Government owned Prestwick airport) and could allow, for example, an rUK nuclear armed submarine to launch its payload from Scottish waters. Alyn Smith himself attempted this exact same backsliding of policy in 2022 only to “reverse” his position when called out on it. I’d invite Smith, and Angus Robertson for that matter, to do the same in response to this article and to recommit themselves, their party and the Scottish Government to joining the 93 nations which have declared that nuclear weapons are illegal and shall not be permitted in our territory at all. That or to formally and publicly withdraw their names from the ICAN pledge to support TPNW that they and many of their colleagues signed.But while this is the most serious error in the latest White Paper, it’s not the only one. Robertson attempted to defend the dropping of TPNW by saying that the paper only considered the international treaties that Scotland would “inherit” from the UK when we became independent (and thus we would join the older, weaker and pro-NATO Non-Proliferation Treaty rather than the more comprehensive TPNW). The fact that the white paper itself discusses other treaties that an independent Scotland could potentially join but which the UK has not yet joined appeared to completely sail past this excuse.Regardless of that, that attitude is, as I say, profoundly ignorant of the process that Scotland will undertake as it becomes independent. It is more than likely that an independent Scotland will not simply and automatically roll over treaties that we’ve been a member of as part of the UK and it is equally likely that in many cases we would not want to roll those treaties over even if offered.I’ve been immersed in the legalities and procedures of separating states for many years now (going back to my 2016 paper for Common Weal Claiming Scotland’s Assets on the topic though my 2022 paper Parting Ways is perhaps slightly more appropriate to this discussion). It is important to understand that the method by which a state divides into two or more states has important ramifications when it comes to international treaties. There are broadly two ways it can happen.The first is a Dissolution. One state ceases to exist and two or more states are born. These new states take new legal identities, possibly new names and flags too. All treaties that applied to the old state are voided and each of the new states must create its own suite of new arrangements. This is essentially the process that occurred when Czechoslovakia dissolved into Czechia and the Republic of Slovakia.The second is a Separation. One or more states remove themselves from the old state and starts a new identity similar to the news states after a Dissolution but one state retains the old identity and becomes a “Continuing State” in the eyes of the various treaties that the old state was party to. The Continuing State is usually (though not always) the largest remaining fragment but it is almost always the most politically powerful and often (though, again, not always) the fragment that contains the capital city of the old state. The Continuing State often retains the same name and flag at the old state or at least something that links itself to its previous identity. A good example occurred in 1927 when the United Kingdom of Great Britain and Ireland became the United Kingdom of Great Britain and Northern Ireland, though an example of the most populous state NOT becoming the Continuing State after a Separation came in 1947 with the independence of India from the United Kingdom of Great Britain and Northern Ireland (which speaks largely to the lack of political power of colonies despite their population).It is almost certain that Scottish Independence will result in a Separation rather than a Dissolution. The legal state currently identified as the UK will retain itself after Scotland leaves (despite the Union of the Kingdoms being dissolved and only one of the remaining nations within the UK at that point actually being Kingdoms). It is almost certain that Scotland will wish to offer to support the UK retaining that Continuing State status – as it would mean that the remaining UK (rUK) would retain its permanent seat on the UN Security Council, would retain ownership of the UK’s national debt, and would retain certain obligations such as, in the absence of agreement to the contrary, payment of state pensions to people who had accrued National Insurance contributions to the old state. Those are all obligations that would be important to the rUK (perhaps less so for the latter, though that’s for another time) and so Scotland holds a great deal of power in negotiations to support rUK’s Continuing State claim. This offer would be contingent on the rUK remaining reasonable during the other aspects of negotiations.The “price” that we’d pay for that is that we would not have automatic membership of existing treaties and international deals but, as I say, that works to our advantage too. Some of those deals will be relatively simple to “roll over” and adjust – especially if they affected most Scotland anyway or didn’t materially affect things like trade. Scotland joining organisations like the World Bank or treaties like TPNW will be more procedural than diplomatic. You ask to join, you agree the terms, you pay your dues, you pull up a chair.Trade deals are different. Many trade deals agree tariffs on imports and exports based on the volume of trade between the two parties. Imagine a trade deal the UK made with, say, New Zealand on lamb imports. It might say something like (and this is a highly simplified example, but bear with it) “New Zealand may import 50,000 tonnes of lamb per year tariff free, may import a further 50,000 with a 5% tariff and will pay 15% on each tonne above that”. Why would Scotland wish to automatically join this treaty? That New Zealand lamb is currently spread across the entire UK and so, to rough approximation, it means that Scotland could expect to see imports of 4,000 tonnes of tariff free lamb on our supermarket shelves competing with our own domestic produce. If we rolled over that deal, it would suddenly increase to 50,000 tonnes and risks completely flooding our market and doing untold damage to our agricultural sector.Similarly, why would an independent Scotland wish to automatically “roll over” the UK’s Brexit Deal. The fact that the Scottish Government currently opposes that deal notwithstanding, it makes absolutely zero sense to adopt a treaty that contains provision on how an independent Scotland should deal with its non-existent land border between Ireland and Northern Ireland.The White Paper mentions absolutely none of this despite it being fundamental to the process of independence and much of it appears to simply have been copy/pasted from the 2014 Scotland’s Future White Paper regardless of significant developments that have happened to the UK and internationally since then (developments including Brexit and TPNW). There is also a significant hint that the 2018 Sustainable Growth Commission is still in charge of thinking within the Scottish Government and that was a plan that included the explicit outsourcing of Scotland’s civic responsibilities for the rUK to continue to run for a “transitional or extended period” under its plans for an “Annual Solidarity Payment”.In short, rather than this report having “done its homework” it is instead one that has passed off its homework from the previous class without having read up on what has been learned since then and even going so far as to turn down efforts to tutor them and bring them up to the present. There has been significant anger about the dropping of TPNW without there being a consultation with party members first and I fully expect to see the same level of anger if this plan results in Scottish independence finding itself in the position of “rolling over” all of the policies of the UK that we say we’re trying to break away from simply because the Scottish Government couldn’t be bothered to actually try to think about the kind of new Scotland they say they want to build.