13 May 2013

"Surly lodgers turned good neighbours" pay the rent.

An elementary proposition: the first act of a surly lodger turned good neighbour is not to bugger off leaving your share of the rent unpaid.  

One of the Better Together campaign's most boring strategies in this campaign so far has been to play international law and politics off against one another. Any legal uncertainties or ambiguities, particularly in the notoriously ambiguous, compromising political regime of international and European law, are persistently depicted as damaging sources of uncertainty, undermining the pro-independence argument. Where are your cast-iron guarantees? Where's your legal evidence, Mr Salmond, that all will be well and that everything you promise will definitely, unerringly, absolutely come true? 

In order to be effective, this rhetoric is obliged to ignore the reality of contemporary diplomacy, which is marked by negotiation and political accommodation. The European Union is not a court of law, it is not bound over blindly to apply its governing documents, any more than parliament is obliged to leave the statute book unaltered in the United Kingdom.  Public international law isn't some neat book of binding rules, but an evolving and often inconsistent mixter-maxter of precedents and treaties. That is not to say that the laws there are aren't important. The law of the sea, for example, will be critical when it comes to negotiations about the scope of a sovereign Scotland's territorial waters, with significant implications for the north sea sector, the distribution of oil reserves (and of course, the weighty and consequential question of the sovereignty over the strategic isle of Rockall).

If Scotland is to become independent after 2014, negotiations will be critical, and it is in the nature of these bodies of law not to have all of the answers. It is not as if a 300 year old Union disentangles itself every month. That is the best answer, the only real answer, which independence supporters can offer to pro-Union politicians, and their tactical, obtuse refusals to recognise this basic reality.  I recognise that this is frustrating, and doesn't exactly answer the charge of uncertainty.  But it is an uncertainty which cannot be eliminated, so it cannot be avoided

This weekend, we heard in the Sun from our old friend Matt Qvortrup. His "gamechanger" argument, essentially, is that if you examine the precedents of countries breaking up into smaller units, the successor state takes the whole burden of the accumulated national debt, while the "breakaway" state steps onto the world stage, without a single debt blotting her balance book.  As you may recall, the UK government insists as a matter of international law that Scotland would be a new state, and only the rUK would be the successor to the UK's current store of treaties and the like, including Britain's EU membership and its terms. Qvortrup contends that this legal logic hoists them on their own petard, meaning that an independent Scotland could depart in good conscience, without accepting any share of the UK's national debt.  It isn't clear whether Dr Qvortrup considers this primarily an historical or a legal argument, but whatever else it is, it is a thoroughly impractical one.

Understandably, several pro-independence folk saw this as a marvellous opportunity to beat Better Together supporters at their own parlour game. We should avoid the temptation. Scotland "could" break up Britain and accept no share of our accumulated national debt, in the same sense that the EU "could" cold-shoulder an independent Scotland. Could, but probably wont, and shouldn't. 

And that's the critical point. The uncertainties of international law cuts both ways, throwing up uncertainties for both pro-independence campaigners, and those supporting the Union.  Salmond's earlier missteps around an independent Scotland's legal status in the European Union should have taught us that the trick here isn't to ape the dishonest certainties peddled by the UK Government and its supporters. We can't win that game, and more importantly, perhaps, they aren't true.  And, after negotiating a fair distribution of assets and liabilities, a surly lodger turned good neighbour ought to pay his debts.

Talk of post-independence negotiations are important in a couple of senses.  The first, and most obvious, is that any agreement cut with the remaining parts of the United Kingdom will exert significant influence on the sort of independent Scotland we see after a Yes vote, and we have plenty of big-ticket items to discuss, from transitional arrangements, to shared assets and liabilities, security cooperation and citizenship. So much is obvious. 

Secondly, how we talk about those negotiations also important for setting the tone of the campaign and the sort of independence we want to promote. The SNP have gone out of their way to accentuate the positive, to sketch images of friendly future relations with the rUK, sharing a currency, cheerfully cooperating when it is in the national interest, cultivating a social union of like-minded states, with a shared island, and language and traditions. For gradualist nationalists and democrats, the concept of "UDI" elicits cold sweats.  As a serious-minded account of what Scotland can and ought to do if we vote Yes in 2014, Qvortrup's latest intervention on national debt is fantastical and risks leading us down a self-defeating rhetorical gulch.  

Picking your neighbour's pocket isn't a good start to an abiding and friendly social union.  Evident glee at the idea of doing so recalls the bad faith politics of the playground, not the cooperative vision of Scotland the Good Neighbour which the SNP has been pains to cultivate.  


  1. Picking your neighbour's pocket isn't a good start to an abiding and friendly social union. "
    THAt seems to be what ruk are proposing with the "assets are ours" declaration .

    do you suggest the SNP dont point out the logic of westminster`s stance

  2. If it does come to negotiations about the break up of the UK, I'd hope that they can be conducted in the spirit of trying to be fair to all parties. That said, even the best intentioned negotiations don't work like this all the time: there's always a bit of sabre rattling and threat at some stage. I don't see any particular problem in the pro-Independence side dropping the occasional reminder that if the rUK wants to cut up rough, Scotland can also play nasty. (Particularly when, if we're negotiating with a Tory party trying to pick up English UKIP votes, they'll have absolutely no reason to be seen to be soft on Scotland.)

  3. "Salmond's earlier missteps around an independent Scotland's legal status in the European Union"

    "missteps" ho ho!

    These issues are complicated and open to question and interpretation, but when you start with pretending that you have sought legal advice when you haven't (as Eck did) you lose the benefit of any doubt that is going.

    1. Legal advice comes in various formats,and he did ask about the legalities,but not in the formal manner.The question is whether Scotland will be regarded as a successor state or a new state.If a new state then all is there to be discussed,and addressed,but as most of us believe we will be a successor state,then we inherit all treaties and agreements,no exceptions,debts and assets.

  4. I'm not saying that Qvortrup didn't overstate his case, but isn't it true that the rUK's burning desire to be designated sole successor state to the UK would be worth quite a lot in the independence negotiations (potentially as much as Scotland's share of the national debt)?

  5. "As you may recall, the UK government insists as a matter of international law that Scotland would be a new state, and only the rUK would be the successor to the UK's current store of treaties and the like, including Britain's EU membership and its terms."

    Under the Vienna Convention Scotland would inherit the treaties but then again only Bosnia, Croatia, Cyprus, Czech Republic, Estonia, Moldova, Montenegro, Serbia, Slovakia, Slovenia, Macedonia and Ukraine have signed the treaty in Europe.

    Do you know what part of international law the UK based their opinion on that Scotland would inherit no treaties or is this just scaremongering on their part because there are no definite laws about it?

    There are two ways the post-independence negotiations can go to when considering assets and liabilities. Scotland takes no debt and no assets or Scotland takes its share of the UK's debt and its share of the UK assets.

    Qvortrup's intervention isn't "fantastical" as it's simply stating one logical end-point to the negotiations. Is it any more fantastical than the UK government's assertion that Scotland will inherit no treaties?