Alex Salmond has apparently been swanning along thinking that if the Scottish people (however that is defined) were one day to vote in favour of independence, then Scotland would, the very next day after the gaining of Sovereign Independent Statehood, automatically become the 28th. Member of the European Union (or 29th. if Flanders or Wallonia beats them to it), in defiance of the rules of customary international law and recent precedents. Instead the Kingdom or Republic or Parish Council of Scotland would have to make an application to the European Union for membership, just as the likes of Slovenia, Croatia, Latvia and Romania have had to do in recent years.

This is, in part, because the new state of Scotland would not be the successor state in customary international law to the United Kingdom of Great Britain and Northern Ireland: that lot would fall to whatever “England, Wales and Northern Ireland” then chose to call itself. Not being a successor state means you have to start from new: applications to join the UN, NATO (though whether the Socialist SNP would want to be a member of the latter is a moot point), and every other international organisation would also be necessary as would accession to a vast number of international treaties.

This particular truth, concerning which the SNP has either remained in ignorance these past thirty-five years or chosen deliberately to mislead the people of Scotland, has now been spelt out by one Joe Borg, the EU Fisheries Commissioner, in an interview with the Scotsman (HERE) in which he said:

“On the issue concerning Scotland’s independence, that’s not my competence to assess or to evaluate but if, for one moment, we were to assume that Scotland gained independence and therefore is eligible as a new member state for the European Union, I would see that, legally speaking, the continuation of the membership would remain with the rest of the UK – less Scotland. And, therefore, Scotland, as a newly independent state, would have to apply for membership.”

Mr. Borg’s statement is no more and no less than a brief but wholly accurate statement of the position of a newly independent Scotland in well-settled customary international law. According to his profile on the EU website Mr. Borg has held various academic posts at the University of Malta specialising in Company Law, Industrial Law and European Law. He also held various posts as legal adviser to companies and corporate bodies in Malta and abroad and, in 1995, he was the main author and drafter of the Malta Companies Act, so it may be thought that he is well-placed to know what the law is on this matter.

What is, by the by, rather interesting in all this is that it is the Fisheries Commissioner who seems to have taken an interest in the legal status of Scotland after Independence and its relationship to the EU. This is surely no mere accident or coincidence: since one of the things Salmond has vowed to get his hands on is control of Scottish waters and therefore of Scottish fisheries, presumably with a view to excluding non-Scottish fishermen therefrom, the EU Fisheries Commissioner might well be expected to take a considerable interest in Scotland’s status after independence. As an independent state Scotland would be lawfully entitled to exclude whomsoever it wishes from its waters but as an EU member they will not be able to do so under the Common Fisheries Policy (and if Salmond thinks he will be allowed into the EU without surrendering those fisheries to the CFP, then he needs to have a quiet chat with his psychiatrist), so the interest of Mr. Borg and his department in this issue is not one of idle curiosity, you may think. But I digress.

Since Independence must mean that, as a matter of law, Scotland will start off outside the EU, it is no surprise that Salmond has chosen to misrepresent the position, for to tell Scotland the truth would inevitably frighten yet more Scots off the whole idea:

“Commissioner Borg makes it clear that the issue is not within his competence to assess as an individual. In response to several European parliamentary questions on the matter, the European Commission has quite deliberately and properly not given that answer, which is its official position.”

“The reality is very clear, and was expressed by the late Robin Cook, when foreign secretary, in his statement that an independent Scotland would remain a member of the EU: ‘It’s in the nature of the European Union, it welcomes all comers and Scotland would be a member’.”

“When we have recently welcomed Romania and Bulgaria into full EU membership, how could it be otherwise for resource-rich Scotland?”

Robin Cook was, I am afraid (and not for the first time, either) talking through his hat. And Mr. Salmond mentions the case of Bulgaria and Romania. They, of course, had to apply to join the EU.

There are a number of other flies in the ointment, as you might expect.

In theory England, Wales and Ireland as the successor state might veto Scotland’s entry into the EU: indeed this ought to be pointed out to the Scottish people as being a possibility to remind them of the risk they are running by opting for independence.

Then there is the little matter of the obligation that new members of the EU undertake before having their application approved which is to join the Euro and The Stability and Growth Pact (with all the constraints to fiscal and economic policy that involves). I wonder if Mr. Salmond has mentioned this little matter to the people of Scotland. I doubt it, since the Scottish people might think that joining that particular racket was a step too far. And of course Scotland could only join the Euro after several years of sorting out its fiscal affairs sufficiently to squeeze itself into the strait jacket that is required for membership of the Euro, a process which invariably requires swingeing cuts in public spending which may not appeal exactly to a nation which has become wedded to its status as a handout junkie under the Barnett formula.

And, as the Scotsman helpfully points out, there is also the little matter of the referendum which the French people have been promised on any further admissions to the EU: though designed to flush the Turkish application down the pan, France could hardly not have such a referendum on a Scotland or a Flanders joining the EU as that would look just a bit odd to the Turks. Imagine that, the humiliation of having to ask the French ever so nicely if you can join the club. And, of course, if Sarkozy happened to be going through a spectacular moment of unpopularity, the French might, out of sheer spite, say ‘Non’.

The final and supreme irony is, of course that the moment Scotland is allowed to join the EU, it will cease to have any real independence anyway, given the nature of the Constitution Mark II to which Blair and Brown have signed us up.

The only way for this to be cleared up is for Mr. Salmond to obtain and publish in full the opinion of a leading International Lawyer. That way the awful truth will then dawn on the people of Scotland.

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