How Easily Could an Independent Scotland Join the EU?

Abstract

The prospect of an independent Scotland raises many issues. This paper focusses on just one of them - the question of an independent Scotland’s EU membership. While it may have taken longer for this issue to reach the bubbling and boiling point that other issues of Scottish independence have attained - such as ownership of North Sea oil rights, or whether an independent Scotland might maintain sterling as its currency. Scotland’s EU membership has become no less contested and polarised than these other issues. This paper maintains that 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 qua part of the UK, to EU membership qua independent Scotland relatively smooth and straightforward. In other words, it would take the form of an internal enlargement of the EU using the procedure for treaty amendment in Article 48 TEU. These arguments are made on the basis of EU law itself, which, it is argued, provide all the resources necessary to assure an independent Scotland’s EU membership through EU treaty amendment, and not through a cumbersome accession process as a new member state. In particular, the values, norms and ‘special ethos’ of the EU, expressed in concepts such as EU citizenship, fundamental rights and duties of loyalty, combine to provide a reasoned justification for such internal enlargement.