EU Reactions to Kosovo’s Independence: The Lessons for Scotland
Simon James Honorary Senior Research Fellow, The Constitution Unit August 2008 [Note on references: in view of the wide range of international references used in this paper, where helpful to a UK-based audience the city or country of origin of the publication is given. References to Reuters, Agence France-Presse, etc are to their wire services unless otherwise stated.] Kosovo’s declaration of independence on 17 February 2008 was an encouraging precedent for the Scottish National Party. The birth of another small state in Europe, much smaller than Scotland in area and population, appears as a distant but useful example. Certainly the SNP members of the European Parliament were in no doubt, issuing a joint declaration with Plaid Cymru and with Basque and Catalan separatists that hailed Kosovo’s independence as an “historic event which underlines the rights of all European nations to decide freely their own futures, and which demonstrates that this right is an essential democratic principle of the European Union” (Kosova – Independence declaration welcomed, European Free Alliance group in the European Parliament Press Release, Strasbourg, 19 February 2008). However, the diplomatic manoeuvrings between European Union members over recognition of the new state have more ominous implications for nations that break away from larger states. Put simply, the issue is this. If Scotland leaves the United Kingdom, it automatically leaves the European Union. It can immediately apply to rejoin. However, the Kosovo episode has shown that five EU states, most of them in the Balkans, who have significant ethnic minorities within their borders, are scared of the precedent that might be set by allowing a small nation to break free from its parent state. They have refused to recognise the independence of Kosovo, and in some cases are lobbying other countries to withhold recognition as well. For the same reason they might seriously contemplate blocking Scotland's re-admission to the European Union. This paper is most definitely not a comparison of Scotland and Kosovo, whose circumstances are profoundly different. Rather, it is a study of how some EU member states have reacted to Kosovo’s declaration of independence, and the implications that might have for the aspirations of the Scottish National Party to lead Scotland to independence within the EU. Scotland's membership of the EU: the legal position (and the Quebec parallel) The Scottish National Party does not accept the premise of this paper and asserts that, if Scotland becomes independent, it will automatically remain part of the European Union. So 1
does the Scottish Government, now that the SNP is in power. Their argument is that under the Vienna Convention on State Accession in Respect of Treaties, adopted in 1978 and ratified by the necessary 15 states in 1996, Scotland would in effect automatically become a member of the European Union (Choosing Scotland's future: a national conversation: independence and responsibility in the modern world, Scottish Government, 2007, paragraph 3.19; Independence in Europe dossier, Scottish National Party press office, 28 May 1999). This paper is based on the view that the SNP’s assertions are wrong, and that Scotland would cease to be an EU member, on the following grounds: First, the claim was analysed and fairly convincingly disproved in an analysis published by the Constitution Unit in 2002 (Scottish independence: a practical guide, Jo Eric Murkens, Edinburgh University Press, 2002, especially pages 115 to 120). The key point in the argument is that the Vienna Convention does not apply if its application "would be incompatible with the object and purpose of the treaty [ in this case, the Treaty of Rome ] or would radically change the conditions for its operation”. As the analysis puts it: “…independence would be adding a new member state to the EU and this would require formal treaty changes according to the specific rules of EU accession rather than the general and vague rules of international law of succession to multilateral treaties”. The analysis cites as examples of the requirements for the Treaty to be amended the need to allocate to the new state voting rights in the Council of Ministers and seats in the European Parliament. Second, the Vienna Convention, drafted primarily if belatedly to deal with postcolonial problems, seems not generally to be accepted as " customary law" in the international field. By mid 2008 it had been approved by only 21 parties, none of them major states, and only five of which belong to the EU (http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXIII /treaty2.asp accessed 26 July 2008). It should be noted that two of the signatories are Cyprus and Slovakia who refuse to recognise Kosovo. Third, in an area in which international law is uncertain, nations are far more likely to be guided by national interest. As argued below, to judge by the experience of Kosovo's bid for independence, at least five EU countries are likely to be hostile to admitting an independent Scotland to the EU. Cyprus and Slovakia have signed the Convention but, on the evidence of their reaction to Kosovo, look likely to respond to any Scottish appeal to the Convention by adopting the argument, outlined above, that the Convention does not apply in these circumstances. Fourth, even if the Scottish Government's argument about the Vienna Convention were legally correct, in practice it would find it extremely difficult to force its way into the European Union against the wish of a sizeable number of its members (and possibly of the Commission, which may also prove hostile to the precedent set, and disruption caused, by admitting a secessionist state). This is more a matter of power politics than law, and a newly independent Scotland would have a weak hand to play.
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The same territory has been trodden in the past in Canada. A recurring issue in the long wrangle over the desire of many Quebecers to secede from Canada has been an independent Quebec’s position vis a vis the North American Free Trade Agreement (NAFTA), continued membership of which would be of considerable economic importance. Section 15 of ‘An Act Respecting the Future of Quebec’ enacted by the Quebec legislature in 1995 stated: "In accordance with the rules of international law, Quebec shall assume the obligations and enjoy the rights set forth in the relevant treaties and international conventions and agreements to which Canada or Quebec is a party on the date on which Quebec becomes a sovereign country, in particular in the North American Free Trade Agreement." This has been strongly contested by the Federal Government, which contends that Quebec would not automatically inherit membership of NAFTA but would have to apply for and negotiate entry, with the obvious danger that negotiations would fail or would lead to a worsening of terms already enjoyed by Quebec. (‘Economic Union Impossible and Access to NAFTA Arduous: The Minister of Finance Slashes at the Utopia of Separation’, Department of Finance, Canada, Ottawa, 26 September 1995, updated 11 December 2007, www.fin.gc.ca/news95/95-073e.html, accessed 13 March 2008). The matter has twice been investigated in some depth by enquiries set up by the Quebec authorities, the Bélanger-Campeau Commission of 1991 and an update of that earlier study by the Quebec international public law expert J Maurice Arbour in 2001. Both found that the ‘Act Respecting the Future of Quebec’ mis-stated international law. Arbour’s conclusions were, in summary, that Quebec would not automatically accede to NAFTA under the Vienna Convention because the three members states (Canada, the United States and Mexico) had not ratified the Convention. Arbour therefore investigated in some depth the traditional practices of international customary law, which he found actually confirmed the principle that seceding states did not accede to the treaties to which their ‘parent’ states had been parties (a slightly different line of analysis from Murkens’ study summarized above, but leading to the same conclusion). Quebec could certainly apply to join NAFTA but would have to negotiate membership and it was possible that one of the other members states would refuse to agree terms or to accept Quebec as a NAFTA member. (J Maurice Arbour, ‘Access by Québec to external markets and to Canada's economic space’, Secretariat of the Commission on the Political and Constitutional Future of Québec, November 2001. The summary of this paper is available at http://www.saic.gouv.qc.ca/publications/documents_inst_const/BC-02AMauriceArbour_en.pdf. The full version of the paper, previously available only in French, now appears to have been removed from this website.) Implicitly, the Scottish Government seems to have started to recognise the problems. Its 2007 White Paper says: "An independent Scotland would continue in the European Union and bear the burdens and fulfil the responsibilities of membership.” But it continues: 3
“Following negotiations on the detailed terms of membership, Scotland would be in a similar position to other European Union member states of a similar size." Implicitly, this recognises the problems. First, if Scottish membership of the EU were to continue unbroken, it would not need to renegotiate the terms of membership. Second, the need to negotiate must accept the possibility of those negotiations failing. Other EU countries have no obvious incentive to agree to granting Scotland a more generous budget rebate, a more generous fisheries deal, or a better deal from structural funds. Indeed, countries hostile to secessionist states would have a strong incentive to offer Scotland a worse deal. Beyond question, Scotland fulfils the criteria required of countries seeking to join the EU. These have been explicitly set out in the course of the EU’s recent expansion eastwards: fulfilment of the normal requirements of a democratic state (the “Copenhagen criteria"), adoption of EU law and the existence of administrative and judicial capacities to implement it (the “Madrid criteria”). Scotland meets these already -- indeed, the UK applies EU law more conscientiously than many other EU countries. Certain new structures and procedures would be needed – for instance, creation of a Scottish Central Bank – but as the Constitution Unit’s study referred to earlier has found, there seems to be no substantial technical barrier to Scotland’s admission to the EU (Murkens, pp. 141-4). Therefore any obstacles to Scotland’s admission are purely political. Under article 237 of the Treaty of Rome, admission of a new member state requires unanimous agreement by the Council of Ministers and separate ratification by each member state, and during the eastwards expansion of the EU this requirement has been scrupulously observed. It is also this requirement that has put the brakes on the EU 's further expansion eastwards in the past few years. The reluctance of certain member states to take into membership more Balkan states, let alone Turkey or Ukraine, shows that article 237 is no mere formality. Here lies Scotland's problem. For the first time, a constituent part of an EU member state would be breaking away from a member state and seeking to remain within the Union. This could set an encouraging precedent to nationalist minorities within other EU countries. One of the greatest obstacles faced by separatist movements is their electorates’ fear of becoming a small, isolated state unable to make its economic way. If a place in the EU can be assured, independence becomes far more attractive to the voters. Hence the Scottish Nationalist Party’s progression from opposition to EU membership in the 1970s to embracing the concept of " Scotland in Europe" in more recent times. Consequently, any EU member state fearing an internal secessionist movement will be wary of allowing Scotland to set a precedent. The relevance of Kosovo The circumstances leading to Kosovo’s unilateral declaration of independence in February 2008 are not relevant to this paper. The key point is that, under the 1974 Yugoslav Constitution, Kosovo was not one of the six constituent republics of the federal state of Yugoslavia, but an autonomous province within one of those republics, Serbia. And so it
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remained after the break-up of Yugoslavia in 1991. When Milosevic, playing the nationalist card for domestic Serbian political reasons, withdrew Kosovo's autonomy and increasingly curtailed the linguistic and cultural freedoms of its majority Albanian population, there followed protest, repression, resistance, violence on both sides, and eventually the 1999 NATO intervention. Kosovo then became in effect a UN protectorate, governed under UN Security Council Resolution 1244, but in international law still part of Serbia. Protracted negotiations between Serbia and the provisional government of Kosovo failed, and the UN mediator Martti Ahtisaari in 2007 recommended, in effect, a supervised independence with guarantees for the Serb minority (M Ahtisaari, Comprehensive Proposal for the Kosovo Status Settlement, UNOSEK, Vienna, 2 February 2007). Serbia refused, further mediation failed, and in February 2008 Kosovo declared its independence and was recognised by most EU member states. But not all. A significant group of EU member states were strongly opposed in principle to recognizing any secessionist state. It is important to understand their motivation. Five countries objected outright: Spain is the one declared opponent in Western Europe. The obvious reason is the active separatist movement in the Basque region (where an extreme fringe appears recently to have resumed sporadic violence). Certainly, in a statement released to the newspaper Gara in January 2008, the Basque separatist group ETA cited the examples of Kosovo and Scotland to argue that its aspiration “is not Utopia” (ETA to follow Kosovo example, B92 [Serbia], 5 January 2008). Many Spaniards also worry about the precedent that secession in other countries will have upon the overall unity of Spain. The pattern of asymmetric devolution created in the post-Franco democracy is now under strain, with demands for ever-greater devolution from certain of the autonomous regions -- notably Catalonia and Andalusia, with Galicia and Valencia not far behind (E.g. "The Spanish centrifuge", The Economist, 3 March 2007). Trying hard to be communautaire, the Spanish government for a long while was notably reluctant to state its opposition openly, relying instead on behind the scenes diplomacy within the European Union – for example, a strong private warning at an EU Council of Ministers in 2006 (Spain: we will block Kosovo’s independence, EU Observer, 15 November 2006). Only in early 2008, after a year’s fruitless pressure behind closed doors, did Prime Minister Zapatero break cover to express openly his government’s strong reservations about independence for Kosovo, alluding explicitly to the precedent for the Spanish regions and saying "whatever happens Spain will maintain its position…. on the future of Kosovo" (Spain, Germany seek to reconcile positions on Kosovo, Agence France-Presse English Wire, 31 January 2008; Zapatero: Spain against independence of Kosovo, Tanjug [Serbia] 1 February 2008). Which it did on the day of Kosovo’s UDI, Spanish Foreign Minister Miguel Angel Moratinos telling reporters attending a meeting of European Union foreign ministers “We will not recognise because we consider ... this does not respect international law," (Spain says won't recognise Kosovo independence, Reuters, 18 Feb 2008). As if to justify Zapatero’s fears, Basque and Catalan parties united with the Scottish and Welsh Nationalist MEPs in the joint declaration mentioned at the start of this paper, which welcomed Kosovo’s independence as a precedent for their demands. Spain has since lobbied governments in Latin America, where
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it retains considerable influence, to withhold recognition - seemingly with success (Denis MacShane, The Balkanisation of Europe, Newsweek, 7 June 2008). In contrast to Spain, Cyprus never made any secret of its opposition. In this context we are speaking effectively of the (Greek Cypriot) Republic of Cyprus, as opposed to the selfproclaimed Turkish Republic of North Cyprus, which has not been recognized by any country except Turkey since the de facto partition of the island in 1974 . In 2004 Cyprus in its entirety was admitted to the EU. However, following the rejection of a peace plan by the Greek Cypriots in a referendum in 2004, the operation of the acquis communautaire was perforce suspended in the north of the island pending re-unification and for practical purposes the (southern) Republic of Cyprus is the EU member state. It is hyper-sensitive to any political move that might be seen as conferring legitimacy or statehood upon institutions in the North, where one-eighth of the island’s population lives. Europe was therefore not surprised when Cypriot Foreign Minister Erato Kozaku-Marcoulis stated bluntly that Cyprus would never recognise Kosovo, like other opponents making a point of appealing to a wider legal principle: "We are not just afraid of setting a precedent for the island but the much wider issue of setting a precedent in international relations in general" (Cyprus refuses to recognise Kosovo's independence, Agence France-Presse, 18 February 2008 ; Christine Pirovolakis, Cyprus fears Kosovo independence will have impact at home, DPA, 29 February 2008. ) The heading of the policy statement on the website of the Cypriot Ministry of Foreign Affairs says it all: ‘Kosovo UDI legally invalid’ (http://www.mfa.gov.cy/mfa/mfa2006.nsf/All/69A4D8D7869827CBC22573F40027DB22 ?OpenDocument&highlight=kosovo accessed 19 Feb 2008). The election of a new President, Demetris Christophias, more conciliatory towards the Turks has made no difference to the issue: he too refuses to recognise Kosovo because “there are borders that should be safeguarded and territorial integrity should be respected” (New Cypriot President rules out recognising Kosovo, Agence France Presse, 13 March 2008). The opposition of Romania is attributable to the numerous minorities living within the country, notably the substantial Hungarian minority (over 6% of its total population) in Transylvania. The Romanian President, Traian Basescu, put it bluntly to a NATO meeting in January 2008: acceding to Kosovo's independence from Serbia could "create a risky precedent…. a signal which unfortunately cannot be legally justified…. what message are we sending to multi-ethnic societies, or to others that are facing ethnic issues?” (Paul Ames, Romanian president urges allies to hold off from recognition of Kosovo's independence, Associated Press, 31 January 2008). The Romanian Foreign Minister has echoed this position, although he stressed more the view that a unilateral declaration of independence would be a violation of international law (Romanian Foreign Minister urges Kosovo solution in the light of international law, Xinhua [China], 22 January 2008; Romanian participation in the UN mission to be based on a UNSC resolution, Tanjug [Serbia] , 6 February 2008). The Romanian Parliament confirmed this stance by 357 votes to 27, and Romania reacted to UDI by closing its country’s liaison office in the Kosovar capital (Zeri [Kosovo], 20 February 2008). Slovakia is moved by the same fears. According to the 2001 census some 13% of its population come from minorities, notably Hungarians who make up almost one tenth of the population. The Slovak Parliament in October 2007 adopted a resolution opposing Kosovar
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independence (supported by 123 out of 142 members present) with some deputies openly stating their fear that the Hungarian minority hoped to profit by Kosovo’s example (e.g. Slovak politicians wrestle with domestic ‘Kosovo’, Slovak Spectator, Vol 13, No 8, February 26 2007). The Slovak President has made no bones about his opposition (Gasparovic on a visit to Spain opposes full independence for Kosovo, TASR news agency [Slovakia] , 24 October 2007) and Prime Minister Robert Fico told press in Athens "It is a violation of International Law that can lead other countries with minorities to imbalance as well" (No solution, no invitation, Athens News Agency at http://www.ana.gr/ , 14 March 2008). The opposition of Greece is based partly on solidarity with Greek Cypriots, but principally because of its concerns over minorities. This may seem surprising, since it has an unusually homogeneous population (98% ethnic Greek) as a result of population exchanges following the First World War, but it is nonetheless exceptionally sensitive about minorities in the north of the country: the Turkish population in Thrace (1.3% of the national total) and the much smaller Macedonian population. Greece’s long-running objection to its northern neighbour calling itself ‘Macedonia’ is currently blocking that country’s accession to NATO, a sign that the Greek government is willing to incur considerable international odium in defence of what it sees as its national identity and interest. Five months after Kosovo’s UDI, Greece had still not recognised the new state, although its statements were diplomatically guarded: for example the statement of Foreign Minister Ms. Bakoyannis in April 2008 that ‘a new state of affairs had been created in Kosovo, and that there was ‘a long road ahead in resolving Kosovo’s status (Bakoyannis on Greek policy in the Balkans, 15 April 2008, website of the Embassy of Greece to the USA, http://www.greekembassy.org/embassy/Content/en/Article.aspx?office=15&folder=361& article=23396, accessed 29 July 2008). The Greek President subsequently warned that such issues "should be treated with particular carefulness to avoid chain reactions" (Meetings with Papoulias-Karamanlis: Slovak Prime Minister in Athens, Athens News Agency, 3 Mar 2008). Two other countries with severe reservations on the issue have, however, granted recognition. Defying expectations, Bulgaria, solicitous about relations with its neighbour Serbia, and with sizeable Turkish and other minorities, wavered initially but eventually accorded recognition under pressure from other EU countries. And the Government of the Czech Republic granted recognition, but had to overcome unexpectedly vehement opposition from the country’s President and opposition parties (Czech petitioners call on cabinet not to recognise new Kosovo, CTK [Czech Republic] , 20 March 2008; Czech Christian Democrats want govt coalition to meet on Kosovo, Czech News Agency, 25 March 2008; Jakub Antoš, Czech communists seek ban on recognizing Kosovo, Aktualne [Czech Republic] 21 April 2008). In short, there is a core of counties in the EU for whom this kind of secession is objectionable, for the inter-related reasons that it would encourage secessionist tendencies amongst their own minorities, and is contrary to international law. The second of these arguments requires examination. The ‘sanctity of frontiers’ These countries are invoking a principle to which the European Union has shown itself very much attached over the past two decades: the principle of ‘uti possidetis’ which has been
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recognized by the International Court of Justice as a general principle of international law, and which in essence holds that the existing frontiers of states remain valid unless changed by agreement between relevant parties. EU states’ attachment to this principle manifested itself clearly when the EU was confronted with the collapse of Communism in Eastern Europe and the former USSR. There was, initially, great reluctance amongst EU states to recognise the new states emerging from the fragmentation of the USSR, to the point where there were vociferous domestic protests in many EU states at the slowness to recognise Estonia, Latvia and Lithuania. Eventually there was agreement on a significant statement of principle in the ‘Declaration on Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’, adopted by the European Community Foreign Ministers at an Extraordinary EPC Ministerial Meeting at Brussels in December 1991. Amongst the criteria for recognition of new countries was ‘respect for the indivisibility of all frontiers which can only be changed by legal means and by common agreement’. EU states showed similar reluctance to recognize the states that emerged from the break-up of Yugoslavia. An international arbitration commission - the Badinter Commission – was established by the EC to formulate principles to deal with the situation. The Commission’s Opinion No. 2, issued on 11 January 1992, while recognizing the imprecision of international law in the area of recognition of new states, stated: It is well established that, whatever the circumstances, the right to selfdetermination must not involve changes to existing frontiers at the time of the independence (uti possidetis juris) except where the States concerned agree otherwise. The Commission’s Opinion No 3 of the same date stated that the boundaries of the constituent republics of Yugoslavia might: not be altered except by agreement freely arrived at…… Except when otherwise agreed, the former boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and, in particular, from the principle of uti possidetis. As a result, EC countries recognized Bosnia-Herzegovina, Croatia, Macedonia and Slovenia as separate states. However they put pressure on the fifth republic, Montenegro, to remain in a refashioned federal union with the sixth and last republic, Serbia, and it was only with great reluctance that in 2006 the EU states accepted Montenegro’s secession from this shotgun marriage. (In a last-ditch attempt, the EU negotiated a deal between the two republics for a referendum in which 55% of voters had to approve independence, which was achieved by a tiny margin.) In the interim, however, EU states had firmly drawn a line by insisting that the boundaries of the six ex-Yugoslav republics were sacrosanct, and by refusing to accept any secessionist tendencies within them. So EU countries firmly rejected the sovereignty claims put forward by the Republika Srpska within Bosnia-Herzegovina and the would-be Republic of Serbian Krajina within Croatia, and at the 1999 Rambouillet peace talks on Kosovo EU countries 8
rejected Kosovo's attempts to break away from the sovereignty of Serbia (E Hasani, Uti possidetis juris: from Rome to Kosovo, Fletcher Forum of World Affairs, Summer/Fall 2002, www.pbosnia.kentlaw.edu/symposium/resources/hasani-fletcher.htm , accessed 28 July 2008). This explains the otherwise incomprehensible fact that all of the EU countries that denied recognition to Kosovo in 2008 had granted it to the Republic of Montenegro two years earlier, despite the fact that Montenegro is geographically no larger than Kosovo, and has a quarter of its population. This attitude has strong resonance far beyond Europe. The doctrine of ‘uti possedetis’ originated in Latin America, where it was invoked after Spanish decolonisation by newly emergent countries to reduce the likelihood of border wars between them. The same principle was applied as colonial powers withdrew from Asia and Africa; a resolution of the Organisation of African Unity in 1964 asserting the principle of the stability of borders was a recognition of the dangers of war inherent in the arbitrary borders drawn by colonial powers. While this rule was surprisingly successful in avoiding conflicts between newly emergent states during the decolonisations of the 19th and 20th centuries, it can plausibly be argued that, in Africa particularly, this has been achieved at the cost of inter-ethnic strife within states because artificial borders took too little account of demographic considerations. Be that as it may, the tenacity of this doctrine goes a considerable way towards explaining Spain’s success in rallying Latin America against recognition of Kosovo, and the otherwise inexplicable failure of Asian and African states (even Islamic ones) to recognise Kosovo’s independence. From which arises a contradiction. EU countries individually and as a body have a strong attachment to the principle of the stability of borders and are most reluctant to do anything to disrupt it. Yet the recognition by most EU states of Kosovo’s independence was a highly significant breach of that principle as the EU had interpreted it since 1991, and set a glaring precedent upon which the SNP can justifiably call when demanding recognition for an independent Scotland – especially since until 1603 Scotland was incontestably an independent state with a well established international frontier. The ‘no precedent’ argument The blunt truth is that the United States and the majority of EU countries accepted Kosovo’s independence reluctantly and for entirely pragmatic reasons: there was no possibility of returning Kosovo, with its 90% Albanian ethnic population, to the control of Serbia, nor was it feasible to keep postponing resolution of Kosovo's status in the light of economic stagnation, demographic pressures and the Albanian majority's demand for independence. At the same time, these countries wanted to avoid creating a precedent that could be cited elsewhere. They squared this circle by resorting to the pragmatic argument that the circumstances of Kosovo were so unique that they could provide no a precedent. This get-out was formulated by Ahtisaari in his 2007 report to the United Nations and has frequently been repeated, for example by British and American diplomats in subsequent arguments with Russia. It was most pithily articulated by Condoleezza Rice, US Secretary of State:
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The unusual combination of factors found in the Kosovo situation – including the context of Yugoslavia’s break-up, the history of ethnic cleansing and crimes against civilians in Kosovo, and the extended period of UN administration – are not found elsewhere and therefore make Kosovo a special case. Kosovo cannot be seen as precedent for any other situation in the world today” (U.S. Recognizes Kosovo as Independent State, statement of Secretary of State Condoleezza Rice, Washington DC (Feb, 18 2008) available at http://www.state.gov/secretary/rm/2008/02/100973.htm). The British foreign secretary, David Miliband, echoing this argument, addressed the fears of countries such as Spain directly: What makes it unique is that for nine years there's been a UN protectorate within the independent country of Serbia. That does mean that this is a unique case, and I think it's not one that can be equated to the Basque issue or some of the other issues that have been raised." (Kosovo case unique says Miliband, BBC News website, http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk_politics/7252212.stm, accessed 4 August 2008). A number of EU countries took a lot of persuading to accept this. After Ahtisaari submitted his proposals for Kosovo’s supervised independence in mid 2007, there was a profound division of opinion within the EU. Quite apart from the known opponents listed above, a group of countries including Germany and Sweden were unhappy, and it took a further fruitless round of diplomatic negotiations, and warnings of trouble from the head of the UN mission in Kosovo, before the bulk of EU members accepted what seemed to have become inevitable. However, it is uncertain whether the ‘no precedent’ argument will stand up in practice. As a shrewd analysis published by the American Society for International Law has pointed out: Despite the declarations and best intentions, just saying something is "unique" may not be enough. States and commentators may need to ask why one claim of independence is purportedly unique and then consider its downstream political and legal effects. In the end, we need to keep in mind that sometimes the most effective law in politically-charged situations may be the law of unintended consequences. (Christopher J. Borgen, Kosovo’s Declaration of Independence: Self-Determination, Secession and Recognition, ASIL Insight, Vol 12, Issue 2, 29 February 2008). As Russia has repeatedly pointed out, would-be separatist territories around the world will treat it as a precedent if it suits them (e.g. Russia worried over UN plans for Kosovo independence, International Herald Tribune, May 30 2007) and beyond question the future of Kosovo was being watched with deep interest by separatist movements in, amongst other places, Kurdish northern Iraq, Trans-Dniester in northern Moldova, and Aceh and West Papua in Indonesia (Slobodan Lekic, Separatist groups keep eye on Kosovo, Associated Press, 4 June 2007). An article on the BBC website at the time of Kosovo’s UDI carried a whole series of statements:
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Regions with aspirations of independence of their own are using the Kosovo declaration as a potential precedent for them. “I salute the independence of Kosovo. No people can be forced to live under the rule of another,” said Mehmet Ali Talat, leader of the Turkish Cypriots. Kosovo is “a lesson in how to resolve conflicts of identity and membership, peacefully and democratically,” said Miren Askarate, spokeswoman for the Basque regional government in northern Spain. The chairman of the breakaway Transdniester region of Moldova, Yevgeny Shevchuk, said: “We believe that a new era started and a new system of international relations was formed the moment part of a country, based on a series of historical developments, decided to live independently, and this country can gain recognition.” (Paul Reynolds, Kosovo: To recognise or not to recognise?, BBC News website, 18 February 2008). Particularly ominous were the appeals from the leaders of two provinces seeking independence from Georgia, Abkhazia President Sergei Bagapsh and South Ossetia President Eduard Kokoity, who used Kosovo’s example to seek Russia’s recognition of their provinces' independence, which was supported by a March 2008 resolution of both houses of the Russian Parliament, passed with the tacit support of the Kremlin (Serbia warns diplomatic action will be taken against countries recognizing Kosovo, CNN, 19 February 2008; N Kulish and C Chivers, Kosovo Is Recognized but Rebuked by Others, New York Times 19 February 2008; Russian parliament asks government to consider recognizing breakaway Georgia regions, Associated Press, 21 March 2008; Duma Backs Georgia's 2 Separatist Republics, Associated Press, 21 March 2008). The Russian Government has now established official links with both, while stopping short of full recognition (Misha’s test, The Economist, 24 May 2008). While still President of Russia, Vladimir Putin prophesied of Kosovo’s independence: ”In the West, this solution will set off separatists in Europe. Look at Scotland, Catalonia and the Basque Country” (Interview in Le Figaro, 4 June 2007). And just in case it didn't, Putin went out of his way to infuriate Spain on the eve of Kosovar UDI by telling a Moscow news conference: "People don't want to live in Spain in the heart of a single state. Well, let's support them then!" (Spain protests to Russia over Putin Kosovo remarks, Agence France Presse, 15 February 2008). From the point of view of the SNP, this is not helpful. In legal terms, a respectable if contestable legal argument can be made that Scotland falls within the ‘uti possidetis’ doctrine. However, countries like Spain and Slovenia are more likely to be swayed by the real-life observation that, once one part of a country breaks away, others elsewhere will be encouraged to follow suit, with ominous implications for their own ethnic minorities. The problem of uncertainty The upshot is that, if Scotland declares independence and seeks re-admission to the EU, a minimum of five member states may well oppose its admission as a separate state. Some
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other countries that accepted the necessity of recognising Kosovo might well be reluctant to see the example replicated. In particular, France and Belgium accepted the inevitability of Kosovo's independence to avoid unrest in the Balkans, but might well be hostile to Scottish independence because of the encouragement it would offer to their own separatist movements in Corsica and Flanders respectively (The Belgian Cabinet agreed to recognise Kosovo only after several hours of argument: see Belgium to recognise Kosovo: FM , Agence France-Presse, February 18, 2008 ). The easy answer from the Scottish Government would be that, for EU governments to block Scottish membership would be irrational. But seen from the point of view of Bratislava or Nicosia, such action may appear to be very rational indeed. And appeals to rationality may be beside the point, because matters of national sentiment often have a higher emotional than rational content. Living in the milder political culture of northwest Europe, it is easy to under-rate the strength of fear and feeling in the opponent countries. For the Cypriots, the Turkish army’s presence in the north of the island since 1974 pervades every aspect of politics. Many Spaniards equate ‘separatist’ with ‘violent’ – deeply unfair to the SNP, but that is the way they see it. The attitudes of Slovakia or Romania may be more difficult to appreciate from the British Isles, because they are rooted in the drawing of boundaries after the First World War. The Treaty of Trianon left many national minorities within the boundaries of the new states, particularly Hungarian minorities in Romania, Slovakia and Serbia. Ancient history to us, but vivid current reality to them: conflict flares up regularly, particularly over issues of language and education, as witness recent rows between Slovakia and Hungary over history textbooks used in schools, and objections to a private visit by the Hungarian Prime Minister to a Hungarian-majority town in Slovakia (‘Textbook wars’, The Economist, 29 March 2008). It did not help that in both Romanian and Slovak Parliaments, the only parties to support Kosovo’s independence were those representing the Hungarian minorities (Reuters, Romania will not recognise Kosovo independence, Feb 18 2008). However regrettably, such issues form a substantial part of the prism through which these countries view the world. (There is a weary but telling joke amongst diplomats that the Balkans produces more history than can be consumed locally). If these countries’ calculation of their own self-interest - in some cases reinforced by strident nationalists within their populations – is that Scottish independence will harm their countries by encouraging their own separatists, they have one ready way of hindering it: blocking Scottish EU membership. They would not have to act, just refuse to act. If a single member country sits on its hands and refuses to approve the amendments to the Treaty of Rome that would allocate votes in the Council of Ministers to an independent Scotland, Edinburgh is powerless. 1
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There is a procedural safety valve in the EU that allows countries to voice profound opposition to a decision whilst stopping short of exercising a veto: the device of ‘constructive abstention’ by which a country abstains from supporting a decision requiring unanimity, but in a fashion that does not block the action. That procedure was used by Cyprus on 4 February 2008 to allow the EU to deploy an EU police and justice mission in Kosovo. However, countries who care profoundly about the implications that they perceive for their national interest are not likely to adopt this course unless they are subjected (as Cyprus was) to very heavy pressure from other EU member states. It seems unlikely that a Scottish declaration of independence would prompt such sympathetic action from the majority of member states.
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Even if opponent countries were persuaded not to use their vetoes, the need for Scotland to re-negotiate the terms of membership – a need accepted by the Scottish Government – would give them plenty of scope for creating terms unacceptable to Scotland. This is particularly so since the Scots would come to the negotiating table as the demandeurs, dependent on the goodwill of EU member states. There are plenty of ways in which renegotiated membership could be made very unattractive to Scotland: for example, a meagre share of EU structural funds; refusing Scotland a share of the UK budget rebate; and above all though no improvement (or even a deterioration) in the terms available under the common fisheries policy to Scottish fishermen. This last would hit the SNP cruelly in its electoral heartland. The problem for the Scottish Government lies in the uncertainty. In the event of a referendum, the electorate will want to know whether an independent Scotland would remain within the EU or not. The Scottish business community will certainly want a clear answer and to be assured, if the answer is ‘no’, whether the Scottish government has thought through an alternative commercial policy. The same will be true of workers whose jobs depend on trade with Europe. Essentially the Scottish Government has two options. The first is to seek reassurances in advance from foreign governments that they would not block an EU membership application from an independent Scotland. The obvious tactical danger is that this could provoke precisely the hostile reaction from opponent countries that the Scottish Government wants to avoid. It only takes, say, the Spanish or Slovak Prime Minister to say that he would veto Scottish membership to make life very difficult for the SNP in an independence referendum. The alternative tactic is blithe optimism: to assume (or pretend) that all will be for the best, and that the EU would never seriously contemplate refusing Scotland membership. The difficulty with that course is that people whose jobs and companies whose business depend on trade with the EU may not be satisfied with what amounts to a game of Balkan roulette.
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