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Thursday, 19 July 2012

More on Scotland and NATO–the Vienna Convention

I offer my understanding of the Vienna Convention on Succession of States in respect of Treaties, based on help and advice from contacts. I claim no legal or academic basis for my understanding and I am happy to consider any other interpretations from experts or laymen and women. Given the fact that polarised political opinion, advised by different lawyers and academics – who somehow often manage to reflect the prejudices of their paymasters – will differ wildly on this,  the lay voter has to somehow try to form an opinion based on competing claims – that’s democracy!

Vienna Convention on Succession of States in respect of Treaties – my comment.

Article 9 should not be a concern, either in terms of NATO membership or EU membership, as it only concerns cases where a successor state unilaterally declares treaties to continue in force.

Obligations and rights in terms of treaties of a predecessor state that are in force at the time of succession do not become obligations and rights of a successor state or other states parties merely because a successor state unilaterally declares that they do.

What this means is that if Scotland was considered merely by itself to be a successor state to the United Kingdom without any sort of domestic or international recognition of it being a successor state – say by rUK (the NATO leadership has no say in this, neither do other NATO member countries) - then it would not inherit treaty obligations and rights.

I wrote in my last blog: "the possibility that Scotland would be bound to NATO obligations under article 34(1) but could be turfed out under article 9."

I now think this may be wrong, because Scotland, at the advent of independence, either inherits treaty obligations and rights (ie. a NATO member from the beginning) or does not (is not a NATO member at all).

The NATO treaty is very short and has no provisions  - like the EU treaties - for expelling a member state. If Scotland inherits the treaty rights and obligations and thus is in NATO from day one, it cannot be pushed out.

Article 13 of NATO Treaty:  "After the Treaty has been in force for twenty years, any Party may cease to be a Party one year after its notice of denunciation has been given to the Government of the United States of America, which will inform the Governments of the other Parties of the deposit of each notice of denunciation."

Of course, any state can just repudiate its treaty obligation and withdraw unilaterally.

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