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.

What the SNP says about defence

From the SNP website - Policy on defence

All of the text below is verbatim from SNP.org – the bold and red highlighting is mine.

The SNP wants Scotland to be a normal country making its own decisions about defence and peacekeeping. Only when priorities are set in Scotland can we prevent our brave servicemen and women being ordered into illegal conflicts. The historic regiments of Scotland have been destroyed through amalgamation and downsizing; an independent Scotland will redress this.

A Scottish Defence Service

The priority of the Scottish Defence Services (SDS), in partnership with Scotland’s neighbours and allies, will be to safeguard our land, sea and air space. The SDS will initially be equipped with Scotland’s negotiated share of UK defence resources. Service and pension conditions will be at least equal to those of the UK forces.

The SDS will be a professional force supported by reserve forces with employment opportunities open to everyone meeting the appropriate standard. MoD civilian support personnel employed in Scotland at Independence will have the opportunity to remain in the Scottish MoD or Scottish civil service. Scotland will maintain active defence commitments with its friends and allies through the United Nations, European Union and Partnership for Peace.

No to Nuclear

The SNP reaffirms that no nuclear weapons will be based on independent Scottish soil.

An independent SNP government will not be part of a nuclear-based commitment such as NATO.

SNP priorities in defence are that:

• Defence policy should be made in Scotland’s national Parliament.

• Scotland’s armed services should be well remunerated, equipped and trained.

• Historic regiments will be re-established as part of the SDS.

• Military facilities, including strategic airforce stations, should not be downsized at the present time.

• Nuclear weapons will be banished from Scotland forever.

• Counter terrorism provision will be enhanced, and plans will include elements of the regular and reserve SDS as part of a co-ordinated strategy.

• Military practice will be reviewed to balance the necessity of training against the disturbance to communities.

 

A fair deal for our soldiers and their families

Our soldiers and their families deserve to be treated with respect, both during and after service. Bereaved families should not have to wait years to lay loved ones to rest, or to find out the circumstances surrounding the deaths.

The Scottish Government will continue to work with the UK Government to find a way to allow military inquests to be heard in Scotland requiring changes to current legislation. No family should have to wait 3 years to put loved ones to rest, and by moving inquests to Scotland, we can remove current backlogs in the system.