Carty and Clyde - Scotland and England

London Review of International Law Advance Access published August 12, 2014
Scotland and England from a union of

parliaments to two independent
kingdoms
Anthony Carty and Mairianna Clyde*
Linda Colley, Acts of Union and Disunion (Profile Books, 2014)

Christopher A Whatley, The Scots and the Union, 2nd ed. (Edinburgh UP,
2014)
Downloaded from http://lril.oxfordjournals.org/ at LSE on February 21, 2016

James Crawford & Alan Boyle, Opinion: Referendum on the Independence of
ScotlandInternational Law Aspects (2013)
The UK Governments advisers claim that Scotland, in the event of indepen-

dence, would become a new state, while the remainder of the UK alone
would enjoy Britains international privileges. Arguing that Great Britain is
best understood as a composite state, this article explores the history of
union to show that the two kingdoms who united in 1707 may now, equally
freely, agree to separate as equals.
INTRODUCTION
With the 2014 Scottish referendum on independence in view, the UK

Government solicited an international law opinion from Professors James
Crawford and Alan Boyle.1 In their report, the two international lawyers
insist on the irrelevance today of the 1707 Treaty of Union between Scotland
and England, and of the associated Acts of Union in both countries. They argue
that, despite the wording of Article 1 of the Treatyexplicitly uniting two
kingdoms into onea Yes vote in the Referendum would lead to the
* Anthony Carty is Sir YK Pao Chair of Public Law at the University of Hong Kong Law Faculty and
Professor of Law at the School of Law of the University of Aberdeen. Mairianna Clyde is Associate
Lecturer in Arts at the Open University. E-mail: tcarty@hku.hk. The authors gratefully acknowledge
the critical engagement of the editors and the reviewers with earlier drafts of this article.
1 J Crawford & A Boyle, Referendum on the Independence of ScotlandInternational Law Aspects
(2013), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/
file/79408/Annex_A.pdf (last visited 5 July 2014).
London Review of International Law, 2014, 1 of 30

doi:10.1093/lril/lru007
! The Author 2014. Published by Oxford University Press. All rights reserved.
For permissions, please email: journals.permissions@oup.com
2 Carty and Clyde: Scotland and England as two independent kingdoms
emergence of Scotland as a completely new state, while leaving the international

law status of what they call rUK (r for remainder) untouched.
In this essay, we challenge this assertion through a reading of the Opinion
alongside two other recent publications, both likewise appearing in time for the
referendum. The first is Linda Colleys Acts of Union and Disunion, based on 15
talks she was invited to deliver on BBC Radio 4 in January 2014, so as to give
members of the UK public some deep historical background on the formation
and divisions of the current UK, and the forthcoming referenda on Scottish
independence . . . and other identity issues.2 Colleys broad historical panorama
helps explain, probably incidentally, why the legal issues to do with the conse-
quences of a Yes vote in the referendum are proving so difficult to grasp in both

constitutional and international law. The second book is Christopher Whatleys
The Scots and the Union, which, and this is his explicit intention, hopes to show
how very much the present debates about Union or Disunion resemble those of
the early 18th century in that they are primarily economic rather than romantic
or metaphysical concerns about identity.3 Whatleys detailed work allows a
more in-depth historical focus on the circumstances surrounding the conclu-
sion of the 1707 Treaty of Union.
We should stress at the outset our own simple conviction that there are
two countries, Scotland and England,4 which came into a voluntary union in
1707. Now Scotland, with the full consent of England, is reconsidering this
union. Rather than assuming that all international rights and obligations fall
to rUK alone, our view is that neither state necessarily continues the old UK.
Our aim here is not, however, to make a legal argument about the continuity of
membership in international organisations such as the UN and the European
Union (EU); it is rather to question the role of this apparently foregone con-
clusion on continuity in the existing debate, and, by placing it in a broader
historical context, to try and understand how it has come to seem inarguable.
The following essay divides into three parts: a consideration of contemporary
debates as to whether rUK will be the continuator state under international
law; an investigation of the legal culture that informs this debate in rUK
(drawing on Colley); and a retrospective on the historical events of the original
Treaty of Union (drawing on Whatley).
2 L Colley, Acts of Union and Disunion (Profile Books, 2014). See her Princeton website, available at
http://www.princeton.edu/history/people/display_person.xml?netidlcolley/ (last visited 18 July
2014). Colleys Britons: Forging the Nation 1707-1837 (Yale UP, 1992) was a ground breaking
work and a major political event in Britain in the 1990s.
3 CA Whatley, The Scots and the Union, 2nd ed. (Edinburgh UP, 2014). At the time of writing, the second
edition was in press; we were given access to the final page proofs. The book is now published.
4 Including Wales but not Northern Ireland.
London Review of International Law 2014 3
THE DEBATE IN SCOTLAND
For many Yes campaigners, the international law debate about the post-
referendum status of Scotland, in relation to the United Kingdom, has a
curiously diffuse and rambling, almost quaint, character. In a wry piece called
An Auld Sang Gang Wrang, published online on 26 March 2014, veteran political
commentator Derek Bateman commented at length on Crawford and Boyles
legal opinion describing it as one of those meandering, precedent-littered docu-
ments which takes us from Moravia via Panama and Syria to Slovakia in a (to
me) bewildering trek of legalistic irrelevance.5 While there is such a thing as
international law, Bateman remarks, it wont apply uniformly to any situation

you name. It is a chameleon which changes into different shades depending on
what question you ask it.6 Despite these uncertainties, according to Bateman,
Crawford and Boyle conclude that the Treaty of Union is irrelevant; that Scotland
ceased to exist in law in 1707while England may nevertheless have continued to
exist, or even expanded; and that Scotland has no international personality in its
own right and cannot revert to pre-1707 independence.7
For Bateman these conclusions are puzzling given the clear wording of
Article 1 of the Treaty of Union, which states that the two kingdoms of England
and Scotland shall on 1 May 1707 and forever after be united into one kingdom
by the name of Great Britain. He quotes Ted Cowan, Professor of Scottish
History at Glasgow: By my reading if Scotland goes so does Great Britain.8
Crawford and Boyle are probably not at the origin of the acronym rUK,9
the term they invoke for the rest of the United Kingdom which somehow
implies thatbecause the population, land mass and perhaps institutions of
Scotland are less expansive than England plus Wales and Northern Irelandthe
rest of the United Kingdom will become and constitute the continuing or
continuator state. However unclear it may be how this entity, rUK, has been
5 D Bateman, An Auld Sang Gang Wrang, 26 March 2014, available at http://derekbateman.co.uk/

2014/03/26/an-auld-sang-gang-wrang/ (last visited 5 July 2014). Derek Bateman is a leading Scottish
political journalist with 40 years experience at BBC Scotland, the Glasgow Herald, The Scotsman and
elsewhere.
6 Ibid.
7 Ibid.
8 Ibid.
9 Government-solicited legal opinions, such as Crawford and Boyles, are not always published and
may not even be intended for publication. In the present instance, the Opinion strikes a notably
different register from academic works by the same authors. See, for instance, J Crawford, The
Creation of States in International Law, 2nd ed. (Oxford UP, 2006); J Crawford, Brownlies
Principles of Public International Law, 8th ed. (Oxford UP, 2012).
contrived or constituted, it has huge legal significance in both constitutional

and international law. It is rUK, according to Boyle and Crawford, that is the
entity with which any post-Yes referendum Scotland would have to negotiate
the exact terms of separation and independence. And it is rUK which will
remain party to the treaties to which the UK is a signatory, retaining the
UKs membership of international organisations including the EU and the
Security Council. Far from being regarded as controversial, Crawford and
Boyles views reflect the broad consensus among politicians as well as interna-
tional and constitutional lawyers in London. They were reiterated by the House
of Commons Foreign Affairs Committee10 and in the Oral Evidence taken
before the House of Commons Scottish Affairs Committee on 15 January

2014.11
The cumulative effect of these legal arguments is that Scotland will be
completely out in the cold in terms of all the international relations at present
enjoyed by the United Kingdom. It can expect, as of right, no support from
future rUK institutions, in which it has no legitimate share, and will be de-
pendent upon the goodwill of the rest of the world community as to whether it
finds a place within it.
The supposed inevitability of rUKs continuity has received much atten-
tion on the Scottish blogosphere and in the media. For one commentator,
Christian White, the arguments that the Treaty is irrelevant and that
Scotland has ceased to exist are essentially strategic, part of the equally rhet-
orical bluff that somehow it is England that survives as Continuator State.12
The view from Scotland, argues White, is very different: Scotland never
merged with England; rather there have always been two separate entities
10 Foreign Affairs Committee, Foreign policy considerations for the UK and Scotland in the event of
Scotland becoming an independent country (HC 2012-13, 643).
11 Scottish Affairs Committee, The Referendum on Separation for Scotland: the impact on higher edu-
cation, research and tuition fees (HC 2013-14, 1144).
12 See C White, The Fiction of the Continuing State, Bella Caledonia, 25 February 2014, available at
http://bellacaledonia.org.uk/2014/02/25/the-fiction-of-the-continuing-state/ (last visited 5 July
2014). The Crawford-Boyle Opinion also occasioned a heated exchange within the Scottish
Parliament on 12 June 2014, between Adam Tomkins, Professor of Public Law at Glasgow
University and Mr Coffey, an SNP MSP. See European and External Relations Committee
Scottish Parliament: 12th June 2014, The Scottish Parliament, 12 June 2014, available at
http://www.scottishparliament.tv/category.aspx?sortdate&vid0_25qa24jd (last visited 5 July
2014) (Scottish Parliament Video) and Committee row expert seeks apology from SNP MSP,
The Scotsman, 13 June 2014, available at http://www.scotsman.com/news/politics/top-stories/com
mittee-row-expert-seeks-apology-from-snp-msp-1-3443833 (last visited 5 July 2014). Also, for the
reaction of Deputy Leader of the SNP Nicola Sturgeon, see N Sturgeon, UK Governments legal
opinion on EU, Scotlands Referendum, 11 February 2013, available at http://www.scotreferendum.
com/2013/02/uk-governments-legal-opinion (last visited 5 July 2014).
united in an associative alliance from which it has always been possible to

dissociate. The implication that Scotland was ever extinguished is absurd.
There has been a union of two states in Great Britain and with the dissolution
of this union, there will be two successor states, Scotland and England. Both will
remain members of the EU, although there will have to be negotiations with the
EU to regulate details of their status.13
There are at least two major difficulties with the Crawford-Boyle Opinion,
which the common sense of lay Scottish commentators, such as Bateman and
White, has picked up. Firstly, Crawford and Boyle do not convincingly dem-
onstrate that international law has a compelling conceptual logic or framework
with which to explain the legal significance of the referendum. Secondly, they

largely evade the fundamental question as to whether and in what way rUK is
distinct from England, a point which is essential to the thesis that a Yes vote
cannot mean the dissolution of a single state into two states. Confusion at the
first stage of Crawford and Boyles Opinion may very well be what impels the
turn to rhetoric at the second stage.
The crucial conceptual lynchpin of their argument has to be that there is a
system or order of international law which defines what a state is, and can
therefore determine whether a certain entity continues to be a state. The
point must be to show that, post-referendum, rUK continues as a state,
whereas Scotland does not. Crawford and Boyle address this conceptual ques-
tion in paragraph 52 of their Opinion:
In general, state practice shows that continuity depends on the criteria
for statehood: a state is the same if it involves what may be regarded as
the same independent territorial and governmental unit at the relevant
times, despite changes in its population, territory or system of
government.14
This proposition contains both tautology and imprecisions as to both subject
and object. By whom and for what purposes will something be regarded as the
same? As Crawford and Boyle are well aware (see, e.g., para. 19), international
13 White (2014) 4. Whites view is echoed in England by Tariq Ali. See T Ali & J Foley, Dismantling the
British State, Bella Caledonia, 10 March 2014, available at http://bellacaledonia.org.uk/2014/03/10/
dismantling-the-british-state/ (last visited 5 July 2014). See also E Bone, If Scotland breaks away, the
constitutional consequences would be dramatic, The Spectator, 24 June 2014, available at http://
blogs.spectator.co.uk/eddie-bone/2014/06/if-scotland-breaks-away-the-constitutional-consequences-
would-be-dramatic/ (last visited 5 July 2014).
14 See also para. 18: The term state continuity denotes cases where the same state continues to exist
despite changes in its territory and population. The central case of continuity is where a state retains
substantially the same territory and the same structure or system of government over a certain
period. In other cases it can be harder to determine state continuity.
law is notoriously indecisive about the coming into existence of or disappear-

ance of states in practice. Both are commonly referred to as issues of fact, not
law.15 The so-called Montevideo criteria of statehoodterritory, govern-
ment, population and capacity to enter into international relationstoo are
mere factual indicators of prospects of stability in relation to the management
of territory, which undisturbed observer or onlooker states may, in their pol-
itical discretion, take into account in deciding whether to continue to apply
rules of law to a particular, disturbed or otherwise changed entitysomething
Crawford and Boyle allude to regularly in their Opinion (e.g. paras 3.1, 22.3,
56.1, 70). No international authority oversees all of this. Recognition is usually
accorded to entities considered well established, but it may also be accorded

because of political preference about the supposed legitimacy of entities. So the
criteria of statehood are empirical indicators or guides to existing states, not
somehow legal indicators.16
How states actually behave in new situations concerning the creation
of states is, additionally, a product of bilateral and multilateral agreements
among existing states, which may or may not try to regulate, more or less
as they please, the new events where existing states are breaking up, dissolving
or whatever. States not party to these agreements, whether bilateral or multi-
lateral, can perfectly well ignore them. Needless to say there are vast quantities
of such agreements and Crawford has exhaustively analysed virtually all of
them.17 But these agreements are very difficult for a lawyer to understand in
historical terms. Their meaning may depend upon specific historical contexts
whose interpretation falls outside the ordinary competence of international
lawyers.
The second difficulty with the Opinion is its rhetorical conflation of
England with rUK. A good example occurs at paragraphs 36-39. In paragraph
36, it is asserted without citations that Scottish and English writers are united in
their view that the incorporation of Ireland into Great Britain in 1801, with the
Act of Union, creating a United Kingdom of Great Britain and Ireland, did not
15 Crawford himself, in The Creation of States in International Law, discusses this maxim at the outset
and disputes it throughout the book, putting forward instead the principle of effectivity. See
Crawford (2006). It is the view of the present author that effectiveness is in the eye of the beholder
and that what appears to be effective to one side may remain contested by another. See A Carty, The
Philosophy of International Law (Edinburgh UP, 2007), ch. 3.
16 Crawford (2006). See also C Warbrick, States and Recognition in International Law, in M Shaw
(ed.), International Law (Oxford UP, 2003) 205-67. The basic historical starting point was that since
states could not effectively prohibit war, they could hardly object to new states coming into existence
through war. Now war has been in principle abolished, but only very imperfectly in practice. Hence,
law does not really regulate this area effectively.
17 See Crawford (2006).
lead to the creation of a new state but was an accretion without consequences
in international law. This statement is important because the authors will later
(paras 65-66) insist that a Scottish Yes vote would be analogous to the Irish
separation of 1921-1922, with Ireland emergent as a new state.18 Immediately
following, in paragraph 37, the authors say that it is not necessary to decide
whether Union with Scotland created a new state, extinguishing both, or
whether instead England continued and was merely enlarged by the incorpor-
ation of (an extinguished) Scotland:
Whether or not England was also extinguished by the Union, Scotland
certainly was extinguished as a matter of international law, by merger
either into an enlarged and renamed England or into an entirely new

state.
...
It may also be misleading to speak of dissolving the union effected by

the incorporation of those territories: whatever the position historic-
ally or politically or in domestic law, in international law the position
of the UK does not necessarily differ from that of a state formed in
some way other than by a union.19
In fact, through these convoluted phrases, the authors do make a choice be-
tween the two views of the nature of the Union. They effectively decide that
Scotland was absorbed into England.20 The conclusionthat as a matter of
international law, it matters not whether the UK was created through a union
suggests that unions, of whatever kind and wherever they appear, are not
important in international law. This may seem true if, like the authors, one
assumes an essential continuity between England, the UK and rUK. But it surely
18 Crawford and Boyle claim the Anglo-Irish Treaty of 1921 had no essential effect other than bringing
about, in 1925, a change of title for todays rUK from the United Kingdom of Great Britain and
Ireland to its present title. There is no sense that the circumstances in Ireland between 1918 and
1921, leading up to the Anglo-Irish Treaty, were contested in a different way from events now in
Scotland. Nor is there any awareness that in the Irish context the idea of unionat the origin of the
title United Kingdom, as Colley points outhas always been bitterly contested.
19 Crawford & Boyle (2013) paras 37-39.
20 More precisely, the argument assumes that the 1707 union of Scotland and England did not produce
a new state but rather the resulting Great Britain was itself the continuator state of England. The
case is set forth in para. 35. Whereas the authors do not unequivocally assert this position, they
implicitly return to it when addressing the reversal that an independent Scotland would produce:
rUK would be the continuator state for these same reasons: it reverts to the England that had given
rise to Great Britain in the first place.
seems questionable from the perspective of the party whose international legal
personality is thereby extinguished.21
Crawford and Boyle go on to argue that the Treaty does not sound in
international law because, as the parties ceased to exist in May 1707, the treaty
has been of no [international] legal significance since that date.22 Evidence that
the UK was not bound, as a matter of international law, to the Treaty is adduced
from the fact that the UK Parliament has frequently amended the provisions of
the Treaty and Acts of Union, for example, on Scottish representation in par-
liament.23 The implication appears to be that, although England too no longer
exists as an international party, unlike Scotland it has not been extinguished
but transformed.

Yet the authors are unclear as to whether the amendments were confined
to the (indisputably domestic) Acts of Union rather than the Treaty itself. In
fact, the question of whether the Treaty itself could be amended by Parliament
came up in Scotland in the case McCormick v Lord Advocate.24 The case con-
cerned whether Queen Elizabeth II should have a different title in her role as
Queen of Scotland. The Court held that the Treaty of Union had nothing to say
on titles, which pertain to the Royal Prerogative. Summing up, the Lord
President of the Court, Lord Cooper famously said that the principle of un-
limited sovereignty of Parliament is a distinctively English principle and has no
counterpart in Scottish constitutional law. Moreover, as the Lord Advocate
himself admitted, the Parliament of the United Kingdom could not repeal or
alter [certain] fundamental and essential conditions of the Scottish Act of
Union.25 So, it is conceivable that any explicit attempt to repeal fundamental
and essential conditions of the Act of Union itself would raise controversy,
despite the dominance of the doctrine of parliamentary sovereignty in English
legal minds.
In any case, the claim that the Treaty of Union no longer has any inter-
national law significance conflates two differing functions of the Treaty: that, on
one hand, it signifies a union of equal partners, and that, on the other, the
partners, once united (in one Parliament, sovereign or otherwise in the English
constitutional sense), are bound to keep to the terms of their original agree-
ment. The implication could be that in practice the UK Parliament was not

22 Ibid paras 40, 42, citing E Wicks, A New Constitution for a New State? The 1707 Union of England
and Scotland 117 Law Quarterly Review (2001) 109.
24 MacCormick v Lord Advocate 1953 SC 396.
25 Ibid 411.
subsequently bound by what England and Scotland promised each other in

1707. However, Englands promises to Scotland in 1707 are not what is at
issue in the present debate. Rather the question is whether the UK as such
will survive Scotland leaving it. Whether there was an original partnership in
a Treaty of Union is relevant to this issue and so it is important for unionist
rhetoricfor that is what this Opinion isto speak in confusingly general
terms about the Treaty, viz. how it sounds (not a common legal term of art)
in international law.
The authors discuss the two possibilitiesthat either Scotland or rUK will
be the continuator statein the same deflationary style. The notion that
Scotland might have this role cannot be seriously entertained.26 It would be

evident without further elucidation that none of the relevant factors count in
its favour. The authors further claim that the most common situation of state
practice on secession and independence involves a single continuator state.
They base this on a series of (ultra-brief) historical examplesPakistan/India,
Singapore/Malaysia, Bangladesh/Pakistan, USSR/Russia, Eritrea/Ethiopia,
Montenegro/Serbia-Montenegro, South Sudan/Sudan. Finally they turn to
the loss of Irish territory in 1922, which they take to indicate that the UK
would survive another comparable loss of territory, regardless of whether it
changed its name (or flag) to acknowledge the loss of Scotland.27 The separ-
ation of Ireland from the United Kingdom through the Anglo-Irish Treaty in
1922 did not raise an issue of continuity of UK identity,28 so no consequences
for state continuity would likewise follow from Scottish independence.29
Whether rUK chooses to call itself Great Britain and Northern Ireland or
England, Wales and Northern Ireland does not matter in international
law.30 rUK would retain the rest of the United Kingdom: 92 per cent of the
population, more than 2/3rds of the territory and the principal government
institutions.
One implication is that sheer size is a determining factor for continuator
state status, ruling out Scotland a priori.31 Yet the rest of the United Kingdom
26 Crawford & Boyle (2013) para. 50.

27 Ibid para. 69.
28 Ibid paras 65-66.
29 Ibid para. 67.
30 Ibid.
31 For example, in para. 67, the authors describe Russia and Serbias claims to continuator state status
in terms of each having been the largest unit in a federal arrangement. In broader discussion, they
provide little evidence that size was a determining factor in either case, but this implication is clearly
helpful to rUKs case.
essentially means Northern Ireland, since Wales had already been annexed to
England forever by Acts of the Parliament of Henry VIII in 1536 and 154332
and was, by 1707, a principality of the England that was united with Scotland in
the Treaty of Union. By contrast, Northern Ireland today exists in a curiously
semi-detached relation to this entity. Crawford and Boyles reference to
Northern Ireland does not appear to take account of the Belfast Agreement
of 1998,33 according to which the terms of the 1949 Northern Ireland Act,
making Northern Ireland an integral part of the United Kingdom, were effect-
ively abandoned. There continues to be English responsibility for the North of
Ireland as long as the latters population wish, but in international law terms
in which the principle of territorial integrity still reigns supremeNorthern

Ireland can no longer be thought of as an integral part of the United
Kingdom.34 It is, therefore, simply England (plus Wales) which would
remain were Scotland to vote to separate from ita near return to the original
position of 1707.
In a final step, Crawford and Boyle take issue with an argument they
attribute to Paul Scott that, following the dissolution of the Union, Scotland
and England would revert to their previous position prior to the Union. Scott is
a retired diplomat, not an international lawyer, and he merely uses the language
of reversion to indicate that, post-independence, the status of the two countries
would be equal. However, Crawford and Boyle, leaving aside any reflection on
the status of England, argue that regardless of whether the UK is the continu-
ator state of England, Scotland was extinguished in 1707, so this possibility may
not depend on Scotts view that the UK was created by the Treaty of Union.35
Nor can there be reversion of status as a right flowing from the Treaty as we
have already concluded the Treaty no longer has any relevance in international
law.36 Finally, they conclude that there is little or nothing to suggest that
32 See Colley (2014) 77.

33 Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland
and the Government of Ireland, 10 April 1988, available at http://www.taoiseach.gov.ie/attached_
files/Pdf%20files/NIPeaceAgreement.pdf (last visited 5 July 2014). See in particular Article 1, which
provides that the future of Northern Ireland rests with the people of Ireland in the two jurisdictions,
North and South, provided that the wishes of the majority of the people of Northern Ireland to
remain part of the United Kingdom at present must be respected. This formula reconciles Irish
self-determination with the self-determination of the majority of the Northern Ireland population,
essentially abandoning a UK sovereign prerogative on the matter.
34 We discuss this matter of territorial integrity in greater detail below.
35 Crawford & Boyle (2013) para. 95.
36 Ibid para. 96. Although, as Crawford and Boyle point out, the claim that the new union is forever in
Article 1 does not appear to countenance reversion, it seems equally unlikely to preclude it in
situations such as the present.
Scotland could identify itself with the pre-1707 Scottish state in a manner which
would have any specific legal consequences for the issue on which we are asked
to advise.37 Where Scott claims that both Scotland and England would inherit
treaty rights, such as membership of the EU, Crawford and Boyle point out that
the EU did not exist in 1707.38 Nevertheless, their entire discussion of future EU
membership is premised on the assumption of the rUKs continuity vis-a-vis
Scotlands novelty.39
Much of this feels a little stretched. The simple matter is whether Scotland
and England should enjoy equality of standing following a Yes vote. This is an
issue Crawford and Boyle do not want to address because of the potentially
huge loss of international standing it could mean for England. The point be-

comes clear in their discussion of international recognition of the new arrange-
ments. While considering the tricky cases of the break-up of Yugoslavia into
multiple new states and of Czechoslovakia into two new states, they insist the
rUK would differ from these dissolutions of unions into equal states. rUK
would not be comparable to the Czech-Slovak case because, in that case, neither
state claimed continuator status, whereas rUK is highly unlikely to abandon its
claim. rUK differs from Yugoslavia in that the international community would,
on Crawford and Boyles account, be highly unlikely to dispute rUKs claim to
continuity as they disputed Serbias.40
This, although the authors only suggest it obliquely, is surely the nub of the
matter. rUK can be confident that it will remain the continuator state because
it can make the claim (that is, it will not accept the status of new state) and can
still assume no other state will dispute its claim. This is, again, a rhetorical
point. Ultimately rUK will need the support of other states to make good on its
claim to be continuator state. The rhetorical move is to simply assume that
support will be forthcoming, thereby building the legal argument on a self-
fulfilling tautology:
In our view, it can be expected that the weight of international opinion
would favour recognising the rUK as the continuator. The Foreign and
37 Ibid para. 109.

38 Ibid para. 113.
39 rUK cannot be conceived as losing its membership since EU treaties impliedly preclude automatic
withdrawalassuming that the rUK would generally be acknowledged to be the continuator state
of the UK. Ibid paras 6.1, 145; see too para. 148, and discussion of TEU Art. 50 at para. 147. By
contrast, it seems likely that Scotland would be required to join the EU as a new Member State,
though this too rests on the assumption that Scotland would be recognized as a new state. Ibid
paras 153-54. The effect is to pre-empt any discussion of Scotland preserving its EU membership by
treating a key prior question as already decided.
40 Ibid para. 93.
Commonwealth Office has already written in its memorandum to the

Foreign Affairs Committee that the overwhelming weight of interna-
tional precedent suggests that [rUK] would continue to exercise the
existing UKs international rights and obligations, and that an
independent Scotland would be a new state and that the UK
Government judges that this situation would be recognized by the
international community. We agree with that judgement.41
The first lesson of rhetoric is the need for repetition. So they conclude:
The state practice on the dissolution of predecessor states into two or
more entirely new states thus does not cast doubt on the preliminary
conclusion drawn above: assuming that the UK would be in a position

to negotiate the terms of Scottish independence and that Scotland and
other states would probably accept the rUKs claim to be the
continuator of the UK, it strengthens that conclusion.42
A glimpse of Scottish Government thinking about these legal arguments can be
gleaned from the heated exchanges involving Professor Adam Tomkins before
the Scottish Parliaments European and External Relations Committee Meeting
on 12 June 2014.43 The significance of the Crawford and Boyle Opinion was
queried by committee convenor Christina McKelvie, citing the contrary opin-
ion of Professor David Scheffer of Northwestern University.44 Two salient fea-
tures of Scheffers argument may have influenced Scottish Government
thinking on the matter. Scheffer comments that it is precisely the principle of
reversion that makes the Scottish case so unusual: Scotland is aiming to resume
a sovereignty it once had.45 Secondly the rUK continuator state argument has a
political motivewith its insinuation that the implications of independence
should appear traumatic to Scotland, faced with the possibility of exclusion
from its current membership in international treaties and organisations.46
Instead, Scheffer proposes cooperative mutual approval and acquiescence,
41 Ibid para. 70.

42 Ibid para. 94.
43 See especially Scottish Parliament Video. See also Committee row expert seeks apology from SNP
MSP; Sturgeon (2013).
44 D Scheffer, International Political and Legal Implications of Scottish Independence (2013), avail-
able at http://www.gla.ac.uk/media/media_269576_en.pdf (last visited 5 July 2014).
45 Ibid 11-12.
46 Consider the tone of the conflict between Mr Coffey, MSP for the SNP, and Prof. Tomkins over the
Crawford and Boyle Opinion in the above mentioned Scottish Committeeand the manner in
which the convener ultimately broke off their exchanges. See Scottish Parliament Video (at 1 h
15 min et seq.).
whereby both England and Scotland strive to facilitate each others membership
in international organisations and treaty relations.47
COLLEY: INTERNATIONAL LAW AND THE COMPOSITE

STATE
Linda Colley does not have the ambition to provide a deep academic analysis of
the build-up to the present situation in Scotland. She offers a reflective per-
spective on what she calls the British Isles and Beyonds experience of its various
political Unions, based on an encyclopaedic knowledge of many facets of ori-
ginally English, and then wider British, history, including the USA as a onetime

part of the British Empire. What her work affords, through her fundamentally
celebratory exposition of English/British political genius, is essential back-
ground to the most intractable problem of present legal debates, the creation
of rUK.
The significance of Colleys reflections is that she affords the insight that
the arguments used by rUK and its lawyers are not the supposedly devious,
manipulative bunk denounced by Pro-Yes elements of the Scottish blogosphere,
but rather represent the sincerely-held beliefs of a legal-political culture that
simply has no cultural-intellectual tradition which would allow it to construct a
constitutional and international law argument around the status of the so-
called rUK. One might usefully remember the quip of the proverbial Scottish
Wag, the British constitution is not worth the paper it is not written on. There
is simply no reflective conceptual framework for the world Colley so eloquently
describes. She shows how England has never developed a reflective framework
for how to deal with the Rest of the British Isles and, above all, no framework for
how it relates itself, England, to the Rest of the British Isles. The appearance of
bewilderment in the face of a virtually unprecedented situation which runs
through the official reports of the legal expert witnesses dealing with these
questions48 finds explanation in the fact that they can only appeal to what
appears to them to be obvious and what they expect, or at least hope, their
friends and allies will readily agree. They do not understand how to explain in
legal terms what is happening because, as Colley explains so brilliantly, there is
no legal tradition to explain the identity of the British Isles.
Colley shows that this English/British approach to constitutional and
international law matters, fundamentally antinomian, has hugely positive as
47 Scheffer (2013) 42.

48 Particularly marked in the exchanges between Professor Adam Tomkins and the Chairperson of the
HC Scottish Affairs Committee. See Scottish Affairs Committee (HC 2013-14, 1144).
well as negative aspects. As she explains in the introduction to her book, a

composite state such as the United Kingdom does not seek to enforce a dom-
inant view of the national past nor does it stamp out expressions of difference.
It acknowledges partial autonomy and separate rights of various countries and
regions. It has to be committed to a vision of the whole, to make concessions
and endeavour always to renew its vision to keep the composite state together.49
That must partially explain the extraordinary ease with which the UK
Government agreed, in the Edinburgh Agreement,50 to the holding of a refer-
endum and to respecting its outcome. International lawyers are virtually unani-
mous that there is no general right of secession of a part of a statewhich the
rUK obviously supposes Scotland to beexcept perhaps in the event of very

serious levels of oppression, which clearly do not apply in the Scottish case.51
The UK Government thus appears to be approaching the question of Scottish
independence without regard to the usual international law markers regarding
self-determination.
Certainly international law does not exclude dissolution by consent, as
in the case of the Czechs and Slovaks. However, this situation is extremely
unusual in international lawwhy, then, the liberal spirit of the Edinburgh
Agreement which runs so counter to the principle of the territorial integrity of
existing states, treated as a paramount principle of international law? To quote
Cassese:
Ever since the emergence of the political principle of self-determin-
ation on the international scene, States have been adamant in rejecting
even the possibility that nations, groups and minorities be granted a
right to secede from the territory in which they live. Territorial
integrity and sovereign rights have consistently been regarded as of
paramount importance; indeed, they have been considered as
concluding debate on the subject.52
Into this context Colley introduces the crucial historical concept of the com-
posite state, which, as she explains, is essential in order to understand the Treaty
49 Colley (2014) 9-10.

50 Agreement between the United Kingdom Government and the Scottish Government on a referen-
dum on independence for Scotland, Edinburgh, 15 October 2012, available at http://www.scotland.
gov.uk/About/Government/concordats/Referendum-on-independence (last visited 5 July 2014).
51 See especially A Cassese, Self-Determination of Peoples, A Legal Reappraisal (Cambridge UP, 1995),
esp. 108-25. See also AF Bayefsky, Self-Determination in International Law, Quebec and Lessons
Learned (Kluwer Law International, 2000).
52 Cassese (1995) 122.
of Union. There is an extensive historical literature on this concept,53 but

international legal history and theory have still to recognise and decide upon
the legal significance of the composite state. Historians such as David Armitage
explain how composite statehood was a feature of early modernity. Britain as a
composite state merely reflected a wider practice, encompassing the Austrian
domination of Bohemia, the histories of Spain, the Netherlands and Sweden.
State formation and empire building were inseparable in the early modern
period. Sweden, Finland, Denmark, England, Holland, Hanover, Holland and
other countries were joined together and separated according to a logic not
merely dynastic but also of partnerships of aristocratic caste, commercial, reli-
gious interest and affiliation. It is to the detriment of the discipline of interna-

tional law, as it is now generally understood and practiced, that it has nothing
sufficiently particular or specific to add by way of elucidation of histories of
countries caught up in composite state formation.
Colley provides that element of specificity by stressing the voluntary nature
of the Scottish-English Union, the elements of pact or bargain, which, by im-
plication, may need to be changed as the circumstances originally leading to the
agreement have themselves changed. This notion of consent underlying the
composite state is quite different from the fierce rigour of territorial integrity
underlying the nation statethe dominant model of statehood in international
society, to which Cassese is referring. That nation state has only one people,
while the composite state has several peoples, who from time to time may
renegotiate the nature of their relationships with one another.
This model applies easily to the Scotland-England relationship, but much
more problematically to the Britain-Ireland relationship, although Colley also
attempts to extend the theory to Ireland. As already mentioned, Wales was
annexed to England in 1537. Scotlands Union took place in a time of major
international and transoceanic war against Louis XIV of France (about which
more below) and involved a considerable element of bargain, which Colley
refers to as a stand-off.54 As for Ireland, Colley recognises that this was admit-
tedly a colony, in the sense of having been planted (in the term of art of the
time) with foreign settlements. The Irish Union of 1801 also took place in time
of war, after a resurgence of violence and a massive rebellion which Colley
sees as characterized again by sectarian slaughter: Great Britain and Ireland
53 There is considerable and not uncontested historical writing on the idea of the composite state in
early European modernity. See book review by Anthony Carty of B Kingsbury & B Straumann, The
Roman Foundations of the Law of Nations: Alberico Gentili and the Justice of Empire in 26 Leiden
Journal of International Law (2013) 487; and in particular the important work of David Armitage on
the Ideological Origins of the British Empire (Cambridge UP, 2000).
54 Colley (2014) 88-89. See also the discussion of this by Crawford & Boyle (2013) para. 28.
became the United Kingdom of Great Britain and Ireland.55 While, in Colleys
view, the Union failed in fact, it might have succeeded had Catholic
Emancipation (the admission of Catholics to parliament) been honoured im-
mediately rather than decades later and only under pressure. Colley concludes
her Irish reflections with the remark that only in recent decades has it come to
be widely accepted that acts of union of any kind may have been too crude
instruments in regard to Ireland, and that what is needed are messier, more
variegated, pragmatic political solutions. She ends the chapter with the words:
This work of compromise remains in progress.56 Colley retains her composite-
British-state optimism that the English-led composite State-Nation has the
intellectual and spiritual resources to maintain common relations among the

British Isles, which are based on consent and go beyond the hermetically sealed-
off relations of nation-states. Whether it is useful to see any significant element
of mutual consent to British-Irish relations is, however, a very complex ques-
tionbut the sharp distinction between the Irish and Scottish situations pre-
cludes any easy analogy of the kind Crawford and Boyle appear to reach for.57
In other words Britain, or whatever name one gives it, is being man-
agedpassive, impersonal tense, with no subjectin accordance with the
pragmatic astuteness that state-nations (Colleys term) must possess if they
are to survive. The pressure for union is stronger in time of war, and the
tendency to regionalism, devolution or decentralisation is more common
during long periods of peace, such as the late 19th century, or at present.58
The missing element in this analysis is England and it only appears at the end.
Colley recognises that each of the acts of union linked England with Wales,
Scotland and Ireland in time of or anticipation of war, the implication being,
55 Colley (2014) 98.

56 Ibid 103.
57 Crawford and Boyles suggestion that losses of UK territory following Irish separation, following
violent conflict are comparable to losses of territory from Scotland following a mutually agreed
referendum is confusing at best. A Carty, Was Ireland Conquered? International Law and the Irish
Question (Pluto Press, 1996) explores the historical narrative according to which Britain and Ireland
had been for centuries two Parliaments under a common Monarch. The greatest exponent of this
view was William Molyneux in the early 18th century. This view probably influenced constitutional
Irish nationalism in the 19th century and had considerable influence over Arthur Griffiths, the first
President of the Irish Free State and a key signatory of the Anglo-Irish Agreement. That Treaty
reflected such views. However, the 1921 Treaty was gradually dismantled by Irish leaders from 1932
onwards and there is little trace of it in the Belfast Agreement of 1998, asserting the self-determin-
ation of the Irish people over Ireland, albeit to be expressed in two jurisdictions. See, for an update of
the book, A Carty & X Zhang, Unequal to Equal Treaty: From the Anglo-Irish Treaty 1921 to the
Belfast Agreement (Good Friday Agreement) 1998 in a Chinese Perspective 7 Irish Yearbook of
International Law (forthcoming).
58 Colley (2014) 147-50.
although Colley does not say it, unions happened when Englands security
required them.59
However, the reversal of this process, especially since the 1990s, has not,
says Colley, been sufficiently thought through. Demands for autonomy will not
only increase in Wales, Scotland, and Northern Ireland, but also in England. She
then offers what is indirectly an explanation for the language of rUK. England
also needs its own discrete level of government. The lack of such an organiza-
tion . . . fuels resentment, and makes Westminster appear by default an English
parliament.60 Although Colley never says so explicitly, it is England which is
managing what she calls a state-nation through processes which do not modify
her, Englands own, institutional framework.

Hence, we now have an explanation of how the dominant legal mentality
can construct an entity such as rUK. It is whatever is leftover of the composite
state whenever a part breaks off. However, we cannot say what it is exactly,
because of the English doctrine of the unwritten constitution, which Colley
celebrates in a whole chapter.61 How can one identify what is rUK if one insists
that its identity has no written form? The claimed irrelevance of the Treaty of
Union of 1707 is only a recent instance of the longer-term refusal of this English
entity to let itself be put on paper. Indeed, how can any international lawyer
describe what is involved in Scotland becoming independent if there is no
conceptual framework to describe that of which it is now a part? In conclusion,
Colley does speculate that England might want to have its own parliament. If
this were to happen, it would, in her view, require that there also be a federal UK
Parliamentat least as long as the UK is more than England. However, the
great question for her as a historian, about which she does not have anything to
say, is whether, given the history of Englands relations with its neighbours, it is
likely to want to go down this path.
Instead, we have another and crucial exposition of English/British aversion
to what they regard as theoretical or conceptual and abstract thinking about
constitutions, or, more simply, the nature of the state. It is this legal romanti-
cism or mysticism which makes it so difficult to define what the legal issues are
surrounding the status of Scotland and England should Scotland (eventually)
vote Yes. If the English/rUK legal advisers are not prepared to recognise that the
Treaty of Union constitutes the state of Great Britain, it is impossible in either
59 Ibid 147-48. To what extent the composite state context for claims to independence can apply
beyond Scotland is too complex a question for the confines of this article. However, a survey of
the historically changing relations of Norway, Sweden and Denmark to one another would most
likely reveal strong parallels.
60 Ibid 152-53.
61 Ibid 137-45.
international or constitutional law to give any meaning to the separation of

Scotland from England. All Crawford and Boyle can do is to say that the popu-
lation of England, Wales and Northern Ireland is substantially larger than
Scotland,62 and all the Foreign and Commonwealth Office can say is that
most of the offices of government are in London and work out of London.63
Legal advisers such as Matthew Craven appeal to what allies would regard as
least disruptive and inconvenient, such as having to reconsider the position of
rUK in the UN Security Council.64
This is the true face of the legal romanticism Colley describes. The so-
called irrelevance of the Treaty of Union is on par with what Colley correctly
identifies as the put-down of the paper constitution whereby the British have

ridiculed written constitutions from the 18th to the 20th century.65 As Colley
puts it, the lack of a written constitution has functioned as a marker of British
identity.66 She effectively quotes Edmund Burke and James Bryce, Irish and
Scots voices, for the biblical idea that written words kill the spirit of the con-
stitution, which lives in the Hearts of the People.67 It would not be fair to Colley
to say that she has no critical distance from this rhetoric. Her last chapter does
call for a conscious deliberation of what should be the fault lines of responsi-
bility among regional, including English, parliaments, and a central federal
parliament. However, her authority as a historian can be invoked to argue
that the idea of an unwritten constitution has a long religious and intellectual
ancestry.68 Whether Colleys own advocacy of a newly written constitution
should be accepted depends in part upon the cogency of her future vision of
Great Britain. Nonetheless, as already noted, she does identify the crucial failure
in present thinking. There is no place for England apart from doubling as
representative for the United Kingdom. It is this fact, along with the mystical
English/British aversion to written laws, which produces the nonsense of rUK,
which is contrary to the ordinary meaning of Article 1 of the Treaty of Union.
62 Crawford & Boyle (2013) para. 68.1.

63 Foreign Affairs Committee (HC 2012-13, 643) Ev. 75, paras 19-23.
64 Ibid Ev. 2, Q4 . . . the delicate political balance that had gone into the construction of the UN
Charter would be unraveled . . . (Craven). Scheffers approach to the issue is less confrontational
than Crawford and Boyles. See Scheffer (2013). It is perfectly conceivable that Scotland would be
supportive of continued English membership of the Security Council, on the basis that at the same
time both countries supported each others membership of the United Nations and the EU.
65 Colley (2014) 139-40.
66 Ibid.
67 Ibid 141.
68 Ibid.
WHATLEY: THE HISTORICAL CONTEXT OF THE TREATY OF

UNION 1707
A key significance of Christopher Whatleys updated69 and detailed survey of

the 1707 union negotiations for this article is that he accords with Colleys view
of the entity called The United Kingdom of Great Britain that came into exist-
ence on 1 May 1707. Like Colley, Whatley is neither a legal nor a constitutional
historian. He is an economic and social historian. Nonetheless he is forced to
confront, in his assessment of the events, the nature of the state that emerged
from these negotiations. What Colley has called the state-nation or composite
state, Whatley refers to as a union state, as distinct from a unitary statethe

elusive concept that Crawford and Boyle seem to be searching for when they
claim that Scotland was extinguished on 1 May 1707.
The composite monarchy of 1603 became a union statethat is, one
with less of a monolithic centre than a full incorporating union, which
respected different polities and traditions, the fundamentals of
Scottish civil society.70
It is on the current failings of the union state he says, that contemporary
campaigners for independence base their case.71 Although the Union was
called incorporating, a term which was imprecisely understood at the time
(and which Whatley does not explore), in the spirit of the unwritten constitu-
tion celebrated by Colley living on in the hearts and minds of the people, he
notes that incorporation was hardly what happened in the aftermath. Demands
for self-government and more effective administration ever since 1707 have
reflected the gap left in the administration of Scotland caused by the abrupt
adjournment of her parliament.
It is historyand Scotlands distinct civic society within the relatively
loose constitutional structures of the British statethat have made it
so. This is three centuries after the incorporating union was
inaugurated.72
This hardly sounds as though Scotland was extinguished by an incorporating
union. Scotland has simply continued within the liberal confines of the British
69 The 2014 edition is a revised and extended edition of CA Whatley, The Scots and the Union
(Edinburgh UP, 2006).
70 Whatley (2014) 415.
71 Ibid 416.
72 Ibid 418.
state as noted by Colleywhat sociologists call a stateless nation73 and polit-

ical scientists refer to as a civil society.
Whatleys main purpose in writing this book though is not to grapple with
the nature of the union-state on which he helpfully sheds some light in his
additional final chapter, but to tackle, in the absence of any coherent theory of
the British state, perceptions which have sprung up and prevented correct
understanding of the Anglo-Scottish Union and of post-1707 Scottish, and
indeed, of British history. The nationalist paradigm, first penned by Robert
Burns of bought and sold for English gold and in which the Union is seen
as the culmination of English policy towards Scotland since the time of Edward
I, is, he opines, incorrect.

Far from having any imperial interest in Scotland after the successful
conclusion of the Union negotiations of 1707, the main attitude displayed
towards Scotland by England/rUK/UK/the British stateor whatever we may
call the entity into which Crawford and Boyle claim Scotland was absorbed and
extinguishedwas indifference. The main criticism voiced against that entity
from within Scotland after 1707 was not an objection to active or oppressive
colonialism (as in Ireland) but neglect. It took a further 178 years after the
ending of the Scottish Parliament and Scotlands interrupted political develop-
ment to establish the Scottish Office and the position of Scottish Secretary of
State (1885). This was after a long campaign by successive 19th-century Scottish
politicians and Lord Advocates. The imperial Parliament at Westminster was
apparently unwilling, too busy, or simply unable, to attend to Scotch business.
The move establishing the Scottish Office clearly indicates that the incorpor-
ating union had in fact failed to incorporate or extinguish Scotland and that
Scotch business existed and required to be attended to. The establishment of
the Scottish Office was a partial response to the Scottish Home Rule movement
promoted by Liberal Imperialists such as future Prime Minister Lord Rosebery.
He argued for Home Rule all round, i.e. in Ireland, Scotland and India, within
the wider embrace of a reformed British Empire, a partially realised vision
which eventually morphed into the British Commonwealth. One English
Tory wag commented at the time of the Scottish Home Rule campaign that
Scotland did not need a parliament because she of all nations, was so civic-
minded she was adept at self-government without one. This back-handed com-
pliment is an admission of the lacuna in British composite state formation as it
applied to Scotland. It also testifies to the potency of the diverse institutional
means both formal and informal by which the submerged Scottish nation state
73 See D McCrone, Understanding Scotland: The Sociology of a Stateless Nation (Routledge, 1992).
survived and continued to operate after 1707 via a construct which theorists call
civil society.
Whatleys second purpose is to show that the Treaty of Union was volun-
tarily agreed to by the Scottish Commissioners (MPs were called commis-
sioners in Scotland) and the extent to which economic reasons lay behind
this. He therefore contributes to a historiography of the Union as a voluntary
act which was not achieved by either corruption or duress. Building on his prior
extensive work on the pre-1707 Scottish economy and addressing other recent
economic research Whatley re-opens the economic case for Union which was
sidelined by political historians such as William Ferguson (1964) and P W J
Riley (1978).74 For Ferguson the Union was a close-run thing politically,

whereas Riley regarded it as the outcome of effective political management
and the greatest political job of the 18th century. As a social and economic
historian, Whatley is well-placed to argue for the importance of economic
motives and to update the traditional negative view of the pre-Union economy
put forward by Smout (though challenged more recently by Devine and
Macinnes).75
In several detailed chapters Whatley notes the procession of ceaseless eco-
nomic woes that led to Union as the Scots concluded that their best hope was in
developing their overseas trade freed of the restrictions of the English
Navigation Acts, an aim which many contemporaries came to believe could
only be achieved by a political union with England. He details the famines of the
1690s (caused by the Little Ice Age, and affecting all of northern Europe) and
how these hit agricultural yields; how grain imports to feed the starving drained
the economy of hard coin; of how illicit trade plus taxes imposed to fight King
Williams wars further drained the economy of specie (coinage); of how in a
fiercely mercantilist age the constraints of operating overseas trade were exa-
cerbated by the Nine Years War (1688-1697) followed quickly by the War of the
Spanish Succession (1702-1713). France was a major trading partner with
whom Scotland enjoyed a healthy trade balance via the French appreciation
of Scottish salmon and herring. But during the wars, French privateers could
take Scottish prizes whilst the English navy could intercept Scottish ships trad-
ing with the enemy. This tale of woe was finally capped by the disastrous failure
74 W Ferguson, The Making of the Treaty of the Union of 1707 43 Scottish Historical Review (1964) 89;
PWJ Riley, The Union of England and Scotland (Manchester UP, 1978).
75 TM Smout, Scottish Trade on the Eve of the Union, 1660-1707 (Oliver & Boyd, 1963). Smouts view
has been challenged by the more optimistic readings advanced by Allan Macinnes and TM Devine
resulting in two quite different understandings of the pre-Union economy. See AI Macinnes, Union
and Empire: The Making of the United Kingdom in 1707 (Cambridge UP, 2006); K Bowie, New
Perspectives on Pre-Union Scotland, in TM Devine & J Wormald (eds), The Oxford Handbook of
Modern Scottish History (Oxford UP, 2012) 316.
of the Darien scheme in 1700the Scottish attempt at colonisation in Panama,

whichin part because it had been opposed by William of Orange, the English
parliament and the East India Companycaused a great deal of resentment
between Scotland and England.76
According to Whatley, the majority of the group of Scots Commissioners
assembled to decide on Scottish accession concluded that Scotlands economic
interests were best served through union with Englandwhich would allow
Scots merchants to operate freely within the nascent English/British maritime
empire. In this, Whatley reverses the bought and sold for English gold77 para-
digm and argues for the primacy of Scottish economic drivers over English
political ones. He acknowledges that political management did indeed play a

role, that bribery took place, and that the Union was deeply unpopular with the
Scottish people, (noting in particular the role played by extra-parliamentary
debates and pamphleteering). But he argues by careful analysis of the parlia-
mentary speeches, diaries, and papers of minor politicians (much of this based
on the analysis of new sources), the longer-term voting patterns of the Scottish
parliamentary commissioners selected to treat for Union, plus those who actu-
ally voted for it in the autumn of 1706. He concludes that principles counted to
a degree which the Namierite school of 18th century political history (followed
by Riley and Ferguson) had discounted. Many commissioners had held pro-
Union views over a period of decades, mainly on the grounds of religion, but
also for economic and political reasons.
Though differences in religion were a large part of the difficulties leading
to the Union, competing economic interests were increasingly to the fore. By
1700, Scotlands economic interests were being very seriously damaged by a
combination of English wars and English mercantilist policy. Scotland in turn
constituted a threat to English interests after failing to declare on the succession
on the death of Queen Annes heir (leaving open the possibility of a Jacobite
succession in Scotland) and therefore had something to bargain withthe
essence of a reciprocity which open the way to a Treaty. This evidence of par-
liamentary votes and activity certainly demonstrates the separate institutional
personality of Scotland at the time of the Union and poses a challenge to the
implicit question-mark Crawford and Boyle raise over Scotlands independence
76 In consequence, many in Scotland opposed the continuation of the dual monarchy, which was only
confirmed through the Treaty of Union. The Treaty additionally compensated major Scottish in-
vestors in the Darien scheme, benefitting powerful landholders and decision-makers in the Scottish
Parliamenta turn of events that brought the Treaty into some disrepute.
77 A reference to the compensation for Darien and to other monies secretly dispensed to Scotland
during the Treaty negotiations, as alleged by the Jacobite George Lockhart of Carnwath in his
Memoirs of the Affairs of Scotland (1714). See Whatley (2014) 59.
in the 17th century.78 In this context, Crawford and Boyle invokewithout

endorsementTM Devines general history of Scotland. However, what Devine
meant was that 17th-century Scotland was not a 20th-century mass democracy
accountable to a wider electorate. But there was nevertheless a strong sense of
historical identity, a separate state apparatus79 and clear economic interests that
were not always successfully defended by the monarch (take, for example,
William of Oranges opposition to the Darien scheme).
The Scots have tended to view the Treaty of Union as fundamentally a
constitutional document, a view not always shared by English thinkers and
scholars. When Josiah Wedgewoods scheme for a collaborative history of
parliament was revived in 1951, the Scottish and English committees fell out

badly because of different interpretations of the importance of the Union and
the nature of the united parliament created in 1707. The Scottish committee
insisted it was a new constitutional entity, whilst the English committee con-
sidered it was the Westminster Parliament with Scottish MPs added. It was a
story of mutual incomprehension.80 It is this English forgetfulness about the
international significance of the Treaty which Crawford and Boyle have
breathed in the air, in the absence of any more thorough research into the
history of the Treaty of Union.
Whatleys exploration of the eventual solution of an incorporating union
is extensive; yet it raises more questions than it answers. What did this mean for
the Scottish Parliamentary Commissioners chosen by the Crown to treat for
union in 1706? And why was incorporation the model chosen, and what did
contemporaries mean by it, or indeed, by union? After the 1705 English Aliens
Act had threatened economic sanctions, it prompted the 1705 Scottish Act for a
treaty with England. This act agreed to negotiate with England, but signifi-
cantly it did not specify an incorporating union.81 In fact it barely mentioned a
union at all. The title was simply A Treaty with England. The main purpose,
stated in the preamble, was a treaty simply to settle the succession. Its further
78 Crawford & Boyle (2013) para. 28, citing TM Devine, The Scottish Nation, 1700-2000 (Penguin,
1999) xvii.
79 Scotland by 1700 was a distinctive early modern polity with a Parliament, religious and military
establishment, legal system, local government, Privy Council, Admiralty, Exchequer and identifiable
economic interests (notably the recently founded Company of Scotland, plus the Bank of Scotland).
80 DW Hayton, Official Histories of Parliament and the Nature of the Union of 1707: A Forgotten
Episode in Anglo-Scottish Academic Relations 93 Scottish Historical Review (2014) 80. See also the
discussion above of Scottish litigation around the title of Queen Elisabeth II in which the issue of UK
parliamentary sovereignty was discussed.
81 Act for a treaty with England, in KM Brown et al. (eds), The Records of the Parliaments of Scotland
to 1707 (St Andrews University, 2007-2014), 1705/6/194, available at http://www.rps.ac.uk/trans/
1705/6/194 (last visited 5 July 2014).
purpose was to find the most effectual way for extinguishing the heats and dif-
ferences that are unhappily raised between the two nations. The word union is
only slipped in rather apologetically at the very last line: to treat with such
commissioners . . . of and concerning a union of the kingdoms of England and
Scotland.
Did those parliamentarians who voted for this loosely worded act grasp
that incorporation was the end game? If incorporation was discussed infor-
mally off the record, did parliamentarians understand clearly what that might
entail? Did anyone? Often incorporation was disguised in vaguer, more emol-
lient terms as making the dynastic union more compleat or more intire. So
whilst Whatley notes that over a longer period of decades prior to the eventual

Union that many Scots parliamentarians were in favour of union, how this was
defined and understood appears to have been fluid and shifted over time. We
can all be broadly in favour of many types of union, it is the detail that matters.
Many Eurosceptics are broadly in favour of Europe and the EU, they just query
the way it currently works in practice and are nonetheless equally adamant
about the preservation of national sovereignty. Why was the incorporating
model the one that was pursued? Could the security objectives of both king-
doms that prompted the treaty have been met in other ways? Were the Scots
(notwithstanding the economic issues Whatley raises) acting under economic
duress by the 1705 English Aliens Act, and bounced into incorporation by a
more determined and effective Court ministry during a major international
conflict that threatened Englands security (as Riley and Ferguson argued)?
Why were federal models not pursued, which would have allowed the
Scottish Parliament to continue, within a defined range of powers but within
a wider imperial structure? From a Scottish perspective it seems extraordinary
that given the level of acrimony over Darien after 1700 and the Navigation Acts
that the eventual Treaty was secured in a matter of only a few short months
during 1706-1707. The conclusion reached by Allan Macinnes (2006) was that
the Scots parliamentarians were inept rather than corrupt during these
negotiations.82
These issues would benefit from more systematic analysis. Whilst Whatley
argues that most Scottish parliamentarians actually wanted Union, the wider
debate about a treaty with England was forced into ever narrower channels by
an increasingly determined ministry after 1705 and the idea of union was
initially quite fluid. The Scottish commissioners hand-picked by Queensberry
and the junto to sit on the earlier (failed) union commission of 1702 were
committed unionists. But what exactly were they committed to? In 1702,
82 Macinnes (2006).
the idea appeared to cover a good deal of latitude politically. One commis-
sioner, George Mackenzie, the viscount of Tarbat, even proposed a union
scheme that would have excluded the Hanoverian succession, apparently to
accommodate the Jacobites.83
Macinnes examined the alternatives to incorporation and the shifting
trends of the 1707 Unions subsequent historiography. From the 1730s onwards
(after a prolonged period of peace with France and Spain had caused memories
of international war to fade) he notes the Unions international background
disappears from English historical writing and thus its importance as a key
building block of the British state and imperial project fades.84 Indeed one of
the issues behind the history of parliaments squabbles in the 20th century was

the tendency of English historians not to mention the Union at all in assessing
the reign of Queen Anne, or even the broader events of the 18th century.
Issues relating to imperial governance and the constitution of the British
imperial project were raised once more after the loss of the 13 American colo-
nies. Thus renewed interest in the political modelling of the British state and
empire is found amongst 19th-century Scottish historians of the Union such as
Struthers (1827-1828) and Mackinnon (1896) who explored the extent to which
federative alternatives to the incorporating union had been pursued. Colley
notes that a variety of unions and political models were present in early
modern Europe and that political arrangements in state formation were fluid.
For instance, from 1714-1837 the United Kingdom of Great Britain shared a
monarch with Hanover. This did not lead to an incorporating union with
Hanover. The dual monarchy was amicably dissolved in 1837 when Queen
Victoria came to the British throne (Hanover rejecting female monarchs).
Political union is not a foregone conclusion of monarchic union. Macinnes
explores this variety too, observing that in the 19th century the incorporating
model applied to Scotland was never adopted in subsequent unions within the
expanding British Empire:
[L]ittle or no regard was paid to the [1707] Union as a precedent for
state formation and constitutional modeling, even though the
83 Riley (1978) 180.

84 He notes that the first historian of the Union, Daniel Defoe (1707, 1709), places the Treaty squarely
in the context of a major international conflict for control of the European continent and for global
trade. This line was followed by Abel Boyer (1722), the Anglo-Scot Gilbert Burnet (1734) and
Alexander Cunningham (c.1730, though not published until 1787) who noted that the Dutch and
the French had vested interests in Scotland opposing the Union. But from John Oldmixon (1735)
onwards the international background is forgotten, and the Union, if it is mentioned at all, only
appears as a constitutional adjustment which just happened to occur during the War of the Spanish
Succession. Macinnes (2006) 12-50.
dominions in Canada, Australia and South Africa were based on the

federative (federal and confederal) principles that featured promin-
ently in the polemical and parliamentary debates between 1702 and
1707.85
But the federative dominion model became the aim of the Scottish and Irish
home rule movements in the latter decades of the 19th century.
The parallel of being forced into a choice one might prefer not to make
exists today in the choice of wording of the referendum of September 2014
because it was David Cameron for the United Kingdom Government, who
successfully opposed the option of devolution-max from the referendum
wording, which most Scots wanted and would have easily supported.86 As in

1707, the Scots continue to be forced into narrower channels by a bullish
ministry and to be confronted with a starker choiceall or nothing.87
As regards the choice of the incorporating model, Macinnes appears to
have discovered a key driving force in Annes opposition to the republican ideas
that were steadily gaining ground in the Scottish Parliament after 1689. Source
material from the Danish national archives of the correspondence between
Queen Annes husband, the Danish Prince George, and the diplomat Ivar
Rosenkrantz reveals that Anne was no cipher. But her main objective in cur-
tailing the Scottish Parliament was safeguarding the royal prerogative, not the
Hanoverian succession. She argued, with some logic, that an article securing the
Hanoverian succession (Article II) was unnecessary, because if incorporation
was achieved the Hanoverian succession would be secured anyway.
Incorporation, or more specifically, the dissolution of the independent
Scottish Parliament, was Annes key objective after she had been forced, by
the pressing need in 1704 for taxes for the army on the continent (where
Marlborough was yet to secure his victory at Blenheim88) to accept the bullish
and provocative Scottish Act Anent Peace and War.
85 Ibid 37.
86 See, for instance, L Riddoch, Scottish people would have voted for devo max. Thats why its not an
option, The Guardian, 15 October 2012, available at http://www.theguardian.com/commentisfree/
2012/oct/15/scottish-independence-devo-max-referendum (last visited 5 July 2014); S Macnab,
Scottish independence: Most Scots back devo max, The Scotsman, 18 February 2014, available
at http://www.scotsman.com/news/politics/top-stories/scottish-independence-most-scots-back-
devo-max-1-3310342 (last visited 5 July 2014).
87 In view of Colleys analysis of the role of the incorporating Westminster Parliament as doubling for
an English and a UK Parliament, one might however wonder whether this option is once again being
excluded because of the fundamental failure of imagination in England, which she has identified.
88 Blenheim (13 August 1704) was a major battle and turning point in the War of the Spanish
Succession. The Act Anent Peace and War was introduced and passed by the Scottish Parliament
in 1703. However the Queens Commissioner refused to touch it with the sceptre (meaning it could
This act, which asserted the Parliaments rather than the Crowns right to
determine an independent foreign policy in the event of the death of Anne
without heirs, was the immediate catalyst for union on the English side. It raised
high alarm in the House of Lords and prompted a forceful reaction in the
English Parliament. The English response, the Aliens Act, passed in 1705 but
never actually put into force, pushed the Scots into union.89
Although the Hanoverian succession was secured in England in 1701 and
in Ireland in 1703, it was only ever secured in Scotland by the Treaty of Union,
where it forms Article II. The possibility of a Stuart restoration allied to Louis
XIV had remained a distinct and threatening possibility.90 The incorporating
Union was thus driven on the Scottish side by economic motives and on the

English side by security motives. It was a Treaty with major implications for
both sides.
CONCLUSION: ANGLO-SCOTTISH DISUNION
In contrast to the general run of English/British lawyers, the political commen-

tator Tariq Ali, in an interview on the Scottish-housed blog Bella Caledonia,
entitled Dismantling the British State, considers that: the only written aspect
of the British constitution is the so-called Treaty of Union of 1707. Now what
the Scottish people are voting for, if, as I hope, they do vote yes, then the British
state as it exists is dismantled, full stop. The vote for Scottish independence is
the end of the British state as we know it. How it will develop after that remains
to be seen. But, certainly, Scotland breaking away dismantles the British state.91
Just as the key argument in 1706 was economic, the major concern now in
Scotland is also economic; what Tariq Ali identifies as the corrosive impact of
the ideology of neo-liberalism, an EU of bankers and a Centre/Right/Left
not become law) and so the Parliament responded by refusing to extend supply (taxes) to pay for the
Scottish forces currently with Marlborough on the continent. By the following year the matter was
even more critical as Marlborough was under extreme pressure. News of Marlboroughs victory
came only days after Queensberry was forced to touch the Act with the sceptre. The Act Anent Peace
and War would have placed key restraints on the royal prerogative that would have made Scottish
Parliaments, not the monarch, responsible for the decision to go to war.
89 If the Aliens Act had been enforced it would have ended Scottish overland domestic trade with
England, depriving the country of much needed coinage in time of war when for reasons already
explained overseas trade was already severely restricted.
90 Macinnes (2006) 10: the ongoing war of the Spanish Succession threatened to become the War of
the British Succession once Louis XIV of France recognised Annes Roman Catholic half-brother as
James III (and VIII).
91 Ali & Foley (2014).
coalition across Europe, which is supportive of military occupations abroad and

anti-terrorist restrictions on individual liberties at home.92
The UK is now highly centralised. In 1707, though taxation on a range of
goods rose six-fold as a result of the Union, the reach of the British state did not
otherwise disrupt much of local life in Scotland (and taxes took a century and a
half to impose). Education, welfare, the legal system, the church, banking,
commerce, and local government were secured by the Treaty and remained
in Scottish hands and un-tampered with for most of the next century and a half.
But much has changed since. As Whatley notes, the weakening of the Union in
the twentieth century stems from the simultaneous failure of all the props upon
which it rests.93

Colleys clear message has been that the existence of a composite state, such
as Great Britain, depends upon competent management, a vision to hold it
together. The Anglo-Scottish Union was, at the time, a reasonable stand-off, in
her words. Yet now her vision is very thin, perhaps primarily a proposal for an
English Parliament, mainly to assuage English resentment of Scottish and Welsh
devolution. From 1707 until the 1960s the Anglo-Scottish Empire was built and
lost. Industrialisation, the fruit of this Union, came and went. Two world wars
were fought and won. Then the nationalised industries and utilities, the hope of
post-war Britain, were closed or sold off in an ideologically motivated pro-
gramme of closures and privatisations begun by Margaret Thatcher after
1979, continuing most recently with the sale of the Royal Mail. De-industrial-
isation accelerated in the 1980s and hit Scotland hard. The historic Scottish
regiments that secured empire were reduced and amalgamated into a single
force, the bland-sounding Scottish Regiment. Scots opposed but have had little
or no influence over any of these policy changes though principally affected by
them and rightly ask themselves what of The United Kingdom of Great Britain
that they helped build is there left to belong to? In the twenty-first century
Union has come to be synonymous with rule by a distant London power elite
and a vision of the country steered in the interest of its sole remaining industry,
the financial services of the City of London. The first partner has become the
last colony.
Whilst Colley argues for a re-balancing of the British state-nation by the
creation of a separate English parliament to serve English domestic interests,
reserving to Westminster major cross-border issues such as foreign policy,
defence, macro-economic strategy, climate control etc.,94 this entirely misses
92 Ibid.
93 Whatley (2014) 421.
94 Colley (2014) 153.
the point, as it is precisely defence and the macro-economic strategy which are
at issue.
What has fuelled the independence movement in the 20th century and
dominated the nationalist debate more than any other matter is the question of
who controls the Scottish economy. Alex Salmond is an oil economist. The neo-
liberal economic model that allegedly best serves the City of London and which
English voters and politicians seem most committed to has little resonance in
modern day Scotland. Scottish political culture is business orientated but re-
mains stubbornly left of centre on social issues, viewing social capital as another
kind of asset or cost-benefit. In the context of declining resources and spiralling
national debt, there is mounting alarm in Scotland at the political and eco-

nomic direction currently being pursued by the south, the promotion of private
wealth and the spiralling inequalities (which have the effect of increasing the
welfare bill and national debt as living costs rise and become unaffordable).
Chris Harvies Fools Gold (1994)95 is a hugely important book cataloguing the
disastrous handling of North Sea oilstocks and revenuessquandered to pay
for Thatchers social experiments in closing down ailing British industry in the
1980s when oil revenues were at their peak. Scots feel that over the past 40 years
their security has been threatened by an English majority no longer in tune with
Scottish aims in the post-imperial, post-industrial world. The placing of Trident
along the Clyde next to the major population centre of Glasgow is only one
example of this and represents a direct colonial intervention into the territory
and population of Scotland in direct opposition to the settled will of the
Scottish people or the laissez-faire liberal spirit of the incorporating union.
The nationalisation then closure of Scottish industry and the mishandling of
North Sea oil are other centralised interventions that have affected Scotland
deeply. The union state has latterly become the unitary state assumed always
to have been the case by Crawford and Boyle. But such creeping centralisation
flies in the face of the unwritten constitution of non-intervention and respect
for the different polities and traditions, the fundamentals of civil society that
had prevailed for two and a half centuries of the Union and was the underlying
spirit that welded it together.
The asymmetry of the unequal union allied to differences in economic
direction in a declining state-nation poses a real problem for democracy in
Scotland. Scotland remains a distinct geo-political entity comprising eight per
cent of the UKs population and 30 per cent of its landmass, 500 miles distant
from the power elite in London and further still from European markets. Policy
difference was less important when local power was greater and UK consensus
95 C Harvie, Fools Gold: The Story of North Sea Oil (Hamish Hamilton, 1994).
over defence and the economy was also greater than it is today. In 1707 the
Unions purpose was to secure freedom of trade and commerce in an imperi-
alist, mercantilist age. But today we are managing contraction and decline and
free trade and security are provided by other transnational structures such as
the EU, the North Atlantic Treaty Organization (NATO) and the UN. The
Union has served its original purpose and is increasingly viewed as an an-
achronism but more so a dangerous one, an impediment to democracy, pros-
perity and securityand no longer an aid to negotiating the opportunities of
the modern world as Scotland attempts to re-build her post-imperial, post-
industrial economy.

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London Review of International Law Advance Access published August 12, 2014

Scotland and England from a union of

Linda Colley, Acts of Union and Disunion (Profile Books, 2014)

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The UK Governments advisers claim that Scotland, in the event of indepen-

With the 2014 Scottish referendum on independence in view, the UK

London Review of International Law, 2014, 1 of 30

emergence of Scotland as a completely new state, while leaving the international

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THE DEBATE IN SCOTLAND

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5 D Bateman, An Auld Sang Gang Wrang, 26 March 2014, available at http://derekbateman.co.uk/

contrived or constituted, it has huge legal significance in both constitutional

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united in an associative alliance from which it has always been possible to

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law is notoriously indecisive about the coming into existence of or disappear-

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It may also be misleading to speak of dissolving the union effected by

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21 Crawford & Boyle (2013) paras 37-38.

subsequently bound by what England and Scotland promised each other in

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26 Crawford & Boyle (2013) para. 50.

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32 See Colley (2014) 77.

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37 Ibid para. 109.

Commonwealth Office has already written in its memorandum to the

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41 Ibid para. 70.

COLLEY: INTERNATIONAL LAW AND THE COMPOSITE

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47 Scheffer (2013) 42.

well as negative aspects. As she explains in the introduction to her book, a

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49 Colley (2014) 9-10.

of Union. There is an extensive historical literature on this concept,53 but

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55 Colley (2014) 98.

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international or constitutional law to give any meaning to the separation of

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62 Crawford & Boyle (2013) para. 68.1.

WHATLEY: THE HISTORICAL CONTEXT OF THE TREATY OF

A key significance of Christopher Whatleys updated69 and detailed survey of

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state as noted by Colleywhat sociologists call a stateless nation73 and polit-

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of the Darien scheme in 1700the Scottish attempt at colonisation in Panama,

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in the 17th century.78 In this context, Crawford and Boyle invokewithout

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83 Riley (1978) 180.

dominions in Canada, Australia and South Africa were based on the

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CONCLUSION: ANGLO-SCOTTISH DISUNION

In contrast to the general run of English/British lawyers, the political commen-