Secession or Dissolution

The Scottish Government published its White Paper on the Independence Referendum today, so the phoney war is finally over and we can start to debate seriously. Very few people are going to make their decision based on issues in international law, but there are some fascinating questions. For instance, if the referendum decision is for independence, the manner in which Scotland would legally constitute itself is not clear. There is no legally defined mechanism for secession from the Union. The Acts of Union (in British and Irish Parliaments) 1801, creating the United Kingdom of Great Britain and Ireland, were never repealed, merely amended, in the UK and were only repealed in the Irish parliament in 1962 and 1983 respectively, long after Ireland had declared a republic and left the commonwealth (1948). The British response to that was the Ireland Act of 1949, which effectively decided to treat citizens of the Republic of Ireland as if they were still UK subjects (which is why I get to vote here in referenda and don't need a passport to enter the UK). So while the Republic of Ireland effectively seceded from the Union, it did so, in a legal sense, so incrementally that it didn't establish a precedent.

So if the Scots do decide on independence does that mean they secede from the union or does that mean that the union is dissolved? Since the constitutive documents of the union are all based on the 1707 settlement (explicitly cited in the 1800 negotiations which established that the Irish Parliament had enough constitutional authority to dissolve itself, but not enough to negotiate a new treaty of union), can a United Kingdom legally exist if one of the constituting parties pulls out of it? Wales would still remain attached to the Crown and the English Parliament come what may since the incorporation of Wales long precedes the Union, but all other dependencies of the Crown of England would need to renegotiate their relationship to the English Parliament. There are quite a few entities, such as the Isle of Man and the Channel Islands, that are already subject to the Crown of England but not part of the United Kingdom, so there is domestic precedent for complicated constitutional machinery.

Oddly enough, if the legal situation was dissolution this would make the European issue much easier. Europe has already established that it recognises the entities consequent to a dissolution (Czechoslovakia and Yugoslavia) as successor states, so both Scotland and whatever constituted itself out of subsequent negotiations between Northern Ireland and England would be automatically members of the EU. The contrast would be with the Soviet Union. When it dissolved only the Russian Federation was recognised as its successor state and the other republics were new states, but the consequence was that it assumed all the debt of the Soviet Union. So either dissolution or secession have downsides from the perspective of England and Northern Ireland.

If we get to the point where Scotland, England and Northern Ireland are negotiating Scottish Independence, public international law is going to constrain all parties in interesting and possibly unpredictable ways. The domestic constitutional stuff could get interesting too. If there is a dissolution, given the 1707 union was an incorporating union and the Scottish Constitutional tradition was not continued, does the Kingdom of Scotland revert to the forms of 1707?