 Hello everyone, it's very nice to welcome everyone here in the issue of major constitutional importance. From the numbers here you'd all been interested so that's fantastic. I'm delighted to welcome Professor Crawford, one of the co-ausers of the opinion that the UK Government published. He's good to speak for about ten minutes or so on his opinion. Yn ddod, Michael Viball a Dr Marcus Gearing yn gweithio'r gwaith ar y cyfnod EU. Mae'r gweithio'r gweithio'r gweithio EU yn ymgyrchau'r semenau, yn y llaw yng Nghymru, yn y semenau, mae'n ddod yn ddod o'r ddod o'r ddod o'r ddod o'r ddod o'r ddod o'r ddod. Yn ymgyrch, yw'r hanfodol yw'r droswyddon? Hraeg ysbyt y Rhocau, fel y ddod y Llywodraeth, yn ymgyrch a'r 1 Eungwyn, bydd hyn yn Ymgyrch ym Mhwyloeddig, ein sgolwyd yn yn ein pleirwr yngellid, bydd hynny yn gwasanaeth, yn ymgyrch yn gwneud, yn ymgyrch a'r Ysbyt yw Llywodraeth, yn ymgyrch ymgyrch ymgyrch, yn ymgyrch ymgyrch a'r Serbych. Felly bydd hynny'n ymgyrch, yn ymgyrch ymgyrch, y Llyfrgell Great Britain. Mae'n rhaid i'r Prif Weinidog wrth gan y Llyfrgell Prif, rwy'n dechrau i'n ddigon i ysgogelio ar y llyfrgell. Roeddwn i'n mynd i'n dda i'r berthynas y Llyfrgell Great Britain yn fawr o Scot i ysgogelio ar y Llyfrgell. Fy gyrfa'r ysgogelio, mae'n cyfgau'r wneud yn fawr o'r llyfrgell i'r Llyfrgell. Mae'r cyfraith o'r cyfraith o'r llyfrgell yn fawr o'r cyfrif. o'r cymdeithas ymlaen o'r ffordd ymlaen o'r ffordd yn gyda'r newid ymlaen yw y mynd i'r ffordd ymlaen o'r ffordd. Mae'r ffordd, yn ymlaen o'r ffordd, yn yr hyn yn cymdeithio gan unrhyw gyda'r company, yn ymlaen, yn ymlaen o'r ymlaen o'r ffordd yn ymlaen o'r cymdeithio'r Ymlaen, oedd yn ymlaen o'r I-707, maen nhw'n ddechrau'r Llyfrgell, yr ydych chi'n gweithio'r ddweud, mae'n nodi'r cyflwyngau ac yn chweithio'r ddechrau. Rwy'n gweithio'r pro-agregau a'r ddechrau'r ddweud. Rydw i'n gweithio'r ddweud, mae yna gweithio'r ffordd maen nhw o'r rhan o'r tyflau. Ond rwy'n gweithio'r ddweud oherwydd, mae'n gweithio'r ddweud. Mae'n gweithio'r ddweud o'r hyn sy'n gweld i'r Brithyn Yn Gweithio. ein sylfaen hwn yn dweud i'r ymddur i ddwy Godef? dyfu'r canhwys yr un nesaf llath yng Nghymru. Let's talk about the 20th and 21st century, rather. Obusi, handlaethau'r dechrau fel ysgol Oldade yn ystod ysgolóaedd o losgosol. Ifanc, mae hwn yn y bobl newydd a allan o ddraes Unedol fe o gyfrifiadau yn yr effeithiwn, Dan define anglyfu i'r cwreg o'r antaradau i'r gwirionedd Cwrech yma gan y surface ar y Llyfrân Cymru, prèsbócwyr a rydw i'r Tuft Cymru, lle mae'r Cuwec yn Gymru, o'r Cynedd Cymru Cymru, hon i'r unedig a'u gyntaf iawn a'r unig. The most useful thing in that very useful opinion was its emphasis on a clear answer to a clear question. The question that had been asked of the Cuwec electorate, was lost by only a few hundred thousand votes. Was are you in favour of the sovereignty of Quebec, which is a question that you might ask in a three hour unseen examination paper in advanced political studies? Most of the people who voted yes to that question actually thought that Quebec was already sovereign. We've learnt from that and the electoral commission has already established a clear question to which a clear answer will be given yes or no. The answer is yes. The second thing that's been learnt, I think, from the Quebec experience is that there will then be a period for negotiation in which one would expect most of the issues to be sorted out. I've been pitted against, well, the Scottish National Party in relation to debate. In relation to the Scottish National Party, I have nothing whatever to say. I'm not a member of the political party and never have been. However, I was asked by Her Majesty's government, the government of still for the time being of the entire United Kingdom, to set out what the international law position was and I did so in a paper which was annexed to the paper taken before Parliament a couple of weeks ago. The position is quite simply that, on all indications, if Scotland was to become independent it would do so by separation. From the United Kingdom. The United Kingdom would not fall apart any more than it fell apart on previous occasions. For example, when the Irish Free State separated in 1822, let alone the tragic loss of Australia. At a date still to be determined. The United Kingdom stays the same, despite all its tug-of-versations and changes. At the international level, there's really no doubt about that. No doubt whatever. It's happened on many occasions. There are only two occasions where the so-called rump state, and I say that about the United Kingdom with certain misgivings because the meat is so bad. The so-called rump state was held not to be continuous with the predecessor. They are Serbia, Montenegro and Czechoslovakia. In Czechoslovakia it was agreed between the two states that neither would claim to be a continuator. That agreement was honoured. Although I have to say there was still a tendency at the international level to regard the Czech Republic as a last recourse guarantor in respect of Czechoslovakia, despite the fact that everyone recognised that there were two new states which were promptly admitted to the United Nations. In the case of Serbia and Montenegro, the situation was obviously very different. First of all, there was the history and secondly there was the war. Thirdly, there was the plans for ethnic cleansing and greater Serbia. In those circumstances, the international community very rapidly took the position that Serbia could not automatically claim to be a continuator. Had the issues been resolved diplomatically at an early stage, which would have required Milosevic to fall under a bus, the situation might have been different. My perception is that continuity was held out as a possible plumb by the United Nations in return for cooperation, which was obviously not forthcoming at that time. At the international level it is perfectly clear that the rest of the UK will retain the veto, like the Russian Federation will retain the veto in 1991. We will remain a member of the United Nations and of the Security Council, and all other issues will be resolved on the basis of that continuity. Scotland will be a new state. Whether it claims to be the same state as pre-1707 Scotland is basically up to it. So long as nothing turns on it, everyone will say, well you want to be an old state rather than a young state you can be. But don't let it make any difference to us, which is what France said to the Baltic States, with perhaps less justification. There is a case for going back when General De Gaulle was to Edinburgh, he referred to the Treaty between Scotland and France of 1249, which is earlier than the oldest British Treaty, which is always mentioned as the Treaty with Portugal, the 13 something or other. So the English has to be say long memories, but not as long memories as for Scotland. Turning to the two questions which are somewhat more vexed, the first is the European Convention of Human Rights. What happened with Montenegro is likely to be what happens here, that is that Scotland will succeed, if not automatically then with its acceptance to the European Convention with immediate effect. But the membership of the Council of Europe will follow, no doubt a formality, but will follow as a separate issue. Let me turn to the European Union. Now international lawyers and European lawyers have developed different cultural attitudes towards the European Union, starting out from the same starting point which is that this is a new subject of international law. The EU attitude to international law is that it is for lesser breeds without European law, if I can paraphrase Kipling. And the international law is very useful in dealing with ROW the rest of the world, but should be basically astute when dealing with the European Union. International lawyers feel if you scratch European law hard enough, you come to a bedrock of international law reflected by the fact that European law is basically founded on treaties, T-R-E-A-T-I-E-S, which are made by the normal constitutional form for treaties for the rest of the world. I can't propose to resolve that constitutional dilemma between the disciplines of European law and international law in relation to Scotland. What I would say is that you can never tell what the European Court is going to do next, and it may be the European Court will make the European Union into a sort of primordial right of the individual. So that we have an individual right to be members of the European Union in the way we have an individual right not to be tortured, or subject to inhuman degrading treatment of punishment, I should add. It's possible they will do that. It's not the view of the European Commission which says that the normal situation will be a treaty of accession by Scotland. Where David Edwards and I agree is that there won't be any particular difficulty in entering into that treaty. But there are things to be negotiated. Of course there are things to be negotiated in relation to England as well. I'm sorry. I said a terrible word. The rest of the United Kingdom. For example, there will have to be a reduction in votes and a reduction in the budget, and maybe some other issues, but they won't be very difficult and there won't be very many of them. There are more in relation to Scotland, for example the opt-outs. Scotland is going to need some and may not want others. And I think the rest of the European Union will not regard Scotland as having the same bargaining power as the United Kingdom has in relation to the opt-outs. So we will see. If I had to predict, I would suggest that the European Court of Justice, if it gets its hands on the point, which is a big if, will basically stipulate some form of negotiating process in the way the Canadian Supreme Court did in the session reference. But then there's nothing to be learnt from international law. Is there? Thank you. Thank you very much James. Thank you very much Catherine. As someone who teaches the laws of EU external relations, I spend a fair bit of time trying to help EU lawyers to see that international law is more than just messy or coloured by personal opinion. I'm also found trying to help international lawyers to see that the EU is more than just another international organisation. Both in neither are right of course. My concern is that there should not be such a dichotomy as EU law versus international law. Rather a new answer analysis is needed as to what roles these embedded set of legal rules can play and do play conditioned by policy and politics. From this view, although James Crawford and Alan Ball are very mindful of EU law in their recent opinion, they could engage in an even more in-depth analysis. The EU starts from a perspective of autonomy of the EU legal order. This means that almost like in a domestic legal system we find ourselves asking the question, is international law applicable and if so under rich conditions? Generally the CJEU decided in the ATA case relying on first corporate shipping most of international law is applicable to the EU although only a subsection applies directly to citizens. In the Cardi case the CJEU made it very clear that the validity of international law in the union's legal order is not limitless. It is subject to important EU values such as fundamental rights. In the recent 36410 case of Hungary and the Slovak Republic the court provided an interesting clarification on this point. Hungary thought condemnation of the Slovak Republic for denying entry of the Hungarian president for a memorial celebration. While the Slovak Republic argued that this relationship was governed exclusively by international law and Hungary argued that it was governed exclusively by EU law, the court of justice took a more nuanced view. As the court explained EU law does apply in such a context but a special exception also applies to the position of the president of another member state given his status under international law. In other worlds while one might be the norm and the other the exception both international and EU law must be considered together. For the present case this suggests assuming that James and Alan's conclusion on the UK as a continuing state and Scotland as a new state are correct, I defer to their expertise on this, that both extreme positions must be rejected. On the one extreme it could be argued that the new relationship would be solely governed by public international law. On the other extreme it could be argued that the newly independent Scotland would simply continue as an EU member state with no need for accession. There's plenty of EU law that applies to the question of membership especially withdrawal and accessions. In other words the CJEU would easily come to the conclusion that EU law does govern the question of Scottish membership possibly with an exception arising from international law. As such if the relevance of article 50 of the Treaty on the European Union is only discussed in relation to the rest of the United Kingdom this would be unfortunate. Article 50 might provide interesting insights also for the creation of a new state within the EU legal order as argued by David Edward. As is evident I agree with the view that these issues can and would be resolved in negotiations in which policy and politics become regressively but realistically relevant. The importance of the EU legal order and the continuation of applicability of EU law in Scotland make an entirely conceivable that a slim version of membership negotiations, very similar to the proceedings for Eastern Germany could apply to a former part of the EU. In that case such a new state, one that has already implemented the entire a key commentary, these negotiations could be rather straightforward. Of course this then also begs the question of whether a possible rest United Kingdom veto of Scottish EU membership could be regarded as illegal under the EU legal order an issue which might be interesting to explore another day. It should be highlighted that the court does, like many domestic courts, have a tendency to maximise the application of its own EU law. For example, in the recent C420 or 7, a post arbostelidus case, the judges concluded that a regulation limiting the application of the a key to southern Cyprus could not be used to block a judgement concerning property lying in northern Cyprus. The SAR case is also a good example in question. Although the formal treaty recognising the change in the European cold and steel community, mostly formalities, was not ratified by several member states for several years, the practical application of EU law was never called into question given that EU law in the region applied even before the SAR was returned to Germany. Jameson Allen's opinion is that the question whether a state is a member of the EU is hitherto been treated as a matter of international law, citing Commission President Barroso, just as the question of territorial extent of the state has been citing Hansen and Halbd Solon Flesbro. This is one place where certain nuances might be helpful. While I do not argue that they are wrong, the legal situation of overseas territories is perhaps more complicated than a unilateral decision by one EU member state as seen by the many works on EU law of the overseas. Different perspectives, these bothersome nuances, also become clear in the question of EU membership of the Eastern German lender in 1990. As noted in 1991 by Thomas Gilrich on East Germany's integration into the European communities in the Heidelberg Journal, I quote, the Commission, however, assumed that the automatic extension would be affected by a norm of community law, not further specified. Thus it was not compelled to deal with the question as to whether and how far the present international law of succession recognizes the principle of territorial flexibility. Since all the member states as well as the GDR were agreed on the mode of integration, the international law problem simply did not arise. Of course, we may hope that for EU lawyers international law might come to be seen as more than simply a problem. But if accession is governed exclusively by EU law, there's a strong indication that for instance withdrawal from the EU of a European territory of a member state could also be governed nearly entirely by EU law. To conclude, as an EU and international lawyer, I support the direction of James's and Allen's intellectual project in this opinion. It underlines the importance of negotiation and the principle of loyal cooperation which is applicable to all parties in this case and is to be applauded in the sense. While the nuance that I've attempted to signal in this brief commentary might further strengthen it, their overall conclusions are probably not wrong. In any event, they're certainly useful for an important public debate. Thank you very much. Thank you. I'm going to focus on a caveat that the opinion mentions at paragraph 167 and also at paragraph 184. Namely at paragraph 167 it is acknowledged in the opinion that the rights of all current EU citizens might lead the European Court of Justice to take a different approach. I.e. not judging the effect of Scottish independence purely on the basis of international law alone. And at paragraph 184 the opinion says, and this is an important caveat, that this of course would only affect the position of Scotland within the EU legal order, but that would matter a lot for Scotland. So leaving aside the questions which I think have been very comprehensively addressed in the opinion of the effect of Scottish independence under international law such as admission to the United Nations. Let me focus on two questions. The first one is Scottish membership in the European Union. Now I agree with the opinion that the United Kingdom, the rest of the United Kingdom, would likely be regarded as the continuator state of the UK as presently configured. Scotland is unlikely to be automatically a member of the European Union. Though I do think, and I think on that point the opinion is perhaps more pessimistic about the possibility, the probability of the European Court of Justice becoming involved, that if the Court of Justice were to be confronted with a question about the effect of Scottish independence it would also apply European Union law. The Vienna Convention on the Succession of States in respect of treaties to which the opinion refers in article 4 refers back to the internal law of the international organisation. Now there are some questions whether the convention applies to a structure such as the European Union, but even if it does there is a reference back to the internal law of the international organisation. Even if that law is perhaps silent on this question and even if there is no precedent, the Court of Justice is likely to apply also European Union law. Now what I found particularly interesting about the opinion is that there is a distinction, the analysis differs with respect to the European Convention on Human Rights. So the European Convention of Human Rights, the prediction is, is likely to continue to apply in respect of newly independent Scotland, even though Scotland would have to re-exceed the opinion says to the Council of Europe. Now I think it is quite likely in the case of Scottish independence that Scotland, assuming that Scotland would have to reapply, would have to apply for EU membership. Fundamental rights guaranteed by the European treaties and the economic freedoms under the treaties would also apply based on similar reasoning to all those who currently benefit from them. So I think in this respect, and again I think here the Court of Justice is likely to become involved at some stage and under a stage where it still matters for the outcome, in this respect Rockman style arguments are likely to come into play. The Court of Justice of the European Union is likely to be reluctant to deny the benefit of fundamental rights and economic freedoms guaranteed by the treaties to all those who currently enjoy them as a result of a reconfiguration in the political setup of a European Union member state. And I think international law itself on the question of nationality has been changing certainly the 20th century as a result of the human rights revolution. There is increasingly a shift away from identity conception of citizenship to one focusing on rights and the European Union legal order has gone further still in this respect. Writing more than 80 years ago the Harvard research in international law looking at nationality in international law said the following and I quote. The meaning and import of nationality have changed with the changing character of states. It that is nationality may acquire a new meaning in the future as a result of further changes in the character of human society and developments in international organizations. What better example than to think of the European Union and it is difficult to see how the Court of Justice would not take this into account if it were to decide cases involving Scottish independence.