I thought that you might do that, convener, although the question is for everyone.
The answer to the question of who would decide is a matter of international law and is not up for negotiation. Professor James Crawford, a professor of international law at the University of Cambridge, and Professor Alan Boyle, a professor of international law at the University of Edinburgh, have provided a full analysis of the question, which the United Kingdom Government commissioned and published in full as part of the first of its Scotland analysis papers. I commend that analysis to everyone who is on the committee.
The analysis of public international law in that legal opinion has never seriously been questioned by anybody. That analysis is that, in the event of a yes vote in September, under international law Scotland would become a new state and the rest of the United Kingdom would become the continuator state. Why is that the case? There is a range of reasons.
That is what happened in 1922, when the Irish Free State was created. It was a new state in international law, while the United Kingdom of Great Britain and Ireland became the United Kingdom of Great Britain and Northern Ireland. It is also what happened when the Soviet Union collapsed—Russia was the continuator state.
That is not what happened in Czechoslovakia; the Czech Republic and Slovak Republic were both new states and Czechoslovakia was dissolved. Why would that not happen in the UK? It would not happen for a range of reasons, the most important of which is that the vote will take place only in Scotland. It is a decision in Scotland about whether Scotland should stay in or leave the UK. It is not a decision of the UK about whether the UK should be dissolved and reconvened into fresh states. If this was a UK-wide referendum about the future of the union, the legal implications might be very different, but it is not a UK-wide referendum. As we all know, the referendum is taking place in and made in Scotland—I think that that is the phrase that has been used.
The decision in the referendum is on whether Scotland should stay in or leave the UK. The UK’s international legal status will be unaffected by the referendum result. If there is a no vote, the UK will subsist. If there is a yes vote, the UK will subsist, albeit—tragically, in my mind—without Scotland, which plays a massive role in British life.
That is the position in international law. I understand that the Scottish ministers have said that they do not accept that position, but they have not explained in international legal terms the grounds on which they do not accept it. I think that that is because there are no grounds on which the position can credibly be challenged as a matter of law.
What follows is not quite what Mr McGrigor said. The UK’s public institutions would automatically become the public institutions of the rest of the UK—for example, the UK Parliament would become the Parliament of the rest of the UK and the UK Supreme Court would become the Supreme Court of the rest of the UK. A point that is material to our conversation this morning is that, as Alyson Bailes said in her first contribution, the UK’s diplomatic corps, embassies and international relations—and the machinery that delivers all that—would become the diplomatic corps, embassies and international relations of the rest of the UK.
The public institutions of the UK would become the public institutions of the rest of the UK. It is important for people to understand that that would not be a question for political negotiation in the event of a yes vote; it is a matter of law.
What would have to be negotiated in the event of a yes vote is the equitable apportionment of the assets and liabilities. A distinction must be borne in mind between institutions on the one hand and assets and liabilities on the other.
The assets and liabilities of the UK would fall to be apportioned equitably between the rest of the UK on the one hand and an independent Scotland on the other. How that equitable apportionment would be calculated is a matter of politics, not of law. There would be a complex, difficult and tense political negotiation, and there would inevitably be trade-offs between particular assets and liabilities.
There has been a lot of confusion about that, but the principles of international law are actually fairly basic. It is clearly and authoritatively set out in the legal opinion of Professors Crawford and Boyle, but I am afraid that the independence white paper gets it wrong, as I say in paragraph 2 of my written evidence. Page 211 of the white paper states:
“Scotland will be entitled to a fair share of the UK’s extensive overseas properties ... allowing us to use existing premises for some overseas posts.”
That assertion has no basis in law. In the event of independence, the United Kingdom’s diplomatic network, and its 267 embassies, high commissions and consulates in 154 countries around the world, would become the diplomatic mission of the rest of the UK, as the United Kingdom has correctly stated in its Scotland analysis paper on EU and international issues, published in January 2014.
That is not a negotiating position or a matter of politics or of opinion; it is a matter of law. It is unfortunate that the independence white paper—the most important document published in the lifetime of the Scottish Government—proceeds on an inaccurate footing as a matter of international law. Either legal advice was not taken or it was not understood.