A personal reflection on international law & Scottish referendum

Now that the people of Scotland have voted no in the 18th September referendum – a process that can be said to be a marvellous exercise of democracy, with a turnout of almost 85% – the inevitable period of reflection, soul-searching and, to some extent, recrimination follows. This short blog seeks to contribute to this discussion in one particular area; namely the consequence of the referendum for international law and the international community.

International law was a background factor (even if it wasn’t recognised as such) in much of the debate: would Scotland be able to use the pound as a currency and, of course, under what conditions would Scotland join the European Union? Indeed, the UK sought and published, specific legal advice on what nature Scotland’s independence might take (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79408/Annex_A.pdf).

I want to raise a broader question; was the recent Scottish referendum an instance of a people seeking to exercise their right in international law to self-determination, or was this an attempt at the secession of one part of a State’s territory which had the potential to cause wider – systemic – global instability? If one thinks this sounds alarmist, one need only consider the attempt in Catalonia to hold a referendum this November, and against which the full measure of the Spanish Government and Constitutional Court worked to suppress.

There is no doubt that all “peoples” – a notoriously difficult concept to define – have a right to self-determination, which has been taken to mean that they “freely determine their political status and freely pursue their economic, social and cultural development”. Historically, international lawyers have argued that self-determination as externally manifested through the attainment of independence was however limited to those situations when territories were under colonial rule or foreign oppression, thus providing the legal basis for the wholescale decolonisation that occurred post-World War II.

Even if one were prepared to extend this right to independence to areas within a State to include situations where a “definable group denied meaningful access to government to pursue their political….development” as the Canadian Constitutional Court did in 1998, as regards whether Quebec could legally secede from Canada, this would not apply to Scotland – as it didn’t apply to Quebec. Both enjoy significant political autonomy; ironically, in the case of Scotland more so since the Scotland Act 1998 was passed, which created the Scottish Parliament and Government, than at any point since the Act of Union in 1707.

To that extent, the Scottish situation is notably different from the situation in Kosovo, which through the armed support of NATO, secured separation from Serbia and eventually declared independence; an independence that has not been universally recognised – including from countries such as Spain and Russia, which have significant secessionist movements.

There is thus a tension at the heart of the international system; between the freedom of choice of peoples, on the one hand, and international stability, on the other. Though not without controversy – and with some hesitation – my own personal view is that Scotland had no right in international law to independence. Its right to self-determination is to continue to develop its own internal political processes still further, and while the UK continues to ensure Scotland has that political autonomy, Scotland has no legal right to secure independence.

But in this case, Scotland’s referendum was not a unilaterally sought expression of a right – as was Catalonia’s attempt to hold a referendum this November, before it downgraded it ‘consultations’ in the face of opposition – but rather it was based on an agreement between the UK and Scottish Governments. The 2012 “Edinburgh Agreement” between the UK and Scottish Governments, and subsequent Orders in Council taken thereunder, was fundamental to the legality of the referendum in both domestic and international law. This was no Kosovo or Catalonia; this was a situation where the government of the sovereign State (the UK) was agreeing to the referendum in part of its territory.

Much has been written as to whether David Cameron should have agreed to the referendum. My view is that the UK Government was right to support the holding of a referendum – to do otherwise would have been to ignore the democratic mandate of the SNP at the last Scottish elections and may have created internal instability within the UK constitutional system. However, by doing so the UK has inadvertently contributed to feelings of secession across the world; thus the strong reaction of many world leaders as the Scottish referendum date approached. Some might go so far as to say that by granting the referendum, the UK has undermined an unwritten political consensus between States not to jeopardise the centrality – the mythology – of the sovereign State.

“When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation”

So says the 1776 US Declaration of Independence. Whether Scotland had voted yes or not in the referendum, it seems to me that it was incumbent on both the UK and Scotland to have made a better case for the referendum internationally so as to uphold the principles of the democratic process on which it was being held. In doing so, it would recognise that other regions in the world would take a stance on the issue for themselves and their own peoples. The UK as a permanent member of the UN Security Council is particularly responsible for not contributing to wider instability. The UK and Scotland would have done well to have given more thought to “a decent respect to the opinions of mankind”.

Professor Duncan French, University of Lincoln

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