Squeamish over Scottish independence

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Frayed UK flagThe prospect of a referendum on Scottish independence evokes one of the more interesting tensions in modern international law: that between the right to self-determination, on the one hand, and the territorial integrity of states on the other.

This column is not a political commentary on the merits or form of the Scottish referendum. The issue does, however, highlight the contradictions in international law around the right to secede.

During the 20th century, following US President Woodrow Wilson's post World War I pronouncements, there was a growing recognition that peoples have a right to 'self-determination'. This was generally discussed in the context of decolonisation: a process which began tentatively after the First World War and snowballed after the Second.

It culminated in the recognition of this right in the UN Charter (Articles 1.2 and 55). The International Covenant on Civil and Political Rights also states (Article 1.1) that:

All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Exactly what the ambit of this right is, however, is less easily stated.

In the colonial context, there seems to have been little difficulty seeing it as a straightforward right to secede. Usually, colonisers and colonies were easily separable entities with vastly differing languages, histories and cultures. Self-determination fitted neatly with the traditional concept of the 'nation-state' and there was therefore little difficulty in arguing for full independence for colonies.

States have, however, been much more squeamish about permitting breakups of established states. Partly, this has been a fear of states fragmenting into ever-smaller and less coherent units.

The African Union, for instance, demands that the (highly artificial) colonial boundaries of its members remain intact for fear of resuscitating dormant ethnic conflicts, such as occurred in the horrific Biafran War of the late 1960s. The UN Charter which mentions self-determination also protects the principle of territorial integrity of its members (Article 2.4).

Who or what constitutes a 'people' for the purposes of self-determination has, in any event, been very hard to define. People have argued for separation on grounds of ethnicity (the Basque conflict), religion (the Bosnian war), political difference (the Northern League in Italy) or a mixture of the above (compare the history of Ireland).

Multi-ethnic post-colonial states, especially those with large indigenous populations, have been particularly reluctant to concede anything like a general right to secede.

Current international law thinking reconciles the tensions between self-determination and territorial integrity by declaring that there is an 'internal' right to self-determination (the right to one's own language, culture, religion and the like) which must be enjoyed within existing state boundaries. It is only when this right is frustrated that a right to 'external' self-determination (i.e. secession) arises.

In short, territorial integrity 'trumps' self-determination in the absence of exceptional circumstances (such as decolonisation or gross human rights abuses).

The theory, however, gets rather murky in practice and mired in politics. States which recognised Kosovo's declaration of independence from Serbia on the basis of the right to self-determination did not extend the same recognition to Abkhazia and South Ossetia's declarations of independence from Georgia, despite the obvious parallels.

(Each case involved a region with a large majority in favour of independence. The majority had historically faced discrimination and had declared independence following a war in which a major world power had effectively carved the region out of the larger country.)

So where does all this leave the Scots example? Scotland is certainly no colony. Nevertheless, it was historically independent of the rest of the UK and, crucially, was merged with it by treaty (the Acts of Union of 1706, passed by the English Parliament, and 1707, passed by its Scottish counterpart).

Scotland retained a measure of independence even before devolution began in the mid-1990s – it has always kept its own legal system and cultural identity.

There is therefore no question of creating a new state from scratch (as there was in Kosovo and the Caucasus). What has been done by agreement can, in principle, be undone the same way. It seems that Westminster agrees.

Whether or not this will actually happen, of course, will ultimately depend on what the Scots themselves decide. 


Justin GlynJustin Glyn SJ is a Jesuit scholastic studying theology and philosophy in Melbourne. He previously practised law in South Africa and New Zealand. He completed a PhD in international and administrative law in 2008. 

Topic tags: Justin Glyn, Scotland, self-determination

 

 

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Existing comments

Political independence is one thing. Economic independence another. Does a seceding state have any claim for economic or financial support from the larger state or colonising state?
graham patison | 17 January 2012


A difficult problem ,well exposed in your article .It would seem unlikely that , even if the Scots vote for independence , it will occur before the North Sea oil and gas resources are depleted .So an important support for the British economy would remain , and the Scots would be left to find other means to sustain their economy . Maybe they could sell some of their abundant and pure water instead of oil and gas.
Barry O'Keefe | 17 January 2012


The North Sea resources have already been run down, with most gas now coming from Siberia.

The English overlords wasted every penny of the wealth and, unlike our Scandinavian cousins, never thought about 'after the goldrush'.

The colonial mentality takes a long time to reduce, after all.

Presumably, there would be a social cleansing of Scotland too, with the stolen lands being returned to Scottish ownership from the thieves of England.

The Queen can build herself a castle in Liverpool or Brum if she wants to escape from London and Windsor, and we'll take our land back from her too.
Andy Fitzharry | 17 January 2012


Interesting to ponder why our Australian flag should portray this history of ancient divisions as an expression of who we are as a nation. Your illustration shows how the British union flag pushes the cross of St.Patrick out of kilter to avoid destroying the integrity of that of St.Andrew. Remnants of ancient feuds and competition in those isles of conflict. Nothing to do with us. It doesn't reflect who we are. We need a republic and a flag of our own.
John O'Donnel | 17 January 2012


You are plain wrong to state that Scotland was 'historically independent of the rest of the UK' - Scotland was a sovereign independent nation, as was England: 'UK' didn't exist, nor did 'Great Britain'. The Treaty of Union was an international treaty between 2 states (brought about by massive bribery & military intimidation), creating one single State, but with the countries of Scotland & England continuing. Either of the nations could rescind the Treaty with both returning to the situation prior to 1707. No succession, no English constitutional prerogative. As you say, it will be for the Scots to decide. Soar Alba.
Ron Wilson | 18 January 2012


Graham Patison I do not understand your post. Scotland has been subsidising the rest of the UK for years.These are based on Treasury figures and do not take into account all the hidden subsidies that the SE of England is handed, under the table.
James McLaren | 18 January 2012


I note some of your commentators claim North Sea Oil is about to run out. In fact the forecast is for another 50 years continued extraction - so I think we'd have a wee bit of time to generate alternative forms of income. http://www.dailymail.co.uk/news/article-1024205/North-Sea-oil-half-century.html In fact, renewable energy projects - wind & tidal power mainly - are being rapidly developed in Scotland. http://www.snp.org/media-centre/news/2011/dec/scotland-could-be-world-leader-new-energy As far as the legal mechanics are concerned, all that would be required is an instruction by the people of Scotland (through a referendum) to the Scottish Parliament to repeal Article 3 of the Act of Union 1707 which provided for the creation of the one, unified, parliament of Great Britain. http://weegiewarbler.blogspot.com/2012/01/biggest-con-in-history.html
Robert Leslie | 18 January 2012


An interesting take on the debate dominating Scottish politics. Two other examples of non-violent breakaways should be remembered - Slovakia breaking with what became the Czech Republic and Montenegro (with a population less than that of Glasgow) breaking with Serbia. It will require little to cut the umbilical cord with our neighbour and will act as a catalyst for renewal in Scotland, which was after all the site of the Enlightenment, and breathe life into an England uncertain of its identity. It would be good if Australia, with its many links to Scotland, could show a little more interest in a positive way in what is happening in Scotland and give the movement towards independence the support it deserves.
Duncan MacLaren | 18 January 2012


An additional example, surprisingly not mentioned as it is on our doorstep, is East Timor or Timor Leste as it is now known. Once part of the Indonesian Empire, which is a cauldron of wouldbe breakaway states from Sumartra to the Celebes. However one place near to Australia of continuing concern is the Indonesian provinec of West Papua, which was seized by force by Indonesia against the wishes of the indigenous population, followed by a sham act of choice to legitimize the seizure. It has been a source of unrest ever since with locals hoisting their national flag, the "Morning Star", and repeated atrocities by the Indonesian military. Mass migration by Javanese into the territory has been an instrument of policy to deny the West Papuan people the power to assert their independence. One significant difference in this situation is that the indigenous west papuans are 'black' Melanesians, significantly different from the rest of the populations of Indonesia. What chance of secession here, especially as the island is rich in mineral resources?
Peter Russell | 23 January 2012


I completely disagree with the right of self-determination. It came into diplomatic parlance during the peace treaty negotiations after WW1. Woodrow Wilson who promoted the concept was a racist who favoured segregation of black citizens of the US. It broke up the Austro-Hungarian Empire into Hungary, Austria, Czechoslavakia and bits of Yugoslavia, Poland and Romania. I think part of his motivation was the stem the flow of the lowly slavs and Jews to the US.

Nation-states created with a paradigm of a particular ethnic or religious group tend to relegate those citizens within its boundaries who do not exemplify the paradigm to second-class citizenship. Self-determination should only be pursued if it is not possible for a nation-state to treat all citizens equally in law regardless of ethnicity or religion.

The right of an individual to be free from discrimination on the basis of ethnicity or religion is much more vital than the right of self-determination.
David Fisher | 27 January 2012


.Unionist lies are spread that Scotland is subsidised by English taxes.if this was the case why did london claim seabed rights around Scotland the very same day the Scottish Parliament opened!and when thatcher heard of oil in north sea.the first thing she said was how do we keep the nationalists quiet. mr salmond has had ten years homework under his belt.while unionist laughed at him from sidelines, who iss laughing now!today support for full independence has risen to 51% and growing.because mr salmond is actually out there bring international companies to Scotland creating jobs in a tough environment.he has left unionistsclueless. independence is coming.
Derek Reynolds | 01 February 2012


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