The 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 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.