Nicola Sturgeon’s twin track approach to achieving Scottish
independence either by means of an unofficial advisory referendum without the
UK Government’s permission, or by means of turning a General Election into a de
facto referendum depends on the idea that the Scottish Government is ultimately
acting in accordance with international law. She hopes that the British
Government will finally be shamed by its actions appearing to be undemocratic
and that other states will become sympathetic to Scotland seeing the justice of
her case. But this depends on a misunderstanding of international law.
It is widely understood in Scottish nationalist
circles that there is in international law a right to self-determination and
that this right applies to Scotland. But this is a mistake as the following example
shows.
The Canadian Supreme Court was asked in relation to Quebec whether there was a right to secession in international law and concluded in 1998 that there was not.
The Court decided that
It is clear that
international law does not specifically grant component parts of sovereign
states the legal right to secede unilaterally from their "parent"
state – 111.
Quebec is obviously a component part of a sovereign
state called Canada. But Scotland is equally a component part of a sovereign state
called the United Kingdom. To suppose that this were not the case and that
Scotland were already a sovereign state, would be to suppose that Scotland were
already independent.
The Court also decided that
a right to secession only
arises under the principle of self-determination of people at international law
where "a people" is governed as part of a colonial empire; where
"a people" is subject to alien subjugation, domination or
exploitation -- (3) Question 2
The international law of self-determination as it has
developed by means of such rulings has made it clear that the right applies
only to colonies or places that are occupied. But in no reasonable sense can either
Scotland or Quebec be described in this way. The soldiers who are based in Scotland
are most frequently Scots. Scotland is not a colony ruled by the UK, but rather
part of the UK.
The point is made further in this way
The right to external
self-determination, which entails the possibility of choosing (or restoring)
independence, has only been bestowed upon two classes of peoples (those under
colonial rule or foreign occupation), based upon the assumption that both
classes make up entities that are inherently distinct from the colonialist
Power and the occupant Power. --131
So, the only argument Sturgeon can make to
international opinion is that Scotland is a colony under British occupation and
that it is inherently distinct from the UK. But there have been seven Prime
Ministers who were born in Scotland and Scots have played a full role in
politics and all other aspects of British life. More Scots live in England than
English people in Scotland so it is not obvious who is colonising whom.
The Court points out
The various international
documents that support the existence of a people's right to self-determination
also contain parallel statements supportive of the conclusion that the exercise
of such a right must be sufficiently limited to prevent threats to an existing
state's territorial integrity or the stability of relations between sovereign
states. –127
What this means is that even if the right of
self-determination applied to Scotland it would have to be balanced by the UK’s
right to maintain its territorial integrity. If Sturgeon thinks that she has a
mandate for secession if she wins either an election to the Scottish Parliament
or a majority in a General Election, this would have to be balanced by the
British Government having the right to seek a mandate across the whole of the
UK for the territorial integrity of the UK.
The Court argues
A state whose government
represents the whole of the people or peoples resident within its territory, on
a basis of equality and without discrimination, and respects the principles of
self-determination in its own internal arrangements, is entitled to the
protection under international law of its territorial integrity. –130
Quebec and Scotland already have self-determination. We
have equality with all other British citizens with regard to parliamentary
representation and indeed have in addition a devolved parliament which controls
many domestic issues and is allowed to diverge from the British Government when
it chooses.
Scotland cannot in international law argue that it is undemocratic
that we vote for the SNP but end up with a Conservative Government, because Scottish
voters are not discriminated against. We have the same opportunity to elect MPs
as everyone else in the UK. The fact that we don’t vote for a Tory Government
or any other party is not undemocratic as this is a feature of all democracies.
The Canadian Supreme Court’s ruling about the
international law of secession together with the Clarity Act that followed destroyed
the threat of secession in Canada. But it has also significantly clarified the understanding
of international law with regard to self-determination in the years since. No
one nowadays thinks that parts of democracies have a legal right to secession
in international law.
This might seem to be all very theoretical, but it is
actually crucial. Many Scottish nationalists hope that an independent Scotland
could join the EU. But there are two conditions for this.
1 The former UK cooperates with Scotland’s membership
application to the EU.
2 Scotland achieves independence legally and in such a
way that all EU member states recognise that it was done legitimately and
fairly.
If the former UK argues in the court of international
opinion that Scotland left the UK illegally and without the consent of the
British Government then there is zero chance that Scotland would get into the
EU. So too if the SNP Government were to achieve independence by means of
actions that were deemed too uniliteral and illegitimate then that too would
affect its application to the EU.
But this is the SNP’s fundamental problem. If the
right to self-determination applied to places like Scotland, then it might get
a bit of leeway if it bent the rules. But the precedent set by the Canadian Supreme
Court suggests that the SNP does not have the law on its side, but instead the
UK has the legal right in international law to defend its territorial integrity.
The SNP has no right in international law to expect either
an unofficial referendum or a de facto referendum to lead to independence,
because it does not have the right to independence unless the British Government
consents to it.
So long as the British Government stands firm there is
nothing the SNP can do and international opinion fearful that a dangerous
precedent will be set would agree with the UK.
Scotland already has internal self determination because
we live in a democracy with the same rights as everyone else. For this reason,
Scotland has no right to external self-determination or secession.
In the UK there is a political tradition of being willing
to grant a referendum on independence under certain circumstances, but it is no
more than that. Traditions change. There is no law saying a second referendum
must be granted if the SNP wins this number of seats or that number of votes,
or even that there was a change in material circumstances (i.e., Brexit). That
is just something the SNP made up.
This then is the difficulty for the SNP. It has
already gone quite far down the unilateral route with an unofficial referendum
and a proposed attempt to hijack a General Election. But the SNP absolutely
depends on achieving independence legally and with the consent of the former UK
and the recognition of the international community. Without these the SNP doesn’t
have close to a majority. Many, perhaps most SNP voters would reject the chance
of independence achieved unilaterally or illegally. But there is only so far
you can push the unilateral approach if you want the cooperation and consent of
the former UK.
Stray too far down the unilateral approach and you end
up with Catalonia gaining zero support from the EU or indeed any EU member
state. After all there is not a single EU member state and almost no countries in
the world that think that the right of self-determination applies to places like
Catalonia or indeed Scotland. It is for this reason international law says the
right of self determination does not apply to Scotland. The SNP’s grievances
are founded on a misunderstanding of the law.
