Tuesday 26 July 2022

The whole SNP argument depends on misunderstanding international law


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.