Scottish Independence Insta-Symposium: International Law Should Matter–Thoughts on the Proposed Scottish Secession

[Milena Sterio is The Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law and the Associate Dean for Faculty Enrichment at the Cleveland-Marshall College of Law.]

As many readers may already know, Scotland may soon become an independent nation.  Scots will vote in a September 18 referendum whether to secede from Great Britain.  The exact question that they will answer, in a yay or nay vote, is “Should Scotland be in independent country?” This post will analyze the legality of such proposed secession under international law, and will argue that international law should matter in secessionist disputes, and that international law could develop a norm containing a positive right to secession under certain circumstances.

First, any proposed secession can be analyzed from both a domestic as well as an international lens.  From a domestic perspective, the relevant question for any proposed secession is whether domestic law authorizes it.  In other words, does a domestic constitution or other kind of statute envision the possibility that one portion of a state will separate out to form a new state or join a third existing state. In the Scottish context, domestic law does allow for the possibility of secession – although the United Kingdom (UK) has no written constitution, the referendum is being held with the consent of the UK government, which, although it prefers if Scotland remained a part of the larger UK, has agreed to respect the results of the referendum.  Arguably, if the proposed secession is legal domestically, then international law does not matter, and the question of legality of the proposed secession from an international point of view may never be asked.  However, international law as a body of law governing inter-state relations should matter, because international law may be called upon in order to reserve an inter-state dispute over a secessionist issue.  Moreover, multiple international treaties and other rules exist on the subject-matter of statehood, state formation, and self-determination, which are all related to secession and may need to be analyzed in order to resolve a secessionist claim.  Finally, international law contains norms relating to the respect of any state’s territorial integrity; it seems logical that international law should be consulted at times when such territorial integrity may be at risk of being disrupted, through the process of secession.

This leads me to my second point, which is that international law when examined post-Kosovo may be analyzed as tolerating a limited right of secession.  Most scholars would agree that while peoples have a right to self-determination under international law, such a right does not lead to a positive right to secession. First, the right to self-determination had been interpreted for decades as only applicable in the decolonization context.  Second, the right to self-determination in most instances authorizes a people to exercise its right to internal self-determination, which is typically reflected in a right to form a regional government and/or have other cultural, linguistic, and religious rights respected by the mother state.  The right to self-determination, outside of the decolonization context, may lead to the secessionist type of external self-determination only in extreme instances where the mother state chooses to completely disrespect the people’s right to internal self-determination.   According to the Canadian Supreme Court in the Quebec case, scholars had argued that “when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession….” The Canadian Supreme Court went on to conclude that in the Quebec case, it was unnecessary to discuss this issue because the Quebecois rights to internal self-determination had been consistently respected by Canada. However, the Court’s acknowledgement of this possibility of secession, outside of the decolonization context and authorized by international law is meaningful and important, as it points to a growing discussion about the usefulness of developing a positive international law framework on secession

Additionally, recent events and state practice may contribute to a re-shaping of international law on secession.  All readers will remember that in 2008 the Kosovar Parliament unilaterally declared independence from Serbia.  Kosovo was recognized as a new state by multiple countries immediately, and was effectively able to secede from Serbia.  Can a new rule of international law on secession be derived from the Kosovo precedent? Possibly. While no new international law norms have been proclaimed either by treaty or customary law, and while the International Court of Justice has refused to seriously consider the issue of Kosovar secession, nobody can ignore the Kosovo “precedent.”  Several secessionist groups around the planet have already relied on Kosovo in order to legitimize their own secessionist quests.  The Crimean referendum has been compared to the case of Kosovo; secessionist governments of South Ossetia and Akbhazia have invoked the Kosovo precedent; so have various leaders of the Transylvanian, Transnitrian and Quebecois secessionist movements.  Importantly, most governments battling secessionist movements within their borders have refused to recognize Kosovo, such as Spain, Israel and Greece.  And international law scholars have grappled with the legality of the Kosovar secession.  All of this leads me to my third and final point.  It appears that states care deeply about secession, that states often rely on international law in order to (de)legitimize secessionist quests, and that recent state practice, post-Kosovo, may highlight the need to at least discuss the development of a positive right of secession under international law.

My third and final point is that while international law lacks positive norms on secession, a normative framework on secession would be extremely beneficial in evaluating future secessionist claims, in situations where domestic law is silent on secession (as many domestic laws are, for obvious reasons) and where internal warfare is on the brink of erupting or has already erupted.  Most secessionist movements are about territory, as Lea Brilmayer famously wrote several decades ago.  Secession and territoriality go hand in hand, and international law could and should develop to reconcile these two seemingly contradictory norms.  In the context of the proposed Scottish secession, this may not matter as much, because, as argued above, domestic law already provides for this possibility and because warfare is not likely any time soon.  However, in other Kosovo-like situations, international law could serve as a powerful conflict-resolution tool in reconciling the secessionist people’s quest for an independent state (read: territory) with the mother state’s desire to maintain its territorial integrity.  Some potential factors that an international law framework for secession could use include the examination of territorial history and sovereignty over the dispute region, as well as of the historical immediacy of the territorial claim asserted by the secessionist group, an assessment of the disputed territory’s ethnic composition, an evaluation of the mother state’s responsiveness to the secessionist group’s claims to autonomy, and an overall assessment of regional stability and security.  Because any secession destabilizes the territorial integrity of at least one state, leads toward the creation of a new state, and in all likelihood disturbs regional security, it seems fitting that secession should be an issue of international law.