Scottish Independence Insta-Symposium: The International Legal Significance of the Scottish Independence Referendum–A Long View

by Tom Sparks

[Tom Sparks is a PhD Candidate in Law at the Durham University School of Law and member of the ERC-funded “Neo-Federalism project.”] 

We have been repeatedly told that the Scottish referendum of the 18th of September  is an historic moment, and it surely is.  As a matter of international law, however, it may be that the most significant decision in the Scottish independence saga has already been made. On the 15th October 2012 an agreement was concluded between the United Kingdom and Scottish Governments (The Edinburgh Agreement), by which the UK Government agreed to delegate authority under s.30 of the Scotland Act 1998 such that the Scottish Parliament would be competent to pass legislation on an independence referendum.  Paragraph 30 of the Memorandum of Agreement stated that: The United Kingdom and Scottish Governments […] look forward to a referendum that is legal and fair producing a decisive and respected outcome. The two governments are committed to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom. Although it appears unlikely that the Edinburgh Agreement has legal force either domestically or internationally, it is significant because it constitutes a political recognition that the question of whether Scotland should become an independent State  .  Moreover, it recognises that the independence decision is a decision that the people of Scotland have the right to make, and indicates that both Governments will abide by the outcome.  The importance of these statements lies in their value as (political) precedents – something which can be best appreciated by looking to the history of self-determination. Self-determination has always been a controversial concept. From its earliest days it has been seen as deeply subversive, but it is at once more radical and more modest that is often appreciated.  In the first place, although self-determination is intimately connected to secession, the two are not synonymous.  I suggest self-determination claims may be subdivided into four categories: political self-determination (often called ‘internal’), secessionary self-determination (‘external’), remedial self-determination (whereby a serious and prolonged denial of political self-determination results in a right to secede), and colonial self-determination (a category sui generis because of the political context).  In its most common incarnation, political self-determination, it is an internal concept that refers to the right of the people of a State (i.e. the entire populace of a pre-defined territorial entity) to determine their form of government.  So commonplace is this political form, that the ICJ in its East Timor decision declared self-determination ‘one of the essential principles of contemporary international law’, and stated that:

In the Court’s view, [the] assertion that the right of people to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character, is irreproachable. (Paragraph 29)

It its political form, the concept of self-determination represents a recognition of what may loosely be described as popular sovereignty, and serves as a guarantee of the principle of non-interference. Simultaneously, however, self-determination represents a claim on behalf of the people to an authority as of right superior to the government of a State, and even a claim on behalf of a minority to an authority as of right superior to the (sovereign) power of the State itself.  Both claims are deeply irreverent, striking as they do at the legitimacy of the existing power structures of the State.  Typically, therefore, although political self-determination has now been accepted as ‘one of the essential principles of contemporary international law’, the concepts have a long and violent history. Self-determination’s voyage from radical and dangerous concept to accepted tenet of international law begins with the American Declaration of Independence.  In 1776 the Continental Congress of America adopted the Declaration, stating that ‘these United Colonies are, and of Right ought to be Free and Independent States’.  Following a destructive war, the states’ independence from Britain was confirmed in 1783 with the signing of the Treaty of Paris.  Although the declaration effected the secession of the United States, the document itself speaks in terms of remedial self-determination, and thus represents a powerful claim to a right to political self-determination on behalf of the territories.  The Declaration holds that, in order to protect the ‘unalienable Rights’ of man, ‘Governments are instituted among Men, deriving their just powers from the consent of the governed’.  Further:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundations on such principles and organizing its powers in such a form, as to them shall seem most likely to effect their Safety and Happiness.

The principles expressed in the American Declaration of Independence were echoed in the Declaration des Droits de l’Homme et du Citoyen, of 1789.  Like the American Revolution, the French Revolution espoused a philosophical conviction that ‘[m]en are born and remain free and equal in rights.’   Like the American Revolution, the French Revolution  recognised the principle of popular sovereignty: ‘The principle of any Sovereignty lies primarily in the Nation.  No corporate body, no individual may exercise any authority that does not expressly emanate from it.’  And as with its American counterpart, the French Revolution of 1789 represents an acceptance and application of the principle of political self-determination: that the legitimacy of the form of government derives from the will of the people, and that the People, as a corporate entity, has the right to alter that form of government if it has become inimical to their interests or wishes. The revolutions are, and remain, precedents  – in both the legal and political sense.  Of course, they had no legal force in the 18th Century – at that time this idea, that the people can depose the ruling power, was even more controversial than the idea that minorities can break away from a State is today – nor for many years afterwards.  But they have subsequently acquired legal force.  Political self-determination has been enshrined in the Charter of the United Nations (Art.1(2)), and the common first Article of the ICCPR and ICESCR (Art.1(1)), and has evolved into a norm of customary international law of erga omnes status (East Timor).  It is not possible, here, to review the whole progress of the concept – naturally the revolutions were not, in and of themselves, sufficient to generate a legal norm.  But it was this first step that was the most significant: it marked the shift in perspective that begun the slow process towards norm-formation.  As Cassese opines, the revolutions

[M]arked the demise of the notion that individuals and peoples, as subjects of the King, were objects to be transferred, alienated, ceded, or protected in accordance with the interests of the monarch. (Antonio Cassese, Self-Determination of Peoples: a Legal Reappraisal (Cambridge University Press 1995) 11.)

The significance of the Scottish referendum, similarly, lies in its value as a precedent.   The Edinburgh Agreement is, as commented above, a recognition that the independence decision is a decision which the people of Scotland have a democratic right  to make, and that it is a decision to be made by them alone.  It also politically binds the Governments to respect the result of the referendum.  In short, it represents an acceptance, in this instance, by the United Kingdom of the right of the Scottish people to secessionary self-determination.  Irrespective of the outcome of the vote, the Scotland precedent puts pressure on other governments to grant similar referendums to secessionist movements in their own territories.  At present that pressure is only political, but it is entirely conceivable that, should other States follow Britain’s lead, a new norm of customary international law will begin to emerge. Scotland is not a flash in the pan. The question of secession will surely crop up again, and again in years to come (see, for example, Catalonia, and Iraqi Kurdistan).  The reaction of the States concerned, and the wider international community, may mark a paradigm-shift in international law.  It remains to be seen whether Scotland will be secessionary self-determination’s 1776, but we’ll have to wait longer for that result.

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