Will There Be a Scottish Precedent?

by Chris Borgen

Since Kosovo’s declaration of independence there has been talk about whether there is a “Kosovo precedent,” and, if so, just what does it mean. The International Court of Justice’s advisory opinion
captured the imaginations of national parties throughout Europe. For example, Aitor Estaban, a representative from Spain’s Basque Nationalist Party (PNV) said that “the main consequence is that Spain cannot keep saying that the international rules don’t allow for a split of the country for a new Basque independent country into the European Union. So I think that should be already over and that’s good news for us.” (See H. Jamar & M. K. Vigness, ‘Applying Kosovo: Looking to Russia, China, Spain, and Beyond After the International Court of Justice Opinion on Unilateral Declarations of Independence’, 11 German Law Journal (2010) 8, 913, 925.)

Will we now add a “Scotland precedent”  as well as  a “Kosovo precedent?”  Today’s referendum in Scotland has been described as a bellwether or a “canary in the coalmine” signaling the future of nationalism within the European Union. There are currently twenty to twenty-five “significant” separatist movements across Europe. (See, Bruno Coppieters, ‘Secessionist Conflicts in Europe’, in D. H. Doyle (ed.), Secession as an International Phenomenon: From America’s Civil War to Contemporary Separatist Movements (2010), 237, 247.) Many writers seem to assume that as Scotland goes so does Catalonia, the Basque Countries, Padania, and any number of other parts of EU countries with their own national aspirations. But is this accurate? Would a “Yes” vote—or even just the fact that there is a vote—form some sort of “Scotland precedent?”

First, what do we mean by “precedent?” At times, commentators  use the word to mean, interchangeably, the strict legal sense of a legally binding decision and the looser political sense of a persuasive analogy that can be drawn from a similar case. What role may Scotland’s referendum have in regards to the nationalist movements elsewhere in the EU? Let us consider the number of legal and political factors at play in just one example: Catalonia.

At first blush, the situation in Catalonia may seem similar to that in Scotland. As a political entity, Catalonia has some similarities to Scotland (if slightly larger). As Bloomberg News explains:

Catalonia is a region in the northeast corner of the Iberian peninsula with about 7.5 million people compared with the 5.3 million who live in Scotland. Its 193 billion-euro economy is about the size of Finland’s and compares with the 150 billion-pound gross domestic product of Scotland.

Like Scotland, Catalonia has a distinct linguistic and national heritage. It has a special status within the Spanish state with greater autonomy and it has a population that has been seeking greater levels of independence, if not full separation and sovereignty. And the regional government of Catalonia has scheduled a referendum on independence for this coming November. For more on the history of Catalonia, see this.

Despite these similarities, most international lawyers could see quickly that a domestic referendum in the UK does not provide binding legal precedent for whether or not a domestic referendum in Spain would actually grant independence to Catalonia. Rather, the issue is one of political precedent: persuasive strength. In an argument supporting Catalonia’s referendum, Carles Boix and J.C. Major wrote in Foreign Affairs that, in their view:

International opinion tends to support this referendum, just as it has supported the one that will be held in Scotland this September or those that took place in Quebec a few years ago. Indeed, finding out where everyone stands would appear to be a necessary step to make an informed decision on how to proceed. And yet the Spanish government has not granted the Catalan authorities the power to conduct what would be a non-binding referendum — something that would be perfectly legal according to articles 92 and 150.2 of the Spanish constitution.

But even if one is to argue that Scotland’s referendum is persuasive authority, one first needs to consider whether the analogy is a good one. And, for that, we need to consider once again the legal and political situation. Scotland’s referendum is part of a negotiated process and its results will be accepted as dispositive by the central government. This is an almost unique case and quite different from most other referenda. By contrast, the Catalonian referendum is not sanctioned by Spain’s government in Madrid. The very fact that it is being undertaken is highly controversial and Madrid rejects that it would have any weight as a matter of Spanish constitutional law.

While there has been a process of devolution of power in the UK, the post-Franco regionalism in Spain has a different constitutional framework. Article 2 of the 1978 Spanish Constitution states:

The Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible homeland of all Spaniards; it recognizes and guarantees the right to autonomy of the nationalities and regions which make it up and the solidarity among them.

While the Basque country, Catalonia, and Galicia were recognized as “historical nationalities” that had a fast track to become (and did become) Autonomous Communities within the Spanish state, The Economist noted in 2007 that none of their charters

give any right of secession, much as some Basques and Catalans would like one. Words are carefully chosen: Andalusia is a ‘nationality’, not a ‘nation’. The Catalans’ charter admits that, although they think of themselves as being a nation, the rest of Spain does not.

And, while a non-binding referendum may be more easily authorized, the constitutional and political bars for a binding referendum are quite high. Der Spiegel recently explained that:

A binding referendum could only be made possible were the Spanish parliament to push through a constitutional amendment. But 86 percent of the lawmakers in Madrid have already rejected the idea. A similar plan by the Basque government was rejected nine years ago. “I will not allow you to hold the referendum,” Prime Minister Rajoy recently told Catalan leader [Artur] Mas.

This nearly complete rejection by Madrid of Catalonia’s attempts to engage in a process of reconsidering its status cannot be overemphasized. Recalling the question of whether there is a “Kosovo precedent,” keep in mind that Spain was one of the five EU States that did not recognize Kosovo.  In its first written submission in the advisory opinion proceedings, Spain focused on sovereignty and territorial integrity and requested that the ICJ conclude that the declaration of independence was not in accordance with international law because it ignored Serbia’s right to sovereignty and territorial integrity.  (Written Statement of Kingdom of Spain on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (April 2009), 55-56). Moreover, in subsequent written comments, Spain sought a statement that the acts of sub-state actors, such as independence movements, could be held to violate international law:

the fact should not be overlooked that a violation of the principle of territorial integrity through actions carried out by domestic actors with the State will inevitably bear international consequences […] Spain considers it untenable to reduce the principle of territorial integrity to a principle operating at an exclusively international level.

(Written Comments of the Kingdom of Spain on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (July 2009), 3-4)

Although the ICJ ultimately disagreed with this contention, this gives a sense as to Spain’s perceptions regarding separation.

So, how persuasive would a “yes” vote in Scotland be in Spain? Supporters of the Catalonian referendum argue that Scotland’s vote can be used as an example of how the Madrid government should act. For them, the point is not whether the result of the Scotland referendum is “yes,” but rather that there was a referendum, whatever the result. Even if the result of the Scottish referendum is “no,” the fact that a referendum took place may strengthen the resolve of those seeking a referendum in Catalonia. In part the issue here may not be specifically independence, but political voice. According to Boix and Major, while polling shows that somewhere around 50% of Catalans desire independence (others may argue that that estimate is high), 4 out of 5 favor holding a referendum on the question.

In the end, the fact of a “yes“ or “no“ vote may not be the issue so much as there was a vote. Other national groups may ask: if Scotland can vote to determine their political future, why can’t we?
Like Kosovo, the result here will not be as a binding legal precedent (an overused word) but rather as a symbol. In the case of the Kosovo advisory opinion, its symbolic value may actually be greater than the relatively modest legal results of the opinion itself. Symbols can come to mean whatever their interpreters claim them to mean, even if their underlying legal texts are relatively modest or historically contingent.

But, whatever the broad symbolic power of legal acts such as advisory opinions or referenda, issues of national identity are intensely local and based on the the specific history of each situation. It is one of the most difficult areas about which to draw general abstractions.  Scotland’s referendum is unlikely to be an accurate gauge of nationalism in other countries in the EU. Nor will it be, strictly speaking, legal precedent for those other national claims.

How persuasive the symbolic value of Scotland’s referendum will be, in the face of different national histories and situations, remains to be seen. All politics is local, and none more so than the politics of self-determination.

For more on this topic, please see my 2010 article From Kosovo to Catalonia:Separatism and Integration in Europe, in the Goettingen Journal of International Law, Vol. 2, No. 3 (2010).

http://opiniojuris.org/2014/09/18/will-scottish-precedent/

One Response

  1. Response…I am highly interested in this topic, though the verdict so to speak has already come out Scotland will not leave. Its interesting how the global community seems to go through phases of more wanting to be united as a global unit then not wanting to join together (such as the conflicts with the EU). I see both Scotland and Catalonia being in very similar boats. Dealing with years of history in wars and land disputes now finally wanting to be recognized as individual entities because of their historical nationalities. Though I believe at this time it is more of trying to make a statement then a serious move it makes me wonder if something similar would be possible in the USA with the Native American Nations? Would they be able to try to leave the United States completely?

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