September 2014

Will There Be a Scottish Precedent?

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.