The legal right of secession of states, outside of a situation of “classic” colonial occupation, has developed enormously in the last thirty odd years. South Sudan, Montenegro, East Timor, Eritrea, North Macedonia, Czech Republic, Slovakia, Georgia, Bosnia and Herzegovina, Slovenia, Croatia, Azerbaijan, Turkmenistan, Moldova, Tajikistan, Uzbekistan, Kyrgyzstan, Armenia, Kazakhstan, Lithuania, Latvia, Estonia and Ukraine are all amongst the new states recognised by the United Nations since 1991.
All of those involved secession from a larger entity. The notion that the right to self determination relates purely to the freeing of non-Europeans from European colonial rule plainly could not survive this onslaught of real world emergence to freedom by European and Eurasian nations. The international law jurisprudence has moved to acknowledge this, most notably summarised in the advisory opinion on Kosovo by the International Court of Justice.
23 nations born of secession in 31 years, all recognised by the UN, makes it plain there is a legal process in routine operation here. That Scotland wishes to become the 24th is not in any sense novel and unusual. Its right to do so is plainly established in international law. That is the basis on which the Government of Scotland should have been approaching the UK Supreme Court (if it approached it at all).
Yet we have had the astonishing spectacle of the Lord Advocate, Dorothy Bain, ostensibly arguing for Scotland’s right to hold an independence referendum, yet never once in a two day hearing asserting the right to self determination of the Scottish people under Article 1 (2) of the UN Charter.
I cannot get through to you how astonishing that is. Let me put it this way. If the Scottish Government do not believe that the Scots are a people with the right of self-determination under the UN Charter, they have no right to apply to the UN for statehood anyway, whatever the referendum result. So why not assert that right now, in the argument for the referendum?
Astonishingly, Bain did not even mention it in court, once. She did mention it in her written submissions, where she stated that Scotland’s right to self-determination has no legal effect in UK law. She also, as I reported yesterday, did find time to argue before the Supreme Court that the mention of “the union of the Kingdoms of Scotland and England” in the Scotland Act was “a peculiarity”, as the Kingdom of Scotland has no legal existence since 1707.
Bain’s supposed argument that the Scottish government has a right to hold an independence referendum rests instead not on the right of the people of Scotland to decide their own future – which Bain has made plain she does not accept – but solely on this argument:
The Scottish parliament, Bain accepts, is constrained by the Scotland Act from legislation which relates to “the Union.” But as a referendum on Independence would only be advisory, it does not “relate to” the Union.
Which, frankly, is bollocks. Even the most ardent supporter of Scottish Independence cannot really believe in this argument. It is embarrassing to be making it.
The argument that Bain should have been making is this:
1) The Westminster Parliament has no authority to make law which constrains the right of self-determination of the Scottish people
2) Yes, the Scotland Act does, quite deliberately, stop the Scottish parliament holding an independence referendum. Of course the UK will try to stop Scotland leaving. But it has no right to do so.
3) Compliance with UK law is not necessary for Scotland to achieve Independence.
That would be precisely in accordance with this statement of international law:
5.5 Consistent with this general approach, international law has not treated the legality of
the act of secession under the internal law of the predecessor State as determining the effect
of that act on the international plane. In most cases of secession, of course, the predecessor
State‟s law will not have been complied with: that is true almost as a matter of definition.
5.6 Nor is compliance with the law of the predecessor State a condition for the declaration
of independence to be recognised by third States, if other conditions for recognition are
fulfilled. The conditions do not include compliance with the internal legal requirements of
the predecessor State. Otherwise the international legality of a secession would be
predetermined by the very system of internal law called in question by the circumstances in
which the secession is occurring.
5.7 For the same reason, the constitutional authority of the seceding entity to proclaim
independence within the predecessor State is not determinative as a matter of international
law. In most if not all cases, provincial or regional authorities will lack the constitutional
authority to secede. The act of secession is not thereby excluded. Moreover, representative
institutions may legitimately act, and seek to reflect the views of their constituents, beyond
the scope of already conferred power.
That statement of international law is the UK government’s submission to the International Court of Justice in the Kosovo referral.
Read it across to the Scottish postion. Of course the Scotland Act tries to preclude Scottish Independence. As the UK government stated in the Kosovo case: “In most cases of secession, of course, the predecessor State’s law will not have been complied with: that is true almost as a matter of definition.”
Defying UK law will not affect Scottish recognition by the international community: as the UK government stated in the Kosovo case “Nor is compliance with the law of the predecessor State a condition for the declaration of independence to be recognised by third States, if other conditions for recognition are fulfilled. The conditions do not include compliance with the internal legal requirements of the predecessor State.”
The Scottish Parliament has the right to call a referendum or to declare Independence as it wishes in reflecting the will of the Scottish people. As the UK government argued in the Kosovo case: “In most if not all cases, provincial or regional authorities will lack the constitutional authority to secede. The act of secession is not thereby excluded. Moreover, representative institutions may legitimately act, and seek to reflect the views of their constituents, beyond the scope of already conferred power.”
If Bain were a half decent lawyer, and any kind of decent Scot, she would have been going at the Supreme Court with The British government’s own words and arguing for Scotland’s right. Instead I have a pile of notes of today’s proceedings so mind-numbingly dull and inconsequential I am not going to bother you with her drivel or that of James Eadie for the UK government.
They conducted a ritual dance across the pinheads of various clauses of the Scotland Act and its schedules, to no useful effect whatsoever.
The Supreme Court will decide that yes, it does have the authority to answer this reference, which it will say was properly made (the judges didn’t like Eadie’s bullying of Bain on this point) and no, the Scottish Parliament does not have competence to pass the draft referendum bill. You will get this decision in late January.
It was an irrelevance. Scotland should of course not be acknowledging any authority of this London court in the first instance.
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