For freedom alone: secession after the Scottish referendum

Abstract

In September 2014, the people of Scotland voted on whether or not to become an independent state. The consequences of independence would have been complex – decisions about accession to the EU, currency union, defense. Seemingly less dramatic, yet no less important, are the consequences of Scotland not seceding – the effects in global law and politics of the very fact that the referendum happened, and that it failed. Many elements of the Scottish case find close parallels in claims for secession elsewhere in the world. Yet those claims more often meet less welcoming receptions. Indeed, it is not the attempt to secede, but the existing state's acquiescence that marks this case as different: The UK is the rare country that acknowledges the possibility of its own division. Great Britain's acquiescence both made Scottish secession possible and made it an outlier, whose precedential value must be closely interrogated. The key missing element is any evidence that the process was shaped by a sense of international legal obligation – indeed, the pathways of Scottish secession have been an insular affair, a function of particularly British law and politics, in which international law played little role. This article argues that the Scottish referendum provides little precedent for a changing legal norm – yet also offers a compelling model for how such a new norm ought to look. This article is about something that did not happen, and why it does not matter – but also why precisely that is so important.

Keywords:

• secession
• referendum
• international law
• independence
• Scotland

Acknowledgements

Thanks to Prof. Paul Behrens, Prof. Christine Bell, Prof. Timothy Lynch, Matthew Qvortrup, Prof. Stephen Tierney, and audiences at Columbia University, Indiana University, and the University of Missouri-Kansas City for comments on earlier drafts.

Notes

1 Mel Gibson as William Wallace, in Braveheart (Gibson 1995) (uttered during the character's torture and execution by his English captors). The historical William Wallace, knight son of a minor landowner, began an initially successful revolt against the English in 1297, but was defeated, captured in 1305, tortured, and executed; his final words are not recorded. See BBC (2015) and connecting page.

2 China convicted seven of Tohti's students on separatism charges for contributing to a website run by Tohti (BBC News China 2014).

3 Quoting MP Rory Stewart regarding Hadrian's Wall (The Scotsman 2014).

4 It is beyond the scope of this paper to consider the historical, even causal, relationship between Scotland's political status within the United Kingdom and Scots’ cultural and political identity. Nor, for that matter, do I take a view on the nature of Scottish identity today: clearly it is different from British or English identities in certain respects, but equally clearly it is not monolithic. I am concerned simply with the political and legal expression of Scottish separatism, whatever its origins, and its interaction with British law and politics, as well as with the broader international legal space.

5 Cf. Scott [1818] 2004 (‘“I dinna ken muckle about the law,’’answered Mrs Howden; “but I ken, when we had a king, and a chancellor, and parliament-men o’ our ain, we could aye peeble them wi’ stanes when they werena gude bairns - Bit naebody's nails can reach the length o’ Lunnon.”’).

6 Britain's imperial structures were highly heterogeneous and decentralized, a reality given express form in the Statute of Westminster (1931). In addition, several feudal holdings of the Crown – the Channel Islands and the Isle of Man – have long had complex juridical and political relationships to the Crown, to England, and to the UK.

7 After protracted political debates in the nineteenth century on Irish home rule, and several years of armed conflict, in 1922 an Irish Free State was established in the southern parts of Ireland, which had been an integral part of the United Kingdom, as a dominion of the British Commonwealth of Nations; under a provision of the same treaty, Northern Ireland elected to remain part of the United Kingdom. In 1949, Ireland declared itself a republic, terminating its final ties with the Crown. See Articles of Agreement (1921) and Republic of Ireland Act (1948).

8 Scottish devolved powers include regulation of the “National Health Service, education, justice, social services, housing, the environment, farming, fisheries and aspects of transport” (Scotland Act 1998, Chap. 46-1988). Holyrood also has the power to vary the income tax rate set by Westminster. See Scottish Government (2013a).

9 See Scotland Act (1998), Chapter. 46-1988, Sched. 5 (‘Reserve Matters’), Art. 1(b), and Sched. 4, Art. 2(a)(‘Enactments, etc. Protected from Modification’).

10 One of the factors commonly noted as having alienated Scots from Westminster has been the near-extinction of the Tories in Scotland since the Thatcher era: In periods of Tory rule at Westminster, Scots – among whom SNP and Labour dominate – are not represented in the UK government.

11 The party, founded in 1934, first won a seat for a full term in the House of Commons in 1967. The party also won a by-election in 1945 but only held that seat for three months.

12 Advocate General for Scotland Lord Wallace of Tankerness, QC, rejecting a call in the House of Lords for the entire population of the UK to vote in the referendum (BBC 2012).

13 See House of Lords Select Committee on the Constitution (2009, 9–10) ¶¶ 1-6 and Box 1 discussing referenda in the UK since 1973, including a single UK-wide referendum, though there has since been one more.

14 Chap. 47-1988, Part 1, 1(1-2): “Status of Northern Ireland. (1) It is hereby declared that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll … (2) But if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty's Government in the United Kingdom and the Government of Ireland.”

Two points: This creates a power in the people of Northern Ireland to initiate a parliamentary process, not to effect their independence (or rather union with Ireland) outright; and this is an Act of Parliament, revocable at Parliament's pleasure. The principle of a referendum on these terms long predates the Northern Ireland Act, and figures in the original decision to create an Irish Free State while giving the north the option to remain within British sovereignty. Anglo-Irish Treaty (1921), Art. 12.

15 Scotland Act (1998), Chap. 46-1988, Sched. 5 (‘Reserve Matters’), Art. 1(b).

16 Cf. press release from the Prime Minister's office, “Today's landmark event is facilitated by a technical measure known as a Section 30, which passes power from Westminster to Holyrood to legislate on the referendum” (Prime Minister's Office 2012).

17 The Scotland Act 1998 (Modification of Schedule 5) Order 2013, Art. 3, making the following relevant modifications:

“5A. (1) Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if the following requirements are met.

(2) The date of the poll at the referendum must not be the date of the poll at any other referendum held under provision made by the Parliament.

(3) The date of the poll at the referendum must be no later than 31st December 2014.

(4) There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.”

18 A typical statement: “The UK government believes Scotland is stronger in the UK, and the UK is stronger with Scotland in it. However, we recognise that the Scottish government was elected with a mandate to hold a referendum on Scottish independence.” “Facilitating a legal, fair and decisive referendum in Scotland” (Scotland Office 2013).

19 Cf. BBC (2012), discussing one such failed proposal in the House of Lords.

20 The SNP issued contradictory positions on the right of the islanders to determine their own political future. See, for example, Johnson (2013) noting that “the SNP has previously recognised the islands' right to decide their own future but has since changed its mind amid concerns over the impact on a separate Scotland's finances.” Activists on the islands themselves proposed referenda to be held a week after the Scottish referendum. See Riley-Smith (2014).

21 This did not prevent various ministers from asserting that the UK would not support a currency union. See, for example, Bell (2014), noting Chancellor George Osborne's comments to this effect, and the Scottish government's retort that it might refuse to accept a share of the UK's debt.

22 ‘Under the Edinburgh Agreement the referendum will be made in Scotland. That principle should apply equally to Scotland's constitutional platform.’)(emphasis added) (Scottish Government 2013a, 10).

23 The Smith Commission was appointed on 19 September 2014 to consider further devolution. The Smith Report, issued in November 2014, recommended a number of expanded powers in taxation and regulations (The Smith Commission 2014). Following the release of the Smith Report, the UK government drafted a Command Paper, outlining its plan to put forward a new Scotland Bill defining devolution (UK Secretary of State 2015).

24 The Scotland Act 1998 (Modification of Schedule 5) Order 2013, Art. 3.

25 U.N. CHARTER, art. 1(2); G.A. Res. 1541 (XV), U.N. GAOR, 15th Sess., Supp. No. 16, princ. VI, at 29, U.N. Doc. A/4684 (1960) (“A Non-Self-Governing Territory can be said to have reached a full measure of self-government by: (a) Emergence as a sovereign independent State; (b) Free association with an independent State; or (c) Integration with an independent State.”); Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV), U.N. GAOR, 25th Sess., Supp. No. 8, at 124, U.N. Doc. A/8028 (1970) [hereinafter Declaration on Friendly Relations] (“The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right to self-determination by that people.”). See also Horowitz (2003, 5–6). External self-determination is typically contrasted with internal self-determination, in which peoples or minorities may enjoy political and social rights within a state (Guibernau 2015).

26 Restatement (Third) of the Foreign Relations Law of the United States § 102(2) (1987); see Guzman (2005) noting that “[f]ocusing on practice rather than opinio juris is sometimes referred to as the ‘traditional perspective’ on CIL formation. The alternative ‘modern approach’ is more normative … ”

27 Most analyses in which international law comes into play have this hypothetical quality. Cf. Tierney (2013) noting that “[p]rovided the United Kingdom does not oppose the independence of Scotland  …  this should in turn avoid the need for any serious debate about the legality of the act of secession under international law.”

28 See, for example, Bell (2014) discussing international law governing distribution of debt if the UK retains the legal status of successor.

29 Professor Tierney's article does, but in a section entitled “After the Referendum: International Law Issues” considering the possibility of unilateral secession in the event that negotiations after a yes vote failed to reach an agreement to which Westminster would agree (Tierney 2013, 9–10 and 14–16).

30 About a year before the referendum, I witnessed a conversation in a bar in Germany between an Englishman and a Scottish woman that began in friendly fashion but rose to such an intense pitch that they had to be cut off, followed by an icy and awkward silence; the trigger was the subject of tuition charges.

31 See, for example, Scottish Government (2013c), the “Gains of Independence,” including examples such as “Scottish Parliament has power to stop services being privatized;” “Taxes from people in Scotland no longer used to pay for nuclear weapons;” “A guarantee that tax and social security rates will be set in line with the wishes of the people of Scotland.”

32 See, for example, Scottish Government (2013c, 5). “An independent Parliament elected entirely by people in Scotland;” “Decisions about Scotland will be taken by the people who care most about Scotland [ – ] those who work & live here.”

33 Cf. Scottish Government (2013b) (chart). “83% of the Scottish population feel they have a Scottish national identity … 20% of the population share their Scottish connection with another identity,” and citing these statistics to the 2011 census).

34 Reference re Secession of Quebec [1998] 2 S.C.R. 217. The Quebec Reference rejected an international right to secession, and denied that the Quebecois has a unilateral right within the Canadian constitutional structure. The Court identified a standard that prefigures contemporary remedial secession doctrine: no claim without evidence of persecution or systematic exclusion from participation in governance within the broader state. However the Court also suggested the availability of a very different threshold principle: a right to negotiations in good faith following a clear vote, which is rather close to what was agreed in the Scottish case.