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Malcolm Combe: Scottish Independence/Separation: Constitutional Wrangling Meets International Law Oversight

Typical. You wait ages for one regional parliament to call for a referendum, then two come along at once. Scotland’s own path towards a referendum can now be compared to Catalonia’s call for an independence plebiscite. Self determination must be contagious, but the international law doctrine of self-determination is an angle that has been overlooked at times in the independence debate. Instead, questions seem to focus on (or get bogged down in) the constitutional settlement of the United Kingdom.

That settlement is a tad enigmatic. It was thus before the advent of devolution: I will see your peculiarly English sovereignty of parliament and raise you McCormick v Lord Advocate, and all that. The Scotland Act 1998 did not exactly simplify the position. This is the backdrop on which the referendum on Scottish independence from England, Wales and Northern Ireland (RUK) that must be played out. I would not deign to speak with great authority on the constitutional position of the referendum, others have already done so. Recently the Scottish Affairs Committee added its contribution to the fray. Not unexpectedly, the committee’s membership has been critiqued by some, but criticising a man for what he happens to be is not a sensible tactic if you cannot attack the points he makes. What does the report say? 

According to the news release accompanying the work of this committee of MPs, “the overwhelming weight of evidence shows that the Scottish Parliament cannot presently legislate to hold a referendum on separation”. But what did the committee not consider? Answer: the small matter of international law.

The role of international law

Of course, the Scottish Affairs Committee may not have had a remit to consider international law and may not have been addressed on the point, but having conducted a word-search of the published material it seems that “self-determination” never features and the word “international” only appears as part of the word “internationally” when the committee notes: “Questions of separation and national status, such as devolution, are clearly often seen as suitable for referendums internationally.” International law was not, therefore, a crucial part of the committee’s collective musings.

Okay, international law can be something of a shoogly peg. The brashest critique of international law is it is simply what happens. Ex post facto analysis seems to reign. “Successful revolution begets its own legality”, that comment being made by Stanley A. de Smith in 1968 and quoted by the Supreme Court of Canada in Reference re Secession of Quebec. A metaphor involving a cart and a horse springs to mind, but that is not all the court noted when considering whether or not Quebec could unilaterally secede from the Canadian Confederation.

What else the court said makes for fascinating reading. It was noted that if the people of Quebec were subject to control by some kind of colonial power a right to unilaterally secede would have been recognised. Of course, the descendants of the French speaking populace who lost to Wolfe’s forces at the Plains of Abraham might have the odd gripe or two with their inherited lot, but the fact that Quebecers have actively participated in the government of the country as a whole meant a unilateral secession that would affect the rights and constitutional balance of the rest of Canada was not something the court would entertain. Analogies with Scotland abound. Deploy what rhetoric you will, but RUK is not a colonial power: East Timor’s secession from Indonesia would not be akin to Scotland’s secession from RUK. However, and it is a big however, the court also noted the following:

The continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.  The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others.

The federal government of Canada enacted the Clarity Act shortly thereafter.

So what can Scotland learn from Canada, that country where the Lowland Scots and Highland Gaels had so much impact in the first place? Let us set aside the Scotland Act 1998 (as amended) wrangling, even just for a moment. The Supreme Court of the UK would approach international law in a not dissimilar way to the Supreme Court of Canada. That being so, it may be that a referendum suitably framed in a manner that the Scottish people understand would be protected by a carapace of international law. Without an equivalent to the Clarity Act, what would happen if a referendum took place? 

Let us now make a number of assumptions. First, assume that a referendum is called. This might seem a strange assumption to make but some referendum sceptics (most notably Labour blogger and solicitor Ian Smart) suggest an Alex Salmond instigated referendum might not happen at all. The die has been cast so the referendum will (it seems) take place at some point and that referendum is looking increasingly likely to have a single question.

Let us now assume that that referendum proceeds notwithstanding any challenge by an officious citizen (which citizen might be any kind of interested party, considering the recent Supreme Court decision in the Axa case on who might have standing).

Let us now assume the referendum is won by the nationalists, which is no small assumption based on current polling indications or musings.

Assuming all of these not insignificant assumptions come to pass, could Westminster hide behind the points in the Scottish Affairs Committee report? For all the reasons set out above regarding international law, I would submit they would be hard pressed to ignore the result of a referendum. Sure, all of this might well be resolved quickly by a Clarity Act equivalent, but we do not have that yet. The Scottish Affairs Committee was apparently reporting on the situation as it stands, but the lack of consideration of international law in that status quo strikes me as a big omission.

International law tangents

Some other points are worth mentioning, which is all I shall do before rapidly ducking away from them. The first is what exactly do we mean by the Scottish people? The similar question about Quebecers was similarly ducked by the Canadian court, so I am in good company, but the point would be up for debate as self-determination is predicated on there being a people that self-determines.

Secondly, there is the international law point of recognition. A state can be thought of as a state when it is recognised as such by existing members of the sovereignty club (i.e. other states). Of course, this harks back to the point mentioned above about ex post facto analysis, but the views of other states might just come into play if a vote happened and a rush to recognise the best wee country in the world emerged. Some states might be all to keen to recognise an independent Scotland: would Argentina take a punt that RUK’s toehold in the South Atlantic would loosen without Scotland as part of the UK, for example? How many recognitions it would take to make Scotland a state is not, of course, in any way clear.

A final point is not entirely relevant to this debate, but the international law focus provides cover to introduce the concept of uti possidetis. At one point in a debate, a flustered SNP MP acknowledged the right of Orcadians and Shetlanders to self determination. It would be a tad hypocritical not to, of course, but in relation to the Balkans the Badinter commission was pretty clear that “whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the states concerned agree otherwise.” One self-determinative step at a time, please.


Will international law provide a solution to all the vagaries of the Scottish referendum, or indeed Catalonia’s potential secession from Spain? No, it won’t, but the thoughts in this blog about it, and the Quebecer/Canadian experience in particular, may be of interest. A fuller note on the Canadian experience exists for those who have had their curiosity piqued. International law aside, some might argue we can just get on with it anyway, whilst others will wade around in the constitutional mire and perhaps enjoy a bit of a strop in the process. If anything, the question might have a greater Iberian resonance, given Spain’s apparent refusal to countenance any Catalonian referendum, but for Scotland the self-determination angle might operate as a check on any attempt by anyone to impose conditions to the referendum that might skew (or attempt to skew) the question that is set, or indeed the electorate that may vote on the question, in an attempt to obtain a certain result. Much fun, gurning and gnashing of teeth will no doubt still be encountered on the bumpy road to the referendum, but perhaps international law might smooth over certain concerns along the way.

Finally, even if we take nothing from the Canadian legal experience, perhaps we can take something from the views of Michael Ignatieff. His fascinating interview on how Canada will not quite be the same as a social union from earlier this year is still available on the BBC and is well worth a view.

Malcolm M Combe is a Lecturer in Law at the University of Aberdeen. A slightly different version of this blog first appeared on his blog BaseDrones on 10 August 2012.

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