It is a jus cogens (generally accepted) principle established in international law that ‘a people‘ have a right to ‘self-determination‘, and it’s surely one liberals and democrats should support. It has been a key factor in creating the stability of the post-war settlement. It is recognised as a principle in the UN charter.
Unhelpfully in the UN charter there are no specific legal definitions of either ‘a people’ or what is meant by ‘self-determination’. We can however look at how it has been applied, used and interpreted.
The UN charter principles also don’t define the potential outcomes of self-determination, which could range from recognition to federation, devolution, some autonomy or to full independence with the creation of a new state.
Scotland is not occupied, a colony or a protectorate.
The context in which this has come about has been decolonisation into the post-war settlement. Despite some nationalist hyperbole to the contrary Scotland is not occupied, a colony or a protectorate: so most precedents simply don’t apply.
The United Nations General Assembly Resolution 1514 (XV) supports the granting of independence to colonies and occupied countries through a legal path to self-determined decolonisation. While many Scottish Nationalists do portray Scotland as “the last colony of the British empire” – this is easily disproved revisionism . It bears as much weight as Idi Amin declaring himself the last King of Scotland.
According to the declaration of Arbroath Scotland was populated by the British before it was violently colonised by Scoti invading from Ulster. Later a Scottish king inherited the English Crown, and both Scotland and England ceased to be sovereign states when they created the unitary state of Great Britain. Scotland has literally been British longer than it’s been Scottish.
Scotland then played a disproportionately large role in the British Empire. (Glasgow was the second city of Empire, 1 in 3 colonial governors were Scottish.)
Scotland is not and never has been a British colony!
‘We the People.’
Who ‘the people’ are is an important consideration. It influences the validity of any Franchise. It is the defining tenet of populism that the populist represents the interest of ‘the people’ against a corrupt elite. That does not mean we should accept as fact the populist’s own definition. How often do we see in Scotland the ‘No True Scotsman’ logical fallacy used to exclude Scots with non Nationalist political views from being truly of the people? (Just search for the term ‘House Jocks’…)
If we were an occupied state, then it would make it simpler – for non-self-governing peoples (colonised and/or indigenous) and foreign military occupation “a people” is the entire population of the occupied territorial unit, no matter their other differences.
As we have a great deal of autonomy in Scotland, and we are not occupied, all indigenous, or a colony, this definition does not apply.
As highlighted by Scottish LibDem finance spokesperson John Ferry: The Canadian Supreme Court ruled on this point with regards to Quebec;
A suggested definition of ‘a people’ are – a group of persons with:
- a common historical tradition
- racial or ethnic identity
- cultural homogeneity
- linguistic unity
- religious or ideological affinity
- territorial connection
- common economic life.
- And subjectively : the will to be identified as a people and the consciousness of being a people
These are potentially problematic. They are certainly subjective.
First – With some of these criteria we are straying into ethnic nationalism. Ethnic nationalist groups like “Siol nan Gaidheal” and “SettlerWatch” – along with comments from SNP supporting celebrity ethnic nationalists like Brian Cox, see the English and Scots as different racial identities. Settler watch targeted what they called “white settlers” – English people living in Scotland they sought to forcibly repatriate.
Second, for many of these criteria they could be equally used to define many from the whole population of Great Britain as ‘the people’ with a right to self-determination. Nowhere in UN charter of international law is it defined what subdivisions within ‘a people’ are valid.
Third, as a defined people Scots are not oppressed. We live in a constitutional settlement in a free democracy where – at both Westminster and in Holyrood, we can already greatly self-determine.
To demonstrate that there are limitations, imagine – we can say a people are defined by a shared ethnicity: Do a purely ethnic division of ‘people’ within any given population have a unilateral right to secede? That threatens the very concept of a multicultural and democratic society.
This may be a useful checklist to understand the motivation behind many Scottish government schemes. Where their push for Gaelic has, largely, failed in practice: they have pivoted to pushing “Scots” as a separate language from English, rather than an English dialect – even though they are using ‘synthetic Scots” invented by Scottish nationalists in the 1920s and 30s – a language designed specifically to sound more Scottish!
The apparent motivation for this is to create a claim of linguistic unity that doesn’t extend beyond the border. This is retro-fitting a culture.
We can compare this to Wales, where a genuine bi-lingual community has survived. At times, to many in Scotland, the attempts of SNP politicians and Nationalist columnists to force their faux spelling have been, richtly, mocked.
What’s Scots for Integrity?
Following a number of decolonisations in Africa and the Middle east, that then led to additional fragmentation and bloody civil wars, there appeared to be tension between the rights of self-determination, the principle of Uti Possidetis Juris ( which says that new states should keep the same administrative boundaries), and the principle of maintaining territorial integrity.
The United Nations performs many roles, with sometimes conflicting aims: but a key one is stability. For there to be a United Nations there must be an expectation of a level of State stability, of Territorial integrity.
According to the Helsinki Final Act of 1975, the UN, International Court Justice and international law experts, there is no contradiction between the principles of self-determination and territorial integrity, but with the latter taking precedence.
To put it more bluntly the United Nations does not have a problem with Germany forbidding Bavarians the right to secede, with the Spanish constitution forbidding a region to unilaterally breakaway, with the United States of America being deemed indissoluble – and there isn’t a hope in hell that any member state facing its own internal separatists would set a precedent of recognising Scotland based on an unconstitutional claim that a general election can be a plebiscite where 4% of a country can tear that country apart.
We have already expressed our right to self-determination, it should be respected.
The most compelling, the most convincing, the most conclusive case against using the right of self-determination to argue for a second referendum now is the simple fact that Scots *have* self-determined, and recently.
We have a right to have our choice respected, and all our citizens have the right to have our territorial integrity respected.
There are no indications that there has been a significant change in opinion since 2014.
While there are no fixed ‘generational’ timelines between such questions, the idea that every election in a modern democracy could lead to the partition of the state plays well to few outside of Bute House.
The Nationalists had a fair chance in 2014, the United Kingdom – through a mandate based on cross party national level consensus – created a legal path to amicable separation by a S30 and referendum, and we, the Scottish people, self-determined to stay in the UK. Every expectation was that the Scottish people would be respected in our choice.
The principle of Self determination in international law is not a carte blanche for agitation, separation and partition.