Scotland’s Independence: A Referendum Over Scotch

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By Nicolás Córdoba Pineda
@NicolasCordobaP
Cordoba.nicolas@hotmail.com

307 years after the Crowns of England and Scotland sealed their Union through a treaty named the Acts of Union, therefore becoming the United Kingdom of Great Britain, they are facing one of the world´s most critical scenarios: independence. But not independence from a foreign/dominant power, or ‘independence’ in the latta terms of more self-governing powers, but independence from within. The Scottish National Party, the political majority of Scotland´s parliament and stronghold of the independent movement, called for a general referendum on Scotland’s soil in order for voters to decide whether Scotland should be and independent country.

This situation triggers a lot or questions in the political, social, cultural, economical and legal scenario, being one of the most alarming ones the fate of Scotch whisky (given that its commercial channels and benefits network are determined by the United Kingdom).

However, being impossible, or at least too pretentious, to address all the questions derived from this odd event from a XXI century developed and highly industrialized nation, it is the intent of the present text to highlight what the world will witness after September 18th, 2014 (provided that the YES answer to independence calls heads in the polls): Dissolution of the United Kingdom, secession of Scotland, or ‘Continuity’/‘Succession’ of England, Wales and Northern Ireland. 

Dissolution and the end of Great Britain as we know it

Is it possible that the United Kingdom of Great Britain –without Scotland- will cease to exist? At least in its very essence it does. Part of the logic argument comes from the premise that if one of the parts of an ensemble is removed then that particular ensemble shall no longer be considered such. In State-centered terms, and to focus on international politics, this was the precise case of the United Arab Republic (now –again- Egypt and Syria) and Czechoslovakia (now Czech Republic and Slovakia). Yet, one may think that in those cases dissolution was obvious provided the reference to a “two-State” union. If one ‘exits’ the union, it is over.

However, other cases evidence the same conclusion (State Dissolution) under different premises. Such was the case of the Socialist Federal Republic of Yugoslavia –SFRY-. This Union of six nations (now 7 given that Montenegro seceded from Serbia in 2006), was understood to be dissolved[1], ceasing to exist, even though Serbia and Montenegro which made up to half of the SFRY’s territory, population, economic importance and political leverage claimed succession. Its dissolution was regarded as a fact, and therefore no discussion allowed whatsoever. The dismantlement of a six part unit (which materially meant the dismantlement of 50% of such union given the political and socio-economical facts at the time) was regarded by the international community as the dissolution of an entire State[2]. A consequence of politics or a fact? That is for history to decide[3].

Under the case of Scotland it is important to highlight that it represents 32% of the United Kingdom´s territory; engages actively in the Union Parliament with a fixed number of seats both in the House of Lords and in the House of Commons; is the land to which the British crown is rooted (after King James VI of Scotland inherited the English throne from Queen Elizabeth I); and, is a key player to the whole Union´s economic and security stability. Their role as essential part of the Union is undisputed, even by the English.

And what would the independence of Scotland imply if regarded as a dissolution of the entire United Kingdom? That two newly born legal entities will arise, with no right to claim succession from the United Kingdom from either part whatsoever. The resulting States will be under the need to be recognized by other States, access International Organizations and organs (such as the NATO, EU and the UN), sign the whole series of treaties of their choice/convenience, appoint new representatives and issue consent upon the current ones, redraft their boundaries under such new conditions and engage actively in international politics under a new ‘brand’. What will happen to the permanent seat of UK in the United Nations Security Council if dissolution, although highly unlikely, is declared? Albeit, this is the least feasible outcome in the present case.

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Secession and the new-born State

 

Secession is defined as “the action of breaking away or formally withdrawing from an alliance, a federation, a political or religious organization, etc.”[4] And even though is a conflicting issue in international law, even nowadays, UK has accepted secession as a neither “non-prohibited” nor “expressly permitted” situation under international law[5]. That being said, secession of Scotland from the Union is not to be deemed illegal under a general UK understanding[6].

Even though other measures to assure the self-determination[7] of the Scottish peoples are preferable (such as granting more autonomous powers to Scotland[8]), as it has been pointed out by the British Government, Scotland is clearly pursuing to secede from the Union. Breaking apart from it “without breaking it apart”[9] (if that is plausible).

However, is secession always allowed –or not prohibited at least- under international law? The Supreme Court of Canada –SCC- gave light on this issue when deciding the secession of Quebec (reference by the Governor in Council concerning certain questions relation to the secession of Quebec from Canada). The Court determined, as a general rule, that the right of Quebecers to unilaterally secede from Canada rested in the observance of one of the following conditions: i) being under colonial rule; ii) being subject to alien subjugation, domination or exploitation; or, iii) being denied any form of self-determination within the State of which it forms part[10].

One may assert that this premise may be utilized by the Unionists in an attempt to legally prevent secession, given that Scotland does not pass the threshold for accomplishing secession under any of such circumstances. And such conditions are not an act of inspiration by the Judges of the SCC; they are in fact the collection of conditions framed by a series of UNGA resolutions[11], International Treaties[12], unilateral declarations[13], State´s written statements and international custom[14].

Yet, if secession is finally recognized, some major questions will arise as to the role of Scotland in the international community as a new legal entity. Beginning with the maritime delimitation of Scotland (rich in oil and gas) which is not entirely defined, Scottish will have to start applications for accession to the EU[15] –an organization which Scotland fiercely promotes and defends from the euro-skeptics of the UK-, NATO[16] -vital to Scotland’s security as the neighbor of four major NATO stakeholders –Iceland, Denmark, Norway and what would remain of the UK-, and the United Nations[17] (just to name a few). It is relevant to note that all of the abovementioned applications must pass with the affirmative vote of the entity which continues, or succeeds, the legal personality of the former United Kingdom of Great Britain (whatever name is given to England, Wales and Northern Ireland).

‘Continuity’ or ‘Succession’?

One of the most important questions which arise from the particularity of the case under study is if England, Wales and Northern Ireland (labeled under any name) will continue with the legal personality of the current United Kingdom or otherwise will be called to succeed such Union[18]. The relevance of this issue lays in the argument that if continuity is accepted, even if a different name is given to Great Britain, such entity will have no trouble in its international performance as to the extent of being regarded as the same United Kingdom (at least in legal terms) with all its rights, obligations, relations, appointments and positions under a different name.

Yet, if one is to accept the thesis of succession, being it the extinguishing of the former parent state and the succession of its rights and duties in the head of a new state, some major consequences and questions will arise. Treaty obligations/accession/objections, bilateral inter-state relations, and membership to international organizations, are just some issues that will be opened for discussion. Succession, in order words, does not mean the maintenance of the legal statu quo of the person. It is, in simpler terms, the inherency of some rights and obligations under law, such as the succession of children over parents assets, enabling in some cases the benefit of inventory.

Although is difficult to think that England, Wales and Northern Ireland will be prevented, in any way, from continuing the legal personality of the United Kingdom, other possibilities and inquiries are on the table.

Two roads, one single concern

Two different roads are open, both entangling serious effects on the United Kingdom, once ballots are casted the 18th. If the NO wins, some important concessions are to be granted to Scots, but no major implications on international law/international relations are foreseen to happen. Leverage on government appointments for Scottish born and the Scottish nationality recognition is foreseeable. However, if the YES is the winning ballot, discussions on state dissolution, secessionist legality, continuity/succession of the United Kingdom, common currency under the pound, nuclear active material, environmental covenants, border security, are for sure going to permeate the international context for a while.

The results may trigger, or revive, independent/separatist movements all over the world, as it may be construed as the clearest expression of external self-determination in a post-colonial –and post-cold war- period. Quebecers –again-, Catalonians, Pro-Russian Ukrainians and Georgians, and even the “Kingdom of Hawaii” may see this unique opportunity as one for reclaiming independence.

God Save the Queen…and the Scotch!

Notes:

[1] Conference on Yugoslavia, supra note 10, at 1488

[2] UNGA Resolution 47/1 of September 22, 1992 states that: “1. Considers that the Federal Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the membership of the former Socialist Federal Republic of Yugoslavia in the United Nations; and therefore decides that the Federal Republic of Yugoslavia (Serbia and Montenegro) should apply for membership in the United Nations and that it shall not participate in the work of the General Assembly”.

[3] For more on the legal status of SFRY and the FRY and its political consequences: H.E. JOVANOVIC, Vladislav. The Status of the Federal Republic of Yugoslavia in the United Nations. Fordham International Law Journal, Vol. 21 Issue 5. 1997.

[4] Oxford Law Reference Dictionary

[5] Written statement of the United Kingdom: “request for an advisory opinion of the international court of justice on the question “is the unilateral declaration of independence by the provisional institutions of self-government of Kosovo in accordance with international law?” April 17, 2009. Pg. 87 and 101 at: http://www.icj-cij.org/docket/files/141/15638.pdf

[6] Although the referendum was agreed under the terms of the “Edinburgh Agreement” and received Royal Assent on December17th, 2013, no ruling as to its legality has been issued on the matter.

[7] Self-determination is deemed as a core principle of contemporary International Law as stated in the UNGA Resolution 2625 regarding the “Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”.

[8] This is what many scholars have called “internal self-determination”: the right of peoples to be governed under a self-determination political umbrella without affecting the territorial integrity of the State to which they are attached. Paraphrasing Cassese: Self-Determination of Peoples: A legal reappraisal; McCorquodale: Self-Determination: A Human Rights Approach; Hannum: Autonomy, Sovereignty, and Self-Determination; Crawford: The Creation of States in International Law.

[9] Scottish have insisted that even if become independent, the Queen and her heirs will remain as Head of State.

[10] SCC, Secession of Quebec, Par. 154. In: http://scc-csc.lexum.com/scc-csc/scc-csc/en/1643/1/document.do

[11] Eg. UNGA Resolution 1514 “Declaration on the granting of Independence to colonial countries and peoples”

[12] Eg. Helsinki Final Act

[13] Eg. Kosovo Unilateral Declaration of Independence

[14] Custom derived, primarily, from the colonial context of independence as regarded by the UN Trusteeship Council http://www.un.org/en/decolonization/trusteeship.shtml

[15] “Under Article 49 of the Treaty of the European Union, any European country wishing to join the EU shall apply to the Council which, before taking a decision, must consult the Commission and ask the European Parliament for a favourable opinion adopted by an absolute majority of its members. The Council then makes its decision unanimously. The Member States and the applicant country come to an agreement on the conditions for accession and adaptation of the treaties and institutions which are entailed by accession. This agreement, or Accession Treaty, is subject to ratification by all the signatory States.” http://europa.eu/legislation_summaries/enlargement/ongoing_enlargement/l14536_en.htm

[16] Article 10 of the Washington Treaty of 1949, states that: “The Parties may, by unanimous agreement, invite any other European State in a position to further the principles of this Treaty and to contribute to the security of the North Atlantic area to accede to this Treaty.”

[17] Article 4(2) of Chapter II of the UN Charter states that “the admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.”

[18] For the difference between continuity and succession under international law: CRAWFORD, James. Brownlie´s Principles of Public International Law. Oxford, 8th edition. Pg. 426.

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