ROUTES TO INDEPENDENCE
An article from our legal eagle Ewan Kennedy. He wrote this in August 2021. Routes to Independence I am offering this as my contribution to the discussion about how we Scots can advance from the position we find ourselves in, nearly seven years since the Referendum. What are the routes open to us? Only aContinue reading "ROUTES TO INDEPENDENCE"
An article from our legal eagle Ewan Kennedy. He wrote this in August 2021.
Routes to Independence
I am offering this as my contribution to the discussion about how we Scots can advance from the position we find ourselves in, nearly seven years since the Referendum. What are the routes open to us?
Only a total fantasist would suggest that there would be any advantage whatever in a process that ended in not being accepted by the international community, i.e. the major nation states that surround us and institutions such as the EU and the UN. Status as a nation is acquired when a significant number of these recognise the result, “recognition” being a legal process which requires the presence of certain features of “statehood”, such as a functioning government, a legal system and basic institutions. It’s the absence of some or all of these that put an end to the diversionary stunts put forward by some rabid Unionists, such as independence for the Shetlands, or some idiot recently suggesting it for the Highlands and Islands.
With regard to Scotland, it’s a given that all of these basic elements in statehood are present. In my entire adult life no serious politician, academic or commentator has ever suggested the contrary. As a nation that formerly enjoyed statehood our territory is already defined and the treaty by which we became part of a larger entity preserved all of our basic institutions. To those who might describe this as ancient history, just listen to how often English politicians refer to Magna Carta.
Endorsement of this, if it were required, came earlier this year from Professor Marc Weller, an extremely senior and highly respected international lawyer. As quoted in the Scotsman he said:
“This internal, constitutional entitlement is then reflected in the international law doctrine of constitutional self-determination.”
And:
“According to the legal doctrine of uti possidetis, the right to self-determination through a referendum outside of the colonial context applies only to larger, constitutionally recognised units – in this instance Scotland.”
Where the principle of self-determination applies, Professor Weller adds, it is “generally” implemented through a referendum.
“Hence, if it is clear that Scotland is entitled to opt for independence, and if the means to do so is through an act of will of its population, then it follows that the central government should not be able to obstruct the implementation of that right by refusing a referendum,”
But while he stressed “Scotland can only succeed as a state within the EU if it can demonstrate that it has obtained the fullest consent from Westminster” over the potential move to become an independent nation, he also said:
“Scotland can also appeal to the principle of self-determination in international law,” …
“This principle was recently affirmed once more by the International Court of Justice in the Chagos Islands advisory proceedings brought by the United Nations General Assembly in relation to the UK.”
This concerned a colonial territory, though, and it remains unclear whether this principle applies outside that context.
But Prof Weller said Scotland’s right to leave the UK was “established informally in UK constitutional practice” after the 2014 referendum.
“International law recognises such a constitutional grant of authority, whether made express in the constitution or implied in constitutional practice,” he states.
As far as I am aware Westminster has never responded formally to any letters from the Scottish Government asking for a “Section 30” agreement, so to find out their position we have to look at the answers Johnson has given when asked softball referendum questions by folk like Andrew Marr. The answer is always that somehow the time isn’t right, or a “generation” hasn’t passed, never that the Scottish nation is not entitled to self determination. The issue is clearly one of process rather than principle.
While I sympathised with the action brought by Martin Keatings on the question whether a referendum can be held without consent, I feared from the start that it was doomed. No ruling from a domestic court can alter the basic reality that the present regime is a brutal one, that will not hesitate to change the law if it loses. With an obsession with “Sovereignty” and a majority of eighty, Johnson can, post Brexit, do what he likes, including curbing or abolishing Holyrood and even the Supreme Court itself.
Professor Weller suggests that an application to the International Court of Justice, the World Court, might be the way forward. This has to be taken very seriously.
The Court, not to be confused with the European Court of Human Rights, exists specifically to adjudicate on international matters, usually disputes between states, but there’s no reason why it couldn’t rule on routes to statehood itself. Several of the judges belong to countries that were once colonies of former imperial states.
States have to agree to submit to the decision of the World Court. This is usually on an ad hoc basis, but it seems that as the United Kingdom was a major supporter it committed to agree in advance. Refusing to go along with a case would effectively involve withdrawal from the institution, which would confirm the UK’s pariah status.
I appreciate that this route isn’t ideal, especially for those of us who despair of seeing independence in our lifetimes. Cases in the World Court go on for years, but then we’ve just seen years go by without any sign of Plan B. Just bringing the case would raise awareness of the issue world wide, where ultimately recognition would have to come from. And an application would not preclude other steps being taken in the meantime, something that isn’t happening just now.
MY COMMENT
Ewan wrote this in August 2021. In other words he saw well in advance where the failed debacle of the SCOTS GOVERNMENT application to the Supreme Court was going to end. He is not saying “told you so” but I am.
I am, as always
YOURS FOR SCOTLAND
BEAT THE CENSORS
Sadly some websites seek to censor what their readers have access to read. This is particularly true of sites whose existence is primarily to support the views of one particular party and they seek to block articles which do not slavishly support that particular doctrine. My readers have worked out that the best way to defeat that attack on the freedom of speech and thought is to share my articles widely, thus defeating any attempt at censorship. My thanks for this.
SALVO AND LIBERATION
Are playing a crucial role in taking Independence forward. This site limits donations to Yours for Scotland to a maximum of £3. We do not need more as all we seek to do is to cover the costs incurred in running the blog therefore once this is secured each year all further donations are forwarded to Salvo and Liberation. My thanks for all who choose to support us in this way. It is appreciated.
SALVO MERCHANDISE
What's Your Reaction?
