Daniel Högger – Why Westminster’s agreement is vital to the international success of an independent Scotland.
It has indeed happened, last Tuesday night … No, not the British PM, Theresa May, signing the definite decision to divorce from the European Union. Rather, but caused by this, the Scottish Parliament backing the Scottish First Minister, Nicola Sturgeon’s, demand for another referendum on Scottish independence. Yet, for the Scottish Parliament in order to call for a legally binding referendum, Ms Sturgeon has to seek an Order in Council under Section 30(2) of the Scotland Act 1998 for a temporary transfer of power from Westminster (what she did the Friday after). But already before the Scottish Parliament’s vote last Tuesday, the British PM rejected this demand stating that «now is not the time», meaning, before the Brexit. Still, Ms May’s approval is essential for a successful Scottish independence, not only nationally but also on the international level in order for an independent Scotland to have diplomatic relations with other States, to be able to join inter- and supranational organisations, and, generally, to participate on equal terms in global affairs.
Scottish self-determination vs British territorial integrity
For this to happen, the other States must be willing to recognise Scotland as an independent State. In general, all people have the right for self-determination which, according to the «Friendly Relations Declaration» of 1970 by the United Nations, might be implemented by «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». Yet this notion might conflict with the right of every State to its territorial integrity. Thus, the right of every people to self-determination does not automatically and in every case result in a right to secede, i.e. separating from an existing State and becoming independent. In fact, in most cases other States do not perceive secessions or even only their attempt as legitimate. But it is exactly this legitimacy that is a crucial requirement for an entity to be recognized as a State by its peers. Without this legitimacy, on the other hand, the other States might not deem an entity «fit for recognition». Closely linked to this is the inadmissibility of non-interference in domestic affairs of another State whereas the recognition of a seceding part of a sovereign country as its own independent State would be perceived as such an intervention into the mother country’s affairs. This is an impression what other States aim to avoid for reasons of reciprocity and the maintenance of good relations.
National consent at core of international recognition
Thus it is imperative for the Scottish government to come to an agreement with the UK Government in Westminster on the terms of a binding referendum on Scottish independence. It is safe to presume that only if the UK, as the original State, agrees with this separation will other States dare to recognise Scotland as a fully independent State. This recognition, again, will be decisive, for example, for Scotland to join the UN which is limited to States. Having said this, a complete other option might be to hold a consultative referendum instead. This has the advantage of not being dependent on «London’s» consent. Additionally, the approval of the referendum by the Scottish people could serve as a strong argument in negotiations on the separation of Scotland from the UK. This, in particular, as the cause for such an independence referendum is rooted in another, inherently consultative only referendum on UK’s departure from the European Union. However, so that, unlike after the Brexit-referendum, claims of voters being ill-informed or misled by one-sided campaigning can be avoided, it seems highly important to send out, together with the voting documents, a clear, thorough and accurate list of all pro and contra arguments in order to guarantee an as well-informed as possible and hence fair and rational decision on Scotland’s future.
Dr. Daniel Högger is Senior Policy Fellow at the Think Tank ƒoraus – Swiss Forum on Foreign Policy. For his PhD he examined the requirements for State recognition in International Law. His thesis is published as «The Recognition of States – A Study on the Historical Development in Doctrine and Practice with a Special Focus on the Requirements» (LIT 2015).
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