The UK Supreme Court in the Scottish case: revitalising the doctrine of remedial secession

On 23 November 2022, the UK Supreme Court issued an important judgment on the question of the Scottish referendum. The judges unanimously ruled that the Scottish government could not pass legislation paving the way for the second referendum without the approval of the UK parliament. The reasoning of the UK Supreme Court is heavily based on the national law. However, as the Scottish National Party relied on the right to self-determination, the UK Supreme Court had to also examine the scope of the right to external self-determination outside the colonial context and to determine whether it applied in the case of Scotland. In two paragraphs (88-89), the Court determined that the scope of the principle of self-determination had been clarified in the Reference re Secession of Quebec (hereinafter Quebec case) of the Supreme Court of Canada (1998) and applied “with equal force to the position of Scotland and the people of Scotland within the United Kingdom”.

The Court recognised that, according to the Quebec case,

the international law right to self-determination only generates, at best, a right to [i] external self-determination in situations of former colonies; [ii] where a people is oppressed, as for example under foreign military occupation; or [iii] where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination.

The third situation of external self-determination recognized in the Quebec case has been the most contested in legal scholarship. This situation concerns the right to secede of a group of people or minority in case of their denial of the right to internal self-determination and gross violations of human rights. The Supreme Court of Canada in the Quebec case confirmed that such a possibility may exist even if it could not pronounce itself unequivocally that such a rule is established under international law. Interestingly, the UK Supreme Court did not make a difference between the three above situations of external self-determination, but only confirmed that, just like in Quebec, none of these situations applied to Scotland.

The Court addressed the complex question of the right to self-determination outside the colonial context in a rather simplistic way. Without a comprehensive elaboration of the right to self-determination, the Court endorsed the Quebec standard of self-determination, a standard that leaves room for creation of states without the consent of a parent state in situations of denial of internal self-determination and gross human rights violations. To my knowledge, this is the first time, since the Quebec judgment of 1998, that another higher court fully endorses its reasoning.

Certainly, Quebec is not the only decision that recognises the possibility for a group of people or minority to secede in case of a denial of internal self-determination and systemic human rights violations. This doctrine enjoys support in earlier judicial decisions and opinions. Already in 1921, the Commission of Rapporteurs in the Aaland Island dispute noted that

The separation of a minority from the State of which it forms part and its incorporation in another State can only be considered as an altogether exceptional solution, a last resort when the State lacks either the will or the power to enact and apply just and effective guaranteed (religious, linguistic and social freedom).

In 1994, the African Commission on Human and People’s Rights in the case of Katangese Peoples’ Congress v. Zaire maintained that

In the absence of concrete evidence of violation of human rights to the point that the territorial integrity of Zaire should be called to question and in the absence of evidence that the people of Katanga are denied the right to participate in government as guaranteed by Article 12 (1) of the African Charter, the Commission holds the view that Katanga is obliged to exercise a variant of self-determination that is compatible with the sovereignty and territorial integrity of Zaire.

In both cases, the disruption of territorial integrity was possible if there was evidence of serious violations of human rights and a denial of internal self-determination. Besides jurisprudence, it can be argued that Bangladesh and Kosovo provide models of self-determination triggered by, among others, systemic and gross human rights violations.

The foregoing finds support also in literature. According to James Crawford, “external self-determination may sometimes be justified as the only method of preventing systematic oppression of a people within a State”. Bruno Simma supported the view that secession could be justified even for minorities in special circumstances. Marc Weller has argued that “in such a case, where a constitutionally relevant, defined segment of the State population has been persistently oppressed, excluded from governance of its own area of compact habitation and from the central State, and exposed to a systematic and widespread campaign of permanent displacement, the doctrine of territorial unity may lose its persuasive force; instead the will of people, unambiguously expressed, may increasingly guide international action in dramatic circumstances of this kind”.

These viewpoints are largely based on the reading of, among others, Article 1 of the UN Charter, the UN General Assembly Resolutions 1514 (1960) and Resolution 2625 (1970) on the Friendly Relations Among Nations. The last, in particular, provides that

Nothing in the forgoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States concluding themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.

Many have argued that the foregoing makes territorial integrity conditional on the respect for human rights and internal self-determination. This, in fact, is the gist of Quebec, Aaland Island, Kongo v. Zaire and, most recently, the UK Supreme Court on the Scottish referendum.

The International Court of Justice has not yet pronounced itself on this matter. In the Chagos Advisory Opinion, it went as far as to state that “the right to self-determination, as a fundamental human right, has a broad scope of application”. According to Jan Klabbers, “the [ICJ], admittedly, built in a safety valve when suggesting that self-determination, ‘as a fundamental human right’, has a broad scope of application (§ 144). But what this suggests is something coming close to the older idea of external self-determination (i.e. secession) as ultimum remedium in the face of gross oppression, useful in those circumstances where all else fails, and perhaps conditional on much blood already having been shed”. Certainly, this is one way of reading the Chagos case. A number of scholars do not view that gross human rights violations may constitute a right to exercise external self-determination. According to Marcelo Kohen, oppression itself can never create a right to secession. He also suggests that the ICJ’s acknowledgments that there exist “radically different views” on the right to remedial secession shows the difficulty of establishing a customary law on this doctrine.

In light of the foregoing controversies, the UK Supreme Court, by deliberately choosing to endorse the Quebec judgment, has not only applied but also contributed to further development of the law of self-determination outside the colonial context. Some may argue that this approach gives a green light to any secessionist claims and leaves room for abuse of the right to self-determination. Such arguments, however, are unpersuasive and counter-intuitive. The Quebec type judgments only prove that the right to external self-determination does not apply in situations where there is no evidence of gross human rights violations. The UK Supreme Court ruled just that in the case of Scottish referendum. This approach would equally exclude claims of Catalonia and undoubtedly dismiss abusive claims of the Russian controlled territories in Ukraine. Certainly, no legal standard may prevent the abuse of it. At the same time, abuses or violations of international law should not prevent the potential for further clarification and development of the right to self-determination as a principle that prevents oppression on part of a parent state.