The UK Supreme Court Reference on a Referendum for Scotland and the Right to Constitutional Self-determination: Part II

In a previous post, I introduced the recent decision of the UK Supreme Court that the Scottish parliament lacks the authority to legislate for an independence referendum. This post will focus on the part of the Court’s judgment where it appears to have denied that self-determination applies to Scotland. While it is of course true that Scotland is not a colony in the traditional sense, as the Court noted, the ruling overlooks the doctrine of constitutional self-determination.

Self-determination ‘not in Play’

As detailed in the previous post, the argument that the people of Scotland are entitlted to exercise the right of self-determination was introduced into the case by the Scottish National Party (SNP), the governing party in Scotland. In response, the Supreme Court confirmed the principle that UK law should be interpreted in harmony with international law. However, this preference could only be applied where UK statutory provision ‘is not clear on its face’ (Para 87).  

The Court noted the principal international expressions of the right to self-determination, including the UN Charter, UN General Assembly Resolution 1541 (XV), and common Article 1 of the Covenants on Human Rights. Yet, it concluded its discussion of the matter that only takes up a few paragraphs in the 34-page judgement, that ‘the principle of self-determination is simply not in play here’ (para 88).

The Court based itself to a large extent on the Quebec reference in the Canadian Supreme Court, which had held that self-determination in the sense of unilateral secession applied only in relation to colonies, or analogous cases where a definable group is oppressed or denied political representation. [Canada Supreme Court Reference, para 138.] No such right to unilateral secession would arise where the overall state represents the whole of its people. In other cases, the state concerned is ‘entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states’ (para 154).

The Canadian Supreme Court added that:

 The right to self-determination of a people is normally fulfilled through internal self-determination … A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises only in the most extreme cases and, even then, under carefully defined circumstances (para 126).

In denying that self-determination is ‘at play,’ the UK Supreme Court also referred to UK submissions to the ICJ in the Kosovo Advisory Opinion proceedings, which had noted that ‘international law favours the territorial integrity of states. Outside the context of self-determination, normally limited to situations of colonial type or those involving foreign occupation, it does not confer any ‘right to secede’ (Quoted at para 89). Of course, in the Kosovo case, the UK had actually supported independence as a matter sui generis.

In actual fact, the two authorities invoked by the Supreme Court have of course led the way in clarifying that the doctrine territorial integrity is no bar to claims to secession outside of the colonial context. In the Quebec reference, the Canadian Supreme Court confirmed that

international law contains neither a right of unilateral secession nor the explicit denial of such a right.’ [Quebec Reference, para 112). In the Kosovo Opinion, the ICJ confirmed that the provision concerning territorial integrity applies only in relations between states, and not to secessionist entities, and that therefore ‘general international law contains no applicable prohibition of declarations of independence (Kosovo AO, para 84).

The UK Supreme Court nevertheless applied the dicta noted above to the case of Scotland and found that it is not covered by any of the requirements for the application of self-determination. It is neither a colony, nor oppressed or excluded from representation in the UK. In other circumstances, it asserted, there is an ‘absence of recognition of any such right’ to self-determination in the sense of secession (para 89).

This statement is true, although only to an extent. Colonial self-determination establishes a highly aggressive right, seeking to address the historic wrong of colonialism. If the colonial state obstructs the implementation of self-determination through a referendum, the colony is entitled to achieve secession unilaterally, potentially even by conducting an armed campaign–a national liberation struggle. The potent nature of this right is balanced by its limited scope of application to colonial and similar cases.

However, both the Quebec reference and the Yugoslav precedent, on which the UK Supreme Court relies so heavily, have actually been key in developing a further emanation of the doctrine of self-determination. This is the doctrine of constitutional self-determination.

Constitutional Self-determination

While colonial self-determination is directly and immediately rooted in international law, constitutional self-determination arises from a confluence of domestic, constitutional law and international law. The interrelationship of the two was acknowledged in the Quebec Reference, where the Court noted that the ‘legality of unilateral secession must be evaluated, at least in the first instance, from the perspective of the domestic legal order of the state from which the unit seeks to withdraw,’ before moving on to the argument at the level of international law (Quebec Reference, para 83).

Constitutional self-determination is based on the reception of the international right to self-determination and secession within a state’s own constitutional order. It is not a peoples’ right of general application. Instead, it only applies to constitutionally defined entities in certain types of states or situations, as foreseen in a particular constitutional settlement.

This approach was already foreshadowed in one aspect of the application of colonial self-determination. Resolution 1541 (XV) offers to colonial peoples and territories the option of ‘association’ as a means to implement their right to self-determination. Association ‘retains for the peoples of the territory which is associated with an independent state the freedom to modify the status of that territory through the expression of their will by democratic means and through constitutional processes’ (GA Res 1541, Principle VII).

Colonial self-determination is a one-shot-deal. The right expires the moment it is exercised. Exceptionally, association transforms the international legal entitlement to self-determination into an ongoing entitlement primarily under the constitutional law of the state with which the self-determination entity associates.

For instance, in relation to the former Dutch Antilles, Article 58
(1) of the Netherlands Charter of the Kingdom of the Netherlands confirms that ‘Aruba may declare by country ordinance that it wishes to terminate the constitutional order enshrined in the Charter in respect of Aruba,’ obtaining full independence. The United States Compact of Association with Micronesia allows for its termination upon the holding of a referendum on the islands (Compact, Section 443) The then Prime Minister of New Zealand, Helen Clark, noted in relation to the Cook Islands: ’If they want to exert full independence, New Zealand will not stand in their way.’

Express Constitutional Self-determination

Constitutional self-determination extends this doctrine and practice to a number of different circumstances that quite clearly fall outside of the colonial context. Constitutional self-determination can be expressly established in the constitution of a state. Famously, the USSR constitution of 1977 provided in Article 72 that ‘each Union Republic shall retain the right freely to secede from the USSR.’ Similarly, in relation to Uzbekistan, Article 74 (1) of its constitution determines that the Republic of Karakalpakstan ‘shall have the right to secede from the Republic of Uzbekistan on the basis of a nation-wide referendum held by the people of Karakalpakstan.’

A constitution can also assign the right to secession to subjects other than full republics within a federation. Under the The Law on the Special Legal Status of Gagauzia, the autonomous territory of Moldova is transformed into a fully fledged self-determination unit should the ‘status of Moldova as an independent state’ change (Article 1). The Constitution of Ethiopia assigns an ‘unconditional right to self-determination, including the right to secession’ to ‘every nation, nationality and people’ in the country (Article 39(1)). In the case of island states, the constitution may guarantee the right of one principal island to secede from the other, as in Nevis and Saint Christopher. Art 4 (2) of the Constitution of Liechtenstein even assigns the right to secede to individual communes.

In all of these instances, the right to self-determination is grounded in internal, constitutional law. However, the analysis of a claim to secession from the outside and in terms of international law would be heavily influenced by the fact that the constitution of the state concerned itself grants a right to self-determination.

Of course, as the Quebec reference notes, secession is always possible if it succeeds; that is to say, if it establishes effectiveness even in the absence of a positive entitlement to statehood by way of self-determination. The difference is, though, that an entity that can invoke self-determination enjoys a more privileged position in its campaign for independence. Other states are more likely to accept its legitimacy and offer recognition (Quebec Reference, para 143).

Peace Settlements as Sources of Constitutional Self-determination

A constitutional self-determination entity can also be constituted through a peace agreement, which may be of international, domestic or mixed status. The Machakos Protocol of 20 July 2002 guaranteed a referendum on secession to South Sudan, after an interim period of six years (part A, Art 1 (3)). Similarly, the Kokopo Agreement of 26 January 2001 foresaw an independence referendum for Bougainville within 15 years of its conclusion (Art 1-4). South Sudan has seceded in accordance with the agreement, Bougainville has held its referendum with some delay in 2019, with implementation being discussed at present. In the Good Friday Agreement of 10 April 1998, the UK itself acknowledged the island of Ireland as a unique self-determination entity, providing though that a change in the status of Northern Ireland would occur only if the people in both parts of the island of Ireland support it in separate referenda ‘in the exercise of their right of self-determination on the basis of consent, freely and concurrently given.’ (Chapter 2, Art 1(ii)).

Dissolution of Federal-type States

Another type of constitutional self-determination arises from the dissolution of federal states. The EU assigned pre-state rights, which ordinarily only appertain to classical, colonial self-determination units, to Croatia and Slovenia only a few weeks after their declarations of independence from the Socialist Federal Republic of Yugoslavia (SFRY), and several months before their recognition as states. These included the application of the doctrine of territorial integrity and of the prohibition of the use of force to them (EPC Statement on Yugoslavia, 27 August 1991). It was later added that during the on-going process of dissolution of a federal-type state, the constituent republics that were only just emerging as successor states would already need to conduct themselves as international legal subjects, ‘in keeping with the principles and rules of international law.’ (Badinter Opinion 1, para 3). This practice was explained by the Badinter Arbitration Commission, attached to the International Conference on Yugoslavia:

in the case of a ‘federal-type state, which embraces communities that possess a degree of autonomy and, moreover, participate in the exercise of political power within the framework of institutions common to the federation, the existence of the state implies that the deferral organs represent the components of the Federation and wield effective power’ (Badinter Opinion No. 1 1 (d)).

Where the central federal institutions no longer fulfil their functions, the federal-type state is in a state of dissolution, and the constituent republics may constitute themselves as independent states under the protection of key rules of international law.

The right to self-determination and secession appertaining from the dissolution of a state can also be transformed into a constitutional settlement that preserves the option of independence into the future, much like association. This was the case of the Union of Serbia and Montenegro, which expressly reserved the right of each of its constituent republics to secede unilaterally after a period of three years (Article 60, Constitutional Charter of the State Union of Serbia and Montenegro).

Kosovo’s constitutional status within the former SFRY was also claimed to be a key feature in the eventual decision of over 100 states to accept its independence. The UK government, for instance, referenced the constitutional background to the crisis in Kosovo as one of the factors which justified its independence, noting that ‘when, in the middle of the final status process, the Government of Serbia changed its constitution to exclude any future for Kosovo outside Serbia, it effectively ended any chance of a negotiated settlement,’ making independence inevitable (S/PV.5839, 18 February 2008).

Implied Constitutional Self-determination

In addition to these types of cases, there is a further category of instances of constitutional self-determination. These are cases of implied constitutional self-determination. In those instances, there will be no formal constitutional instrument or peace agreement providing for express self-determination of a given entity, nor need there be an instance of the wholesale dissolution of a federal-type state in order to generate the option of independence for its constituent units. Implied constitutional self-determination arises where the constitutional practice of a state makes it clear that a designated entity will be released into independence, should its population clearly opt for such an outcome.

One such example is Denmark in its relation to Greenland and also the Faroe Island. While Denmark favours continued Union, and its Constitutional Act does not provide for secession, it is clear that it would give effect to a contrary wish of the respective populations of the respective entity. Over time, such practice turns into a legally protective expectation which international law would take account of.

In fact, the principal case relied on by the UK Supreme Court to deny the application of self-determination, the Quebec reference, provides the foundation for this view. There is no express provision for secession in the Canadian constitution. Yet, the Canadian Supreme Court found that the central government could not ‘remain indifferent to the clear expression of a clear majority of Quebeccers that they no longer wish to remain in Canada,’ adding with great clarity:

The right of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec chose that goal, so long as in doing so, Quebec respects the rights of others (Quebec Reference, para 87).

Here, perhaps, lies the potential misunderstanding in the ruling on Scotland. Like its Canadian counterpart, the UK Supreme Court noted correctly that Scotland would not have a UNILATERAL right to secession in the sense of colonial self-determination. However, outside of the colonial context, constitutional self-determination results in a different entitlement. When the Canadian Supreme Court noted that:

The clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations and conducting them in accordance with the underlying constitutional principles already discussed (Id., para 88).

According to this view, the democratic principle and constitutional practice based upon it has established an implied right to constitutional self-determination for Quebec. After all, Canada itself had agreed to the holding of several independence referenda in the territory (1980, 1995). Indeed, the Clarity Act, adopted in 2000, after the Supreme Court reference was delivered, confirms that, while secession cannot occur unilaterally, a positive referendum would have to result in negotiations that may lead to independence. 

The link of domestic constitutional practice to the international legal sphere is also made clear by the Canadian Constitutional Court. A state will assert that the legality or otherwise of an attempted secession is determined, at least in the first instance, by its own legal order. As the Court puts it:

… international law refers the legality of secession to the domestic law of the seceding state and the law of that state holds unilateral secession to be unconstitutional (para 143).

However, if the central government fails to negotiate in good faith about implementing a clear referendum result, including with the perspective of achieving independence, this would reduce the international legitimacy of the position of that side. Recognition of unilaterally declared independence would become more likely (id.).

Scotland as a Constitutional Self-determination Entity

Scotland’s position is certainly no worse than that of Quebec. It was formerly an independent Kingdom that voluntarily joined the union, kept its distinct culture, legal and educational system and gained significant autonomy in its governance within clearly defined territorial boundaries. In fact, the United Kingdom itself has made it amply clear that Scotland falls into the category of implied constitutional self-determination. Indeed, it has formalized this fact.

In the Edinburgh Agreement between the UK and the Scottish government on the (first) referendum on Independence of 15 October 2012, the UK government confirms that it would work together with the Scottish authorities to ensure that the 2014 referendum could take place. Moreover, much like the Canadian Clarity Act, the Memorandum attached to the Edinburgh Agreement establishes the modalities for the referendum. The agreement also commits the sides to working ‘together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom.’ This was taken to be, to the extent possible within the bounds imposed by the doctrine of the sovereignty of Parliament, as an undertaking to honour a referendum outcome as an exercise of self-determination of the people of Scotland.

The actual issue for Scotland is therefore not whether it somehow fits into the category of constitutional self-determination. It clearly does. The actual question is whether the central government can unreasonably withhold from such an entity the opportunity to actualize that right through a referendum.

However, having raised the issue of self-determination only in order to illuminate the very technical question of UK law concerning reserved powers according to the Scotland Act (1998), the SNP invited the Supreme Court to address this issue in an incidental and somewhat cursory way. Hence, it has ended up with a highly condensed and brief treatment by the Court—a treatment that might be misunderstood as denying the application of the right of self-determination to Scotland altogether.

In reality, of course, the Court has merely found that Scotland is not a classical colony. Hence, the classical right of unilateral secession does not apply. Scotland cannot simply declare independence and leave if it wishes to obtain the benefit of a legally privileged secession in international law as a constitutional self-determination entity—in fact a practical necessity given Scotland’s hope to achieve widespread recognition and EU membership as an independent state. But if it enjoys constitutional self-determination, Scotland should be entitled to assess the will of its population at reasonable intervals. And if there is a clear majority in favour of independence, both sides would be obliged to negotiate the divorce in good faith.

 A shorter version of this contribution appeared in the New Law Journal.