Saturday, 14 January 2012

Scotland and self-determination

I recently said that the 'controversy' of the proposed referendum in Scotland on whether it wanted full independence or greater devolved powers was a construct of the Conservative party, to divert attention from the dire state of the UK economy.

The official line duly followed by the mainstream media is that the Scottish Parliament does not have the devolved powers to hold such a referendum, but that the UK government would be willing to grant it such powers, as long as the referendum was held on UK government terms.

Some also argue that it should not be down to the people of Scotland alone, and that any referendum held should be for the entire population of the UK.

Or they say that should the Scottish Parliament 'go it alone' and hold a referendum, this could result in legal action that could tie the process down for many years.

All of which rather conveniently forgets Article One of The United Nations International Covenant on Civil and Political Rights:
  1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
  2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
  3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

In an article Understanding Self-Determination: The Basics by Karen Paker, she defines self determination as:

The right to self-determination, a fundamental principle of human rights law, is an individual and collective right to "freely determine . . . political status and [to] freely pursue . . . economic, social and cultural development." The principle of self-determination is generally linked to the de-colonization process that took place after the promulgation of the United Nations Charter of 1945. Of course, the obligation to respect the principle of self-determination is a prominent feature of the Charter, appearing, inter alia, in both Preamble to the Charter and in Article 1.

The International Court of Justice refers to the right to self-determination as a right held by people rather than a right held by governments alone. The two important United Nations studies on the right to self-determination set out factors of a people that give rise to possession of right to self-determination: a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance.

The right to self-determination is indisputably a norm of jus cogens [compelling law]. Jus cogens norms are the highest rules of international law and they must be strictly obeyed at all times. Both the International Court of Justice and the Inter-American Commission on Human Rights of the Organization of American States have ruled on cases in a way that supports the view that the principle of self-determination also has the legal status of erga omnes. The term "erga omnes" means "flowing to all." Accordingly, ergas omnes obligations of a State are owed to the international community as a whole: when a principle achieves the status of erga omnes the rest of the international community is under a mandatory duty to respect it in all circumstances in their relations with each other.

In summary Scotland only 'offically' became part of the United Kingdom of Great Britain following the enactment of the Union with England Act of 1707,  just over 303 years ago. Even then Scotland still retained certain powers for its own, such as i.e religion and the law.

Scotland having "a history of independence or self-rule in an identifiable territory, a distinct culture, and a will and capability to regain self-governance" do have the right to self-determination. The right to self-determination does not dictate the outcome, it's not independence or nothing. They would be entirely within their rights in example to decide to remain within the union but have greater powers devolved to them, the so called devo-max option, or what I think the Conservatives call localism.

Scotland you could say has compelling law on its side for the holding of a referendum on self-determination, a fact further supported by the mandate that the SNP gained at the last elections for Scottish Parliament. The attempt by the UK government to force onto the Scottish people a referendum on it's own terms could be said to be interference by an 'outside body' on the basic civil and political rights of the Scottish people.

I suspect this may be a rather strong trump card in the hands of Alex Salmond, First Minister of the Scottish Parliament and Leader of the SNP.

1 comment:

mairede thomas said...

I think it is clear that articles 1, 2 and 3 can be applied to Anglesey in respect of a number of matters under discussion just now eg. removal of due election; installation of autocratic governance; decisions being made about wind turbine development that do not comply with international law etc etc.