‘The Saltire in the Sporran’: Scotland Between Devolution and Independence

Abstract

The ongoing struggle for Scottish independence touches on a range of interests which find strong bases in international law, resulting in a meeting of norms which requires an assessment that allows the core character of each of the relevant rights to survive. This article traces the uneasy history of the Union between the Kingdoms of England and Scotland, the changing Scottish attitudes towards Union, and the rise of the independence movement in the 20th century. It examines the development of devolution and outlines the constitutional settlement reached through the Scotland Act 1998, which led to the reestablishment of the Scottish Parliament and envisaged a distribution of competences, with ‘devolved matters’ being allocated to Scotland, while ‘reserved’ matters remained within the authority of Westminster. In its main part, the article investigates the asserted right to self-determination of the people of Scotland, taking as its starting point the codification of that right in the international human rights covenants of 1966. It critically examines the consequences which the distinction between internal and external self-determination generates for the Scottish situation and the relevance of the so-called remedial theory for this scenario. Particular emphasis is placed on the question what impact, if any, the British withdrawal from the European Union (which was effected in spite of a large vote in Scotland in favour of remaining within the EU) has on the right to self-determination. It also explores the existence of other interests which have to receive consideration under international law where an assessment of the right to self-determination is to be made (such as the territorial integrity of the metropolitan State and the human rights of persons living on the territory of the separating entity) and examines the need for a solution that employs a balancing mechanism to appreciate the core characters of the relevant rights. The article also considers the possible answers to the ‘Scottish question’ which are currently at the centre of public debate. Particular space is given in that regard to the option of a referendum on independence (which would be the second one since the Scottish Parliament had been reconvened). The article explores the possible legal basis for such a referendum under domestic law and, in that context, the question whether the Scottish Parliament could make the relevant arrangements without prior authorisation by the Parliament of the United Kingdom. But it also examines a potential right to a referendum under international law and refers, in that regard, to the link between self-determination and the need to evaluate the will of the people which was outlined in the case law of the International Court of Justice (ICJ). It investigates the question whether such a link can be assumed only in the case of peoples under colonial regimes but suggests that, on the basis of the right to self-determination as enshrined in the international human rights covenants, the need for consultation is even more strongly indicated in situations concerning peoples outside these circumstances.