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Can Scotland secede without permission from London, from the standpoint of international law? There's a thing called "the right of a people for self-determination". I wonder whether it's applicable to Scotland. Could they carry out a new referendum regardless of what Boris thinks on the matter?

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  • "There's a thing called "the right of a people for self-determination"" Are you trying to refer to a specific law here? Sep 20, 2020 at 0:14
  • How specific does the right of self-determination get? Scotland already exercises that right as part of the Parliament of Westminster - if Scotland has the right to secede from the UK under that right, does Glasgow equally have that right to secede from Scotland? How about a smaller town or village?
    – user28517
    Sep 20, 2020 at 2:11
  • No, there is no Article 50 equivalent. Section 30 of the Scotland Act 1998 requires permission from the UK government for a referendum to be held. This was denied 2017 and 2019. Could Scotland hold a referendum without UK permission? Sep 20, 2020 at 2:24
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    Why was my question downvoted? Sep 20, 2020 at 18:28

2 Answers 2

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There are two major relevant judicial decisions: the International Court of Justice's advisory opinion on whether Kosovo's unilateral declaration was in accordance with international law, and the Supreme Court of Canada's opinion on whether Quebec had the right under international law to unilaterally secede.

Judicial opinions aren't terribly common, because questions of secession are usually handled through force of arms. Although the Canadian decision was made by a national court, it's considered a significant work of reasoning and is often cited on this issue (for instance, it was heavily cited in briefs before the ICJ).

The ICJ held that Kosovo's unilateral declaration of independence was in accordance with international law. However, this did not mean that Kosovo could unilaterally secede. As the ICJ noted, they were not asked what the legal consequences of the declaration were and they were not asked whether Kosovo was independent. They were only asked whether making the declaration violated international law. The ICJ found that in general international law does not prohibit unilateral declarations of independence. In particular situations they might violate other rules of international law (e.g. if they're tied to an unlawful use of force or violation of peremptory norms), but in general a unilateral declaration of independence is not illegal. Again, though, the ICJ took pains to emphasize that they were not making any decisions about the right to secede. The case was only about announcing that a country was seceding.

The Supreme Court of Canada's ruling, in contrast, was about whether actual secession was allowed. The court found that it was not, under either Canadian or international law. While international law creates a right to self-determination, that right typically only justifies secession in colonial empires. In general, a people is meant to achieve self-determination in the state they reside in. When a people is fully integrated into the life and governance of their state, they are not being denied self-determination. They might not always get what they want, but if two people disagree then someone is always going to be disappointed. The court held that

A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self‑determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states.

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  • Would you say that previous events in Catalonia also relate to this? Sep 20, 2020 at 11:34
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No; the UK Supreme Court, in its judgement on the reference by the Lord Advocate regarding whether the proposed Scottish Independence Referendum Bill would refer to reserved matters, specifically ruled on the self-determination argument put forward by the Scottish National Party, as intervener, at paras 88-90.

It first refers to the Supreme Court of Canada's judgement in the Reference re Secession of Quebec [1998] 2 SCR 217, where the court "explained that Canada was a sovereign and independent state conducting itself in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction. It considered that the then current constitutional arrangements within Canada did not place Quebecers in a disadvantaged position within the scope of the international law rule." It continued:

In summary, the international law right to self-determination only generates, at best, a right to external self-determination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or 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. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions.

The UK Supreme Court took the position that this applied equally to the case of Scotland, saying:

[These observations] are also consistent with the United Kingdom’s submission to the International Court of Justice in the case of Kosovo, adopted by the intervener as part of its submissions in the present case: “To summarise, 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’”: Written Proceedings in relation to UN General Assembly Resolution 63/3 (A/RES/63/3) (8 October 2008), Written Statement of the United Kingdom in response to the Request for an Advisory Opinion of the International Court of Justice on the Question, ‘Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”, (17 April 2009), para 5.33. The submission went on to state that international law does not, in general, prohibit secession; but the relevant point, in relation to the intervener’s submission based on a right of self-determination under international law, is the absence of recognition of any such right outside the contexts described by the Supreme Court of Canada, none of which applies to Scotland.

It concluded by observing that the power delegated to Scotland under the Scotland Act "establishes and promotes a system of devolution founded on principles of subsidiarity", and does not constitute a breach of the principle of self-determination in international law.

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