Jockophobia

The Scottish people may have a right to self determination, but as a matter of international law, we have no right to secede from the United Kingdom. A couple of weeks back, I delivered a lecture to our honours students on the concept of territorial integrity in international law, and that, in a nutshell, was the inconvenient, take away message from the class.

Unless a "people" is forcibly redeeming itself from colonialism, the oppressive domination by an alien people, and denied equal access to government, international law remains leery about recognising the right of sub-state communities unilaterally to blast apart the borders of recognised states, like the alien wean popping out of John Hurt's belly.  As the Supreme Court of Canada said, in the Quebec reference of 1998, in international law:

"... the right to self-determination of a people is normally fulfilled through internal self-determination - a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances."

Would-be Napoleons know that international law will not now permit territory to be acquired by force. But as the Russians have demonstrated in Ukraine, and the effective annexation of the Crimea, the discourse of self determination, married to dirty tricks, can allow looming territorial neighbours to abuse salami-slicing tactics to de facto acquire territory which could not be won de jure with a tank or at the barrel of a gun. 

That is one of the reasons that the General Assembly of the United Nations has recently adopted this resolution, reaffirming the principle of territorial integrity and that the Crimea remains, as a matter of international law, part of the Ukraine. The breakaway territories of Georgia, South Ossetia and Abkhazia, raise similar anxieties, both in terms of the Russian influence, but also in terms of the basic principle that international harmony is best promoted by upholding the integrity of states within their recognised borders. 

Kosovo, and the judgment of the International Court of Justice on the legality of its declaration of independence from Serbia, may have undermined traditional conceptions about the preconditions for unilateral secession, but even taking these into account, Scotland enjoys no right to secede. If you cast your mind back to the Crawford and Boyle UK government paper of 2012, on international law aspects of the referendum, they talked about "negotiated independence" as opposed to secession. 

But if the UK government had decided to cut up rough, to block the referendum, or ignore its outcome, they would be behaving entirely within their rights under international law as it is understood today. Replace the word "Quebec" with Scotland and the word "Canada" with the United Kingdom in this section of the Canadian Supreme Court Quebec secession reference, and you get the idea. 

136.  The population of Quebec cannot plausibly be said to be denied access to government. Quebecers occupy prominent positions within the government of Canada.  Residents of the province freely make political choices and pursue economic, social and cultural development within Quebec, across Canada, and throughout the world. The population of Quebec is equitably represented in legislative, executive and judicial institutions. In short, to reflect the phraseology of  the international documents that address the right to self-determination of peoples, Canada is 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".

The students looked a bill shell-shocked at these tidings, certain that they would find in international law some recognition for the basic democratic rights that they had all exercised last September. But you won't find any such recognition. Self determination, at last legally, does not mean what most of the punters think it means. But after class, I find myself lingering most over this idea of "internal self determination" in the context of the rampant Jockophobia presently gripping elements of the Conservative Party and their friends and allies in the tabloid and broadsheet media. 

You could be forgiven for thinking that the Tories were not running candidates north of the Tweed, so outraged are they by the prospect of David Mundell setting the political agenda for the Plain People of England, and subjecting the Nats to "no platform" style rhetoric, in the hopes of appealing to the English folk who blether to Matthew Parris, who formerly did not "harbour any feelings, positive or otherwise, towards Scotland", but who are now feeling got at, cantankerous and queerly victimised. 

In the hopes of pleasing these people, and of undermining the chances of a minority Labour government being formed, we are seeing a vigorous attempt to tar and feather the SNP as unconscionable, crackerjack, wabbit-eyed separatists, and illegitimate actors in British politics. "We refuse to negotiate with any political party, unless and until it renounces its separatist agenda and lays down its commitment to asking irritating questions about how Britain is governed." But take heart. International law tells us, we must press for internal self-determination. Inconvenient, it may be. Awkward, no doubt. But  England must expect the Nationalists to strive to dismantle and to rebuild the foundations of the British state from within. 

Although the Nats are the explicit target of these Tory diatribes, their real objective is to pre-emptively de-legitimise the idea of a minority Labour government taking office with Nationalist votes, even if such a government would command stronger support in the Commons than a Tory minority.  The real victims in all of these antics are not the SNP - but the pigeon-hearted Labour Party, who predictably enough, seem content to go along with their own annihilation at the hands of Fleet Street and Conservative Central Office.

The exaggerated polarities of Yes and No are a clumsy prism through which to see the ambivalent and warring sentiments and preferences at work in the 2014 referendum. They are even less apposite, less helpful, in trying to think through and act constructively in its aftermath. As international law reminds us, self-determination is not only about independence, and the creation of a separate state, but about how we are governed within the United Kingdom. As Shakespeare did not say, a real and meaningful union must be one "which alters when it alteration finds."