Does Scotland have the right to secede?

Kieran Oberman, University of Edinburgh

Kieran Oberman, University of Edinburgh

The University of Edinburgh’s Kieran Oberman discusses whether Scotland possesses a moral right to secede.

What is perhaps most striking about the debate regarding Scottish independence is not what people are saying but what they are ignoring.  When one brings the philosophical literature on secession to bear on the public debate one notices that a number of points are being assumed that require defence.  In this article I wish to address a crucial assumption made on both sides, by the No camp as much as the Yes camp, by the UK government as much as the SNP: the assumption that Scotland has a right to unilaterally decide it’s future.

What gives Scotland a moral right to secede anyway?  One plausible view of secession is that an area of a state only has a right to secede if it is suffering serious forms of abuse.  Something close to this view is defended by perhaps the most prominent theorist of secession, Allen Buchanan.  It is also the view invoked in the world’s most famous secessionist document, the US Declaration of Independence.  According to the Declaration, “Governments long established should not be changed for light and transient causes”.  Secession can only be justified in light of “a long train of abuses”.  It was the long train of abuses that George III had supposedly inflicted against the thirteen colonies that, in the eyes of the Founding Fathers, justified their bid for secession.  What “long train of abuses” can the residents of Scotland complain of?

Alex Salmond might try to construct a list of this sort.  But what about David Cameron?  It was Cameron, recall, who signed the Edinburgh Agreement that set the referendum in motion.  Cameron clearly does not think that Scotland has suffered a long train of abuses, so why did he sign the agreement?  Why did he not adopt the stance taken by the Spanish Prime Minister, Mariano Rajoy, in relation to Catalonia and refuse to permit a referendum to take place?

One obvious response is that the Scottish independence referendum is what democracy demands.  The SNP won the 2011 Scottish Parliamentary election. It would have been undemocratic to deny Scottish residents an independence referendum when they had signalled, by voting SNP, that the referendum is something they desired.  But if a referendum is to take place, why should only Scottish residents be given a vote?  Much has been written on the fact that the 753,286 Scottish people living outside of Scotland will not be able to vote in the referendum (while the 366,755 English people living in Scotland will) but little has been written on the arguably more important fact that non-Scottish people living outside of Scotland cannot vote.  Why shouldn’t the people of England, Wales and Northern Ireland get a vote as to whether their state is divided?  To say that it is not an issue that affects them is simply untrue.  It does affect them: militarilyeconomically and, for many, emotionally since they regard the union with Scotland as important to their national identity.  In short, the democracy argument for secession quickly lands us in what some philosophers have termed the “boundary problem”: the fact that before we can decide something democratically we must first decide who belongs to the demos.  One candidate solution to the boundary problem, the “all-affected-interests principle”, would not endorse a Scotland only electorate.

The Founding Fathers thought that secession could only be justified in light of a “long train of abuses”. What “long train of abuses” can Scotland complain of?

Perhaps a better argument for restricting the vote to Scottish residents is that Scotland is a nation and as a nation it has a right to self-determination.  Here we encounter the principle of national self-determination over which so much ink, and blood, has already been spilled.  I have nothing to say regarding the principle apart from to note one of its obvious drawbacks: its inability to resolve matters when more than one nation claims a portion of territory.  Many people, inside and outside of Scotland, believe that there is such a thing as a British nation, not just a British state.  (For the state/nation distinction see here).  Assuming that they are right, does the British nation not have just as much of a right to national self-determination as Scotland?  If so, shouldn’t everyone who belongs to the British nation get a vote, not just those in Scotland?

Let’s try another tack.  Perhaps, we could view Scotland as some sort of giant club.  Ordinarily, people can set up clubs – golf clubs, debating societies, whiskey-tasting associations etc. – if they so want.  And ordinarily it is up to the members of clubs to decide which other clubs they wish to affiliate to.  So why can’t Club Scotland decide whether or not it is affiliated to Club UK?  Club UK should have no say in the matter.  It is not up to umbrella organisations to decide whether or not their affiliates stay affiliated.  (Or to use another analogy, invoked here, one does not, in modern times, need one’s spouse’s consent in order to get a divorce).  This “freedom of association argument” seems to do better than the democracy and national self-determination arguments in justifying the restriction of voting rights to Scottish residents.  Unfortunately it also has at least one strange implication.  For if any group of people can secede by invoking a right to freedom of association, then there seems no reason why seceding groups must be the size of nations.  Edinburgh could declare independence from an independent Scotland.  Leith could declare independence from an independent Edinburgh.  And so on.  In fact, in the Scottish case, this objection from repeated secession has particular resonance since the MSPs for Shetland and Orkney have discussed the possibility of seceding from Scotland, in the event of Scottish independence. The philosophers who endorse the freedom of association argument are happy to embrace the possibility of repeated secession (see here and here), or something close to it, but most will balk at it.  It is clearly not something that the SNP would favour, anymore than the UK government.

Despite mass support for a referendum within Catalonia, Spanish Prime Minister, Mariano Rajoy, has refused to grant one. Photo by Ivan McClellan Photography.

We remain then at a loss as to how the Scottish independence referendum can be justified.  Nevertheless, many people will still maintain that it is justified and that the alternative approach, modelled by Spain, of denying a region a vote on its future, even after it has signalled its desire for one, is mean spirited, if not unjust.  Cameron got it right, where Rajoy got it wrong.  This certainly was the view taken by my students when we debated the matter in class some weeks ago.  And indeed, there does seem to be something to be celebrated in the fact that this referendum is going ahead.  In many parts of the world, secessionists are treated as criminals, subject to arrest, torture and other human rights abuses.  Secession is granted only after many years of violence and sometimes not even then.  When David Cameron met Sri Lankan president Mahinda Rajapaksa, at the Commonwealth summit last month, there was a marked contrast.  Rajapaksa presided over a military victory against secessionists; preventing the break up of Sri Lanka and, the UN claims, killing thousands of civilians in the process.  Cameron is prepared to permit the break up of the UK without a single shot being fired.  This contrast too seems to be to Cameron’s credit.

Perhaps the best that can be said on the subject is something like the following.  Where the borders between existing states lie is, in truth, rather arbitrary.  Today’s world map is largely the product of a history of conflict, colonialism, ethnic cleansing and gunboat diplomacy.  In this context, perhaps what we should be looking for is not so much some ideally just principle for refashioning the borders of states, but rather some means by which decisions regarding territory and secession can be made that will keep most people happy or at least minimise violence.  Since many seem to believe in the principle that large and distinctive areas, such as Scotland and Catalonia, should be able to unilaterally determine their own futures, then perhaps this is the rule that we should urge states to adopt.  But notice that this argument for the “let the disputed area decide” rule is parasitic on people’s belief in that rule; it cannot justify that belief.  If there is a deeper argument for why, as a matter of principle, it should be left to Scotland, Catalonia or any other region to decide its future, the argument remains mysterious.

This post was originally published on the Just World Institute blog.

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15 Responses to Does Scotland have the right to secede?

  1. Scott Minto says:

    The United Kingdom, and its constituent parts by proxy, are signatories to the United Nations Charter and as such any action to impede or deny the people of Scotland a right to vote would be in contradiction to the obligations to uphold self-determination.

    Article 1 in both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) reads:

    “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.“

    The United Nations Universal Declaration of Human Rights (Article 15) further states that everyone has the right to a nationality, and that no one should be arbitrarily deprived of a nationality or denied the right to change nationality.

    Further to this, the UN commissioned studies on the right to self-determination, which set out factors that give rise to the possession of the right to self-determination and are the organisation’s benchmarks. These are:

    •a history of independence or self-rule in an identifiable territory
    •a distinct culture
    •a will and capability to regain self-governance

    Scotland is a distinct country with its own traditions, national dress, land and sea borders, health service, legal establishment, education system, flag and a history of nationhood that was not discarded by the Acts of Union in 1706 and 1707.

    So beyond any reasonable debate, it qualifies under all three criteria (the Scottish Parliament representing the “capability” section).

  2. Holebender says:

    I don’t think it’s a mystery at all; history shows that when a people is denied self-determination by peaceful means they will ultimately achieve it by violence. Do we really have to push things to the extreme when a simple vote will do the job? Scotland’s referendum demonstrates laudable maturity on the part of both governments involved.

  3. James Sneddon says:

    Secede is the wrong word in the context of what your writing about. The UK is a union of countires formed into a state , is Europe a country? The country known as the UK does not exist as a “country’ . Your idea of considering a country is some sort of club is something I would expect form a 15 yr old politics student. As regards ‘moral right’ there was an election in 2011 in case you missed it.

  4. Peter A Bell says:

    Given that Scotland’s referendum on independence is happening and cannot now be stopped, this is perhaps the very definition of an academic discussion. But I am not averse. And there are a few points raised which may be worthy of comment.

    We should first of all be clear that the referendum is not something that was “gifted” to Scotland by David Cameron. Following the SNP’s 2011 election victory, the referendum was always going to happen regardless of anything that the UK government said or did. It would almost certainly have been framed as a consultative plebiscite, but the political weight behind it would have meant that it was effectively binding. Cameron merely accepted the inevitable, doubtless on advice that any attempt to act the Cnut would only play into the hands of the independence movement.

    We must be cautious about the use of the word “secession”. Although this can refer to withdrawal from a union, in this context it might be taken to imply the breaking away of one part of a nation. This sense would be inapplicable for two reasons. There is no such nation as Britain. Scotland is not a region of any nation, it is a nation in its own right. As author, James Kelman, put it,

    “Britain is not a country, it is the name used by the ruling elite and its structures of authority to describe itself.”

    [1]

    The constitutional situation is that Scotland is (nominally) an equal partner in what is (nominally) a voluntary union of two nations. Scotland’s status as a nation is no more eradicated by its being part of the UK than, say, France’s status as a nation is eradicated by its membership of the EU.

    Comparisons with Catalonia are meaningless – as the Spanish government is ever at pains to point out no matter what Mariano Rajoy may say.

    This, then, is the basis of Scotland’s claim to the right of self-determination. A claim also supported by history; by long-established practice in terms of separate institutions and a distinct legal jurisdiction; and by the prevailing concept of popular sovereignty as opposed to the parliamentary sovereignty which holds sway in England and the British state.

    Scotland does not claim to be an oppressed nation. We cite no “long train of abuses” but, rather, a list of failings of the British state. An example being the democratic deficit which results in Scotland more often than not being governed by parties that it has decisively rejected at the polls. The closest thing to a complaint of “abuse” would be objection to the imposition of policies that are anathema to the people of Scotland – such as the so-called “bedroom tax” – by a government which is generally regarded as unelected.

    The notion that the right to self-determination, once established in respect of one entity, then automatically devolves to all sub-entities therein is just plain silly. We know this, not only from the kind of people who proclaim this notion – although that is a powerful clue – but from the rather obvious fact that the factors which qualify the larger entity do not apply to the smaller units within that entity. Edinburgh does not have an ancient history as a nation. Leith does not have its own distinct education system. Neither is a separate legal jurisdiction. No right of self-determination has been established for Orkney or Shetland. They cannot simply inherit that right from Scotland without it first being established that they meet the necessary criteria in their own right.

    Perhaps the best that can be said on the subject is something like the following. Scotland is a nation. What we seek for Scotland is no more than that status and those powers which other nations commonly regard as theirs by right. Independence is normal. It is the ancient and anachronistic union which is the exception. It is the contrivance of inequitable devolution within an asymmetric union which is anomalous. We wish merely to rectify that anomaly.

    [1] James Kelman: The ‘Britain Is A Country’ Fallacy – http://nationalcollective.com/2013/05/19/james-kelman-the-britain-is-a-country-fallacy

  5. Pingback: Does Scotland have the right to secede? | Peter A Bell

  6. Andy Ellis says:

    Have to say I agree with the comments from Scott and Peter above. The simple principle, which quite obviously applies in the cases of both Scotland and Catalonia, is that they are “self-regarding” nations. The bases for this are not the same, for example the language issue is of great importance in Catalonia, but not in Scotland. It is undeniable however that the majority of the inhabitants of both “nations” regard themselves as having distinct cultures, history and outlooks. Taken together with the increasingly divergent social and political paths favoured by the centre and periphery in both cases, and the justification for regarding independence referendums as legitimate is unanswerable.

    Scott and Peter have already done a good job demolishing many of the spurious grounds used against independence, although such arguments are of course routinely trotted out no matter how often they are logically rebutted. The spectre of secession by the Northern Isles is a case in point. Quite apart from the fact that there is no evidence of any appetite for such a move (the only recent poll in the Press & Journal in Aberdeen found >80% in favour of remaining part of Scotland in the event of independence), the islands would not be entitled to any of the oil, since international precedent dictates that they would be regarded as an exclave within the Scottish continental shelf, and thus not entitled to their own EEZ or 200 mile limit.

    As Peter rightly pointed out, the UK did not “allow” the referendum in the Edinburgh Agreement; they bowed to the inevitable from a position of weakness. Self determination for Scotland, or for that matter Catalonia or Kossovo or the Basque country is not in the gift of the UK, Spain, Serbia or again Spain – it is a fundamental right.

    A principle of “keeping the most people happy” is both profoundly undemocratic and unworkable in practice. In the case of Kossovo, Catalonia and the Basques for example it would render their independence functionally impossible, no matter if 99% of their population expressed a preference for it. Advocating such an approach, or worse actively pursuing it as Rajoy seeks to in Spain, or the Serbs and their supporters do in Kossovo, is much more likely to provoke violence than simply accepting the principle that self-determination, whilst subject to certain limits or constraints, cannot be denied with reference to the kind of arguments advanced in this article.

  7. george kelly says:

    I agree that Britain in it’s own right is not a country and that it is just the name given to describe an agreement between four independent nations. In this 21st “space age” century there is no argument economic or otherwise that can stand true against the wishes of the Scottish people to have their independence. Scotland does have the right to stand on this small planet on it’s own merits with it’s own full fiscal powers. In the three centuries since the Union there is no doubt that Scotland has benefitted from it but all good things in time deteriorate and run their course and it is now time for the course of the Union to end.

  8. Brian Gordon says:

    “We remain then at a loss as to how the Scottish independence referendum can be justified. ”

    No, we did not. You justified it yourself with several very, very subjective arguments which could easily be made to fit the case for Scottish, American, Indian, Australian – or any other – independence campaign.

  9. NorthBrit says:

    On the basis of this argument, everyone in the world should be entitled to vote on everyone else’s affairs, because they are in some way affected.

    Every voter in every European country should have a vote on British “secession” from Europe.

    Greenland should not have been allowed to “secede” from Europe, based only on a narrow, “regional” vote.

    Scotland is not a region. It is a nation.

    “Its future” doesn’t require an apostrophe. Regional punctuation?

    If it is permitted to say that Scotland is a region, may I observe that on the basis of the above, the University of Edinburgh, these days, would be better described as a poly.

  10. Brian Powell says:

    Did the UK vote when Ireland, Canada, New Zealand, Australia, India and the other Commonwealth countries became independent?
    The UK was affected by their decisions but did not have a vote.

  11. Tearlach MacDaid says:

    Mmmmm – poorly researched, subjective and internally inconsistent. D-

  12. Prem says:

    Whatever waffles your toast but Scotland has always been independent until its recent history…so right to secede blah blah is not really a philosophical mute point…just saying

  13. hoddles says:

    “We remain then at a loss as to how the Scottish independence referendum can be justified. ”

    You’re going to have to try a bit harder tehn.

    Why shouldn’t a nation desire to control its own affairs? Why shouldn’t a nation take full responsibility for its actions? Why should a nation suffer a major democratic deficit in that decisions taken by Westminster are at odds with the desires of the Scottish nation? Is this any different from the impending UK referendum on EU membership?

  14. Jimmy Brown says:

    The fact is that in England one set of assumptions prevails concerning what the UK is, and in Scotland another. I am talking here primarily of popular assumptions, not legal realities or finer constitutional points.
    What I might call the predominantly ‘English’ view of the UK presumes that England somehow ‘took over’ Scotland, or made Scotland subject to her. Edward I did not manage it in his own day, but his project eventually succeeded anyway. It just took a few more centuries than had originally been anticipated.
    Not a few Scots have bought into that view, not only today but going back to the 18th Century, when the Union did at last occur. Yet more as an expedient than out of conviction. While the expedient seemed to be bringing results it would not be unduly questioned, but that is something much less than genuine conviction.
    The predominantly ‘Scottish’ view of the Union, which is in fact legally and constitutionally more correct, is that the UK came into existence in 1707 as the union of two nations.
    In both conceptions there is a certain fuzziness about where exactly Wales and Northern Ireland fit into this. Although they are obviously part of the Union, their relationship to it is not popularly regarded as constitutive of that Union, either in England or in Scotland. Wales is part of the Union because it was already considered part of ‘England’ when the Union took place, and Ireland joined that Union later (1800), with the North remaining part of it for its own special reasons when the Republic became an independent country.
    One legal point which neither the ‘English’ nor the ‘Scottish’ view of the Union admits, or can stomach, is that both England and Scotland ceased to exist in 1707. On paper, they both dissolved themselves into the new entity called the United Kingdom of Great Britain. That was the theory – and indeed the legal position – but did the theory ever become a real ‘fact’, on the ground?
    What is of great interest here is that this legal fiction – the dissolution of both the English and the Scottish nations – turned out to be just that, a fiction. Even after 300 years it still has not happened: neither the Scots nor the English accept it. Even those – I suppose a minority – who do feel strongly ‘British’ do not believe that this has brought their being ‘English’ or being ‘Scottish’ to an end.
    In fact, the most resistant to this new idea of 1707, to the effect that ‘the Scots’ and ‘the English’ no longer existed for both together had become ‘the British’, the most resistant to this idea have been the English. The Scots also rejected it, but at least – historically speaking – many of them gave it a try. Not so, I would suggest, with the English. Or, at least, much less so.
    The submersion of ‘Britishness’ into the predominant – and dominating – ‘Englishness’ is one of the things that has always stuck in the Scots’ craw.
    There are ‘cultural’ facts here which ought to astonish us, but don’t seem to. One would have thought that after 300 years of a political union the sense of ‘Englishness’ and the sense of ‘Scottishness’ would have disappeared, and a new ‘Britishness’ emerged. A new identity that would be neither Scottish nor English, but greater – and stronger – than both, to which all would primarily adhere. Yet it simply did not happen.
    The main cause, I would suggest, has been English rather than Scottish resistance. The English nation has too strong an identity to submerge itself in something else, greater than itself.
    This was never quite the case with Scotland, not so strongly at least. No doubt partly because it was always comparatively small population-wise, and therefore more in need of alliances. Only thus could it survive as a distinct entity and polity, maintaining its own identity.
    As a much bigger entity England did not need alliances to survive; instead it used them fo its own aggrandisement. It is perfectly understandable, if legally mistaken, that England as a nation saw the Union as part of the realisation of its centuries-old expansionist policies. Understandable, too, that such is the ‘popular English’ assumption concerning what the Union is.
    That same view seems, no doubt unconsciously, to underlie and animate the article above, which shows an astonishing ignorance of Scottish assumptions and sensitivities. An ignorance, that is, of what the Union is culturally speaking, and even of what it is legally and constitutionally.
    For what it is culturally speaking, both for the generality of Scots and the generality of English people, has legal and constitutional implications. A union of two nations in which they both cease to exist and become, jointly and together, one nation needs more than a legal piece of paper to bring it into reality. It needs the consent of the generality of the people of both these nations, otherwise it remains but a legalk fiction. The truth of the matter is that no such consent has ever been given – either by most English people or by most Scots.
    England and Scotland have remained what they were 300 years ago: two nations. In practice they became one state, but not – despite many efforts to bring it about, and any amount of good will all round – not one nation-state. It almost happened at various moments, usually moments of crisis, as during the Second World War. But not quite – neither entity ever dissolved itself into the bigger thing they might jointly have become.
    The end of Empire – the British Empire that was the glue of the British state – has made this more than ever apparent. The turning back, indeed the overpowering, the definitive defeat of the English expansionist imperialist project (which incidentally did a great deal of good to the world, and was not simply harmful or negative) has left its internal aspect within Britain – within the British state – unmasked. It is open to view as never before.
    Surprise, surprise – in terms of political ideas, and conceptions of what ‘Britain’ is – i.e. that it is nothing more than ‘England’ and ‘the English nation’ writ large – we indeed discover that the Edwardian project of the late 13th and early 14th Century never went away. It has been there all along, and remains alive and well in the popular English conception of how ‘Britain’ came about, and what it is.
    And this inevitably does produce the typical Scottish reaction, not dissimilar to that which occurred in the resistance to the project of Edward I and his successors. Scotland, historically, was the anti-imperial country. It lost its independence in 1707 partly as a result of trying to forsake that heritage, and it became an imperial country on England’s back, joining England’s imperial project and gaining, to some extent, from it. England said it too was losing its independence in 1707, but it did not mean it, and no Englishman genuinely or has ever believed it. England did not have to mean it, and it knew this: as the bigger and more powerful entity, it would be Scotland that would have to accommodate itself to Englishness, not the other way round. In practical terms, for England the Act of Union was not what it allowed the Scots to think it was, not what the Act said it was, and not – above all – the submersion of England in some greater entity called Britain so that England would no longer exist. On the contrary, from the English perspective it was the fulfilment of a design that went back five centuries, a staging post on that journey to ever greater power and influence, and a springboard to that further expansionism which was no longer merely European but now worldwide in its ever-expanding, imperial horizon. The Scots would be a useful tool in this project, and the pacification of England’s northern border was a necessary precondition for its success.
    But now that project has come definitively to an end. The role it played in the Second World War was maybe its finest achievement, but also its last, the grand finale on which the whole project finally sputtered and died. The world we live in now is truly different, and England has huge problems to adjust to it. Being smaller, and less cumbersome, with a different pre-1707 past to draw on, Scotland’s adjustment and her ability to rejoin this new and very different world could potentially be easier, and could help England ease herself into it as well. That is, it is easier for Scotland to jettison the imperial baggage which she acquired as part of the state legally and officially called ‘Britain’, which was actually – to all intents and purposes, and in the assumptions of the people of the larger part of it – England writ large.
    If Scotland goes, Britain dissolves, and England will at last awake from her long and lumbering state of denial, finally seeing what is self-evident to everyone else anyway. The game’s a bogey: the long trajectory of English imperial history – which as I said did do a lot of good to the world and not just damage, though there was hat too – is over. Maintaining the British state, in despite of the peoples of the two nations that formed it and for whom it became for a time a useful convenience, but whose function is now over, will serve no purpose. Except, perhaps, the kind of purpose sand has for ostriches.
    The modern world beckons. England and Scotland, the two undissolved nations of a Union that belongs to a bygone era, can both play a positive role in it. But they have to change. The gut instinct of the people was right. When English people talk about ‘the North’ they don’t mean Scotland: they mean York, or Lancaster or Newcastle, or Carlisle. And that’s as far as it goes. They mean ‘their’ North, not Scotland’s. Even after all these years of a ‘Britain’ that never supplanted their England, or the Scots’ Scotland.
    The Union does not exist as a reality, because the peoples concerned never wholeheartedly consented to it. As a convenience, it is now convenient for only one of the two parts that formed it. Yet in reality it is not even convenient for that part. Whatever short-term gain the maintenance of the Union might have for England, in terms of some revenues from resources it keeps saying are about to run out, or in maintaining for a few more years the illusion that it is still a significant power in the world, through possession of nuclear weapons, for instance, this is only to bury its head in the sand and blind itself to the reality that these days are gone. Such denial is self-destructive, and expensive unto total abject bankruptcy. It is up to Scotland to shake England out of its illusions. Scottish independence would be the final body-blow to the English imperial psyche. Hard though that blow will be, it has within it the power to heal, and save.
    Whether the Scots, that is the present residents of Scotland, have it within themselves to shake off their own internalised colonisation remains to be seen. Let’s hope so, not only for their own sake, but also for England’s. Voting for independence, and an end of Britain, will not be an unneighbourly thing to do. It is always sad to see an old friend sink into the shadow world of illusion and resentment, and a good action to free him from such when he risks becoming his own worst enemy.

  15. Henry Szuster says:

    In brief:
    Arguments (for & against) that are based historically on laws (invariably put in place by landed gentry in curly wigs – on both sides of the border) have no validity.

    Philosophical arguments should be the only measures that can be (fairly) raised in this debate.

    Therefore, I go with the entropic view that the smaller the better – take, for example, where the large multinationals like Monsanto are taking us.

    So, come the (bloodless) revolution, I shall remove myself from the comfort of my home in Colorado (in the DSA – Divided States of America), to return to Scotland and place my cross in the box that gives us an independent Leith.

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