Scotland’s Vote to Stay in the UK Raises the Question of When Other Groups Should Have the Chance to Secede

Posted in: International Law

Last week, voters in Scotland defeated a measure that, if passed, would have resulted in their exit from the United Kingdom. By most accounts, Scots voted their wallets rather than their hearts, believing that the economic benefits of union outweighed considerations of national pride.

A “yes” vote on the secession referendum would have required resolution of a host of complicated questions, including currency, EU membership, and whether the UK would remain a nuclear power. Rejection of the ballot initiative takes those matters off the table, even as promises made by Prime Minister David Cameron raise other questions about how greater autonomy for Scotland will now be implemented.

How those questions will be answered remains to be seen, as Cameron already faces resentment from ministers and back-benchers in his own party who worry that implementation of his promises will place England at a disadvantage relative to Scotland. But the very referendum itself raises a more fundamental question for international and domestic law: When should secession votes even be held?

That broader question is not merely theoretical. Western powers—including the UK and the United States—have treated the Crimean vote to secede from Ukraine and join Russia as fundamentally illegitimate, and continue to oppose secession efforts by separatists in eastern Ukraine. Meanwhile, one sees separatist movements throughout the world, including: Catalans seeking to leave Spain; Kurds who have autonomy in Iraq and favor statehood; Tibetans seeking to leave China; Francophones in Quebec seeking independence from Canada; and many more.

What principles govern the question of when secession is permitted? And apart from legal constraints, when is it wise policy for secession to occur?

International Law: No Secession Without Permission

Officially, the answer to the core legal question is clear under international law. Sub-units of a nation-state have no right to secede from that nation-state without its permission. Thus, a territory that is recognized as a part of a nation-state—as Scotland is a part of the UK and as Crimea was recognized as a part of Ukraine—cannot secede without permission. In a nutshell, Prime Minister Cameron was not being hypocritical when he declared that the Crimea referendum was illegal even as his government agreed to be bound by the result of the Scotland referendum. The crucial difference is that Ukraine did not agree to the Crimea referendum, whereas the UK agreed to the Scotland referendum.

Why is there no international law right to secede? The cynical answer is that international law is made by nation-states and nation-states do not want their territories to be carved up without their consent.

Although thus rooted in the self-interest of nation-states, the international norm against unilateral secession also plays an important role in maintaining peace.

Existing national boundaries are often arbitrary. There are notorious examples—such as the World War I-era Sykes-Picot Agreement that formed the basis for the modern Middle East without much regard for local loyalties. But even boundaries that we imagine as “natural” are typically the result of centuries of conquest, counter-conquest, and arbitrary line-drawing. Consider that Charlemagne’s empire, though now typically conceived as a medieval French state, also included substantial parts of modern-day Germany, Italy, and other countries.

As a consequence of the inherent arbitrariness of national boundaries, a right of unilateral secession would lead to chaos and war. Indeed, even without such a right, the possibility of creating facts on the ground often leads separatist movements to use force in an effort to redraw national boundaries. For example, the so-called Islamic State (IS) recently announced that it aims to erase the Sykes-Picot boundaries. International law alone cannot prevent such efforts but it should not legitimate them.

Fuzziness at the Edges of International Law

To be sure, international law can be said to validate separatist movements to a considerable degree. Although international law does not authorize violent separatist movements, if such a movement succeeds in controlling territory and gaining recognition of other sovereigns, it becomes a nation-state. One need not even look abroad for examples. The United States left the orbit of England without the mother country’s permission, and became a sovereign nation. Although international law has changed considerably since the Revolutionary War, on this particular it remains the same: illegal acts of secession become valid under international law if they succeed.

Moreover, some politicians and scholars argue that international law ought to recognize a right to secede for regions in which a minority population is being oppressed. Countries (including the U.S. and most other NATO members) that recognize the sovereignty of Kosovo—which declared independence from Serbia in 2008—appear to be acting partly on the basis of this emerging norm. The same war crimes that led to NATO intervention in Kosovo in 1999 played a role in the recognition decisions of these countries.

Meanwhile, although Russia opposed both NATO intervention in Kosovo and Kosovar independence, it has cited Kosovo’s secession without Serbian permission as support for its position that Crimea was legally entitled to secede without Ukraine’s permission. But that analogy should probably be rejected because Russian speakers in Crimea in 2014 faced nothing like the threat of ethnic cleansing that faced Kosovar Albanians in 1999.

Accordingly, and notwithstanding Russian efforts to muddy the picture, the basic outlines of international law are clear: In general there is no unilateral right of secession; there may be an emerging norm permitting unilateral secession by oppressed minorities; and regardless of the reasons, a group that succeeds in seceding and maintaining control over its territory becomes a de facto sovereign and based on recognition by other sovereigns can become a genuine sovereign nation-state.

When Should a Nation-State Permit Secession?

The foregoing analysis of international law makes evident an irony: The nation-states most likely to authorize secession referenda are just those least likely to be required to do so, even under the most expansive view of an international law right to secede for oppressed minorities. That’s because a country that oppresses its minority population is unlikely to give in to that minority’s aspiration for independence. In contrast, democracies that respect minority rights will be more likely to take seriously the claim by members of a minority group that they are entitled to secede.

Even so, liberal democracies do not grant a secession vote to every constituency that seeks one. Many ethnic minorities are dispersed throughout the nation-state’s territory, so secession of no particular territory would grant them national self-determination. In other circumstances, the demand for secession may be seen as fundamentally unjust—as when Southern states sought to secede from the Union so that they could preserve the institution of slavery.

Under what circumstances do states permit secession or secession votes? We can identify two paradigms.

First, the new nations created in the wake of World War II were a product of decolonization, in recognition by the colonial powers that the territories they were relinquishing were never really theirs to begin with. Even in territories where the local population voted for local officials, they typically were not treated as full members of the home polity. We can categorize the states that emerged from the dissolution of the Soviet Union in the same way. In none of these cases would it be quite accurate to say that a fully integrated unit of a nation-state broke off to become an independent nation. Rather, it would be more accurate to say that one nation gave up its control over what were all along recognizably distinct entities.

Second, we can point to a small number of relatively recent cases in which it was proposed that a unit of a federal state be permitted to break away—as in the Scotland vote and similar referenda in Quebec—or in which the units of a federal state mutually agreed to go their separate ways—as when Czechoslovakia broke into the Czech Republic and Slovakia.

We are unlikely to see many more decolonial secessions for the simple reason that the colonial era is largely over. Still, there may be a few exceptions. Although Israel’s Likud-led government and the most violent Palestinian nationalists sometimes appear to be acting in concert to delay it, a sovereign Palestine in Gaza, the West Bank, and parts of Jerusalem seems inevitable. More speculatively, a gradually liberalizing Chinese Communist Party might eventually conclude that Tibetans and possibly Uyghurs in Xinjiang should be permitted to choose independence. And there remain a few pockets of colonial holdings elsewhere, such as Puerto Rico, whose residents have repeatedly defeated referenda for independence or statehood.

As for secession votes within federal systems, these are likely to recur from time to time, precisely because federalism is often chosen as a compromise between tighter integration into a unitary government and independence. So long as the reasons for avoiding full unitary status remain operative, some people will find the partial autonomy afforded by federalism insufficient and will thus agitate for a secession vote.

Put differently, despite Prime Minister Cameron’s pronouncement that Scotland’s opportunity for secession was a one-time offer, it would not be surprising if, some years down the road, pressure builds for another referendum.

Posted in: International Law

Tags: Legal