Secession is a conditional right not an absolute one
An assumption that I’ve seen come up a number of times in the debate around Scottish Independence is that Scotland or any other potential nation has a right to cecede. While I agree that as a practical matter, Scotland probably can decide to quit the UK and deserves to have that decision respected, that is not a specific example of a general right. I explained why in a post from 2014 written in response to Russia’s annexation of Crimea:
…[l]eaving aside the difficulty of conducting a free and fair election in a region under military occupation, even if a majority of the population in the Crimea legitimately did wish to join Russia this would not in and of itself be enough to legitimate the annexation. For good reasons international law balances the right of a people to self-determination with respect for the territorial integrity of nations.
History furnishes another of good examples of where self-determination was clearly a noxious doctrine. Perhaps most notably the South’s bid for independence during the American Civil War was justified in terms of self-determination. However, virtually everyone would now accept this demand was trumped by concerns for the territorial integrity of the US and the human rights of slaves.
One of the best expositions of the legal issues involved in questions of self determination comes from an opinion delivered in 1996 by the Canadian Supreme Court.* It was asked to deliver a judgement on whether Quebec could unilaterally secede from Canada by voting to do so in a referendum. They argued that international law gave them no such right:
“[A] right to secession only arises under the principle of self-determination of people at international law where “a people” is governed as part of a colonial empire; where “a people” is subject to alien subjugation, domination or exploitation; and possibly where “a people” is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. 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. Quebec does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development. In the circumstances, the “National Assembly, the legislature or the government of Quebec” do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.”
To see why this is almost certainly the right- as opposed to merely the legally correct – position consider the Supreme Court’s Judgement on what allowing unilateral secession would do to the principles underlying the Canadian constitution:
“Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. Democratic rights under the Constitution cannot be divorced from constitutional obligations. Nor, however, can the reverse proposition be accepted: the continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed. There would be no conclusions predetermined by law on any issue. Negotiations would need to address the interests of the other provinces, the federal government and Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities.”
This could be applied to the Crimea in a number of ways. In particular, we should be concerned about what happens to minority populations like the ethnic Ukrainians and Tartars if the province is annexed to Russia.
However, these matters are relevant far beyond the Crimea. For example, they raise questions about the validity of claims for independence by wealthy regions (such as Northern Italy or Catalonia) who resent supporting their poorer compatriots. Therefore, I have sympathy for Madrid’s refusal to recognise the legitimacy of the proposed referendum in Catalonia.
And while I believe that a Yes vote in the Scottish referendum should be respected, the path to independence would still require negotiation. This means that statements from the SNP about what will happen after independence need to be treated with caution. They cannot dictate the terms on which it will happen and London will have its own objectives in any negotiations.
Self-determination is just one value and it is not (and should not) be some kind of trump card. It has value when it makes democracy possible. However, it is not a valid way for groups to avoid the impact of democratic decisions that have gone against them.
Besides the point I made above, I’m unsure how relevant this is to a second Scottish independence referendum. To borrow a phrase from Canada’s Supreme Court justices, I don’t think Britain’s “constitutional order could not be indifferent to a clear expression of a clear majority” of Scots that they wished to leave the UK. And there is no compelling rationale I can see for not respecting their wishes. Scotland is not Crimea, the Confederacy, or even Catalonia.
It does, I suppose, put Theresa May’s decision to delay any referendum until after Brexit in a more favourable light. If the UK can theoretically block independence altogether, then it stands to reason that it can reasonably have a say in the timing of a referendum to affect it. However, I feel the case here is weak, not least because it seems to deny Scotland the remote possibility of maintaining continuous EU membership.