On 23 November 2022, the UK Supreme Court issued an
important judgment on the question of the Scottish referendum. The judges
unanimously ruled that the Scottish government could not pass legislation
paving the way for the second referendum without the approval of the UK
parliament. The reasoning of the UK Supreme Court is heavily based on the
national law. However, as the Scottish National Party relied on the right to self-
determination, the UK Supreme Court had to also examine the scope of the right
to external self-determination outside the colonial context and to determine
whether it applied in the case of Scotland. In two paragraphs (88-89), the Court
determined that the scope of the principle of self-determination had been
clarified in the Reference re Secession of Quebec (hereinafter Quebec case) of
the Supreme Court of Canada (1998) and applied “with equal force to the
position of Scotland and the people of Scotland within the United Kingdom”.
The Court recognised that, according to the Quebec case,
the international law right to self-determination only generates, at best, a right
to [i] external self-determination in situations of former colonies; [ii] where a
people is oppressed, as for example under foreign military occupation; or [iii]
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.
The third situation of external self-determination recognized in the Quebec case
has been the most contested in legal scholarship. This situation concerns the
right to secede of a group of people or minority in case of their denial of the right
to internal self-determination and gross violations of human rights. The Supreme
Court of Canada in the Quebec case confirmed that such a possibility may exist
even if it could not pronounce itself unequivocally that such a rule is established
under international law. Interestingly, the UK Supreme Court did not make a
difference between the three above situations of external self-determination, but
only confirmed that, just like in Quebec, none of these situations applied to
Scotland.
The Court addressed the complex question of the right to self-determination
outside the colonial context in a rather simplistic way. Without a comprehensive
elaboration of the right to self-determination, the Court endorsed
the Quebec standard of self-determination, a standard that leaves room for
creation of states without the consent of a parent state in situations of denial of
internal self-determination and gross human rights violations. To my knowledge,
this is the first time, since the Quebec judgment of 1998, that another higher
court fully endorses its reasoning.
Certainly, Quebec is not the only decision that recognises the possibility for a
group of people or minority to secede in case of a denial of internal self-
determination and systemic human rights violations. This doctrine enjoys
support in earlier judicial decisions and opinions. Already in 1921, the
Commission of Rapporteurs in the Aaland Island dispute noted that
The separation of a minority from the State of which it forms part and its
incorporation in another State can only be considered as an altogether
exceptional solution, a last resort when the State lacks either the will or the
power to enact and apply just and effective guaranteed (religious, linguistic
and social freedom).
In 1994, the African Commission on Human and People’s Rights in the case
of Katangese Peoples’ Congress v. Zaire maintained that
In the absence of concrete evidence of violation of human rights to the point
that the territorial integrity of Zaire should be called to question and in the
absence of evidence that the people of Katanga are denied the right to
participate in government as guaranteed by Article 12 (1) of the African
Charter, the Commission holds the view that Katanga is obliged to exercise a
variant of self-determination that is compatible with the sovereignty and
territorial integrity of Zaire.
In both cases, the disruption of territorial integrity was possible if there was
evidence of serious violations of human rights and a denial of internal self-
determination. Besides jurisprudence, it can be argued that Bangladesh and
Kosovo provide models of self-determination triggered by, among others,
systemic and gross human rights violations.
The foregoing finds support also in literature. According to James Crawford,
“external self-determination may sometimes be justified as the only method of
preventing systematic oppression of a people within a State”. Bruno
Simma supported the view that secession could be justified even for minorities
in special circumstances. Marc Weller has argued that “in such a case, where a
constitutionally relevant, defined segment of the State population has been
persistently oppressed, excluded from governance of its own area of compact
habitation and from the central State, and exposed to a systematic and
widespread campaign of permanent displacement, the doctrine of territorial
unity may lose its persuasive force; instead the will of people, unambiguously
expressed, may increasingly guide international action in dramatic
circumstances of this kind”.
These viewpoints are largely based on the reading of, among others, Article 1
of the UN Charter, the UN General Assembly Resolutions 1514 (1960) and
Resolution 2625 (1970) on the Friendly Relations Among Nations. The last, in
particular, provides that
Nothing in the forgoing paragraphs shall be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the
territorial integrity or political unity of sovereign and independent States
concluding themselves in compliance with the principle of equal rights and
self-determination of peoples as described above and thus possessed of a
government representing the whole people belonging to the territory without
distinction as to race, creed or color.
Many have argued that the foregoing makes territorial integrity conditional on
the respect for human rights and internal self-determination. This, in fact, is the
gist of Quebec, Aaland Island, Kongo v. Zaire and, most recently, the UK
Supreme Court on the Scottish referendum.
The International Court of Justice has not yet pronounced itself on this matter.
In the Chagos Advisory Opinion, it went as far as to state that “the right to self-
determination, as a fundamental human right, has a broad scope of application”.
According to Jan Klabbers, “the [ICJ], admittedly, built in a safety valve when
suggesting that self-determination, ‘as a fundamental human right’, has a broad
scope of application (§ 144). But what this suggests is something coming close
to the older idea of external self-determination (i.e. secession) as ultimum
remedium in the face of gross oppression, useful in those circumstances where
all else fails, and perhaps conditional on much blood already having been shed”.
Certainly, this is one way of reading the Chagos case. A number of scholars do
not view that gross human rights violations may constitute a right to exercise
external self-determination. According to Marcelo Kohen, oppression itself can
never create a right to secession. He also suggests that the ICJ’s
acknowledgments that there exist “radically different views” on the right to
remedial secession shows the difficulty of establishing a customary law on this
doctrine.
In light of the foregoing controversies, the UK Supreme Court, by deliberately
choosing to endorse the Quebec judgment, has not only applied but also
contributed to further development of the law of self-determination outside the
colonial context. Some may argue that this approach gives a green light to any
secessionist claims and leaves room for abuse of the right to self-determination.
Such arguments, however, are unpersuasive and counter-intuitive.
The Quebec type judgments only prove that the right to external self-
determination does not apply in situations where there is no evidence of gross
human rights violations. The UK Supreme Court ruled just that in the case of
Scottish referendum. This approach would equally exclude claims of Catalonia
and undoubtedly dismiss abusive claims of the Russian controlled territories in
Ukraine. Certainly, no legal standard may prevent the abuse of it. At the same
time, abuses or violations of international law should not prevent the potential
for further clarification and development of the right to self-determination as a
principle that prevents oppression on part of a parent state.
