Nicholas Tsagourias: Shetland ‘opt-out’ opens stack of Russian dolls

It has been said that part of Scotland wants to eschew the referendum and stay in the UK, but it doesn’t quite have that choice, says Nicholas Tsagourias

Now that the debate over the Scottish referendum has got under way, there have been reports in the press that the Shetland Islands may “opt out” from the referendum and remain part of the UK. The question, though, is whether it is legally feasible to opt out from the referendum. This has an internal constitutional law dimension but also an external, international law, dimension.

The international law dimension concerns the right to self-determination. International law recognises the right of people living in a certain territory to determine freely the legal and political status of that territory and their own political, economic, social and cultural development. This is what the principle of self-determination is about.

Self-determination can have an internal aspect where a “people” pursue their political, economic, social and cultural development within the framework of an existing state but self-determination can have an external aspect as well.

It can lead to independence and the creation of a new state, association with another state or integration into an existing state. Self-determination, however coveted it may be, can endanger a number of other important interests. It can cause political destabilisation, threaten the territorial integrity of states, bring about the fragmentation of states and threaten international peace and security if any national, ethnic, cultural or religious group is to claim self-determination.

Therefore, international law tries to contain and, if that fails, to manage self-determination in order to avoid conflict. In the first place, it recognises that if there is a state, the external aspect of the right to self-determination has been consumed. In this situation, it is internal self-determination that becomes important. Internal self-determination can be realised, for example, through constitutional and human rights protection of minorities or of different “people” or through autonomy and self-government.

The present legal and political framework that applies to Scotland is a manifestation of the internal aspects of self-determination. Federal states are another example of the internal aspect of self-determination. For example, the six republics making up the former Socialist Federal Republic of Yugoslavia (Serbia, Montenegro, Croatia, Slovenia, Bosnia and Herzegovina, Macedonia) represented their own nations. More than that, within Serbia there were two autonomous provinces: Kosovo and Vojvodina in recognition of the distinct people living within these territories.

If internal self-determination is satisfied, international law frowns upon claims to external self-determination. It is only if people’s rights are seriously violated that they can claim external self-determination, this is a case of remedial self-determination.

However, international law cannot prevent “people” from demanding independence and the creation of their own state. Statehood in this case can be achieved through peaceful means via the constitution and negotiation, or via war.

The case of Yugoslavia is again indicative. The claim of the constituent republics to statehood was opposed and triggered war. Likewise Kosovo, which was an autonomous province of Serbia, claimed independence because the rights of the indigenous population were violated by the Serbian authorities. Their claim was opposed and Kosovo became independent following conflict and external intervention. The case of Montenegro is different. Initially it decided in a referendum to stay with Serbia, forming the Republic of Serbia and Montenegro. However, in 2006, after a referendum, it decided to become independent.

When people’s demand for statehood succeeds, internal boundaries become the new state’s external borders.

Applying the above to the case of Scotland, it means that Scotland, as a defined territory, people and administrative-governmental entity, has the right to self-determination and is exercising it through self-rule or by claiming independence. Scotland finds itself in the fortunate position of having its wish to determine freely its future accepted and facilitated by the UK government.

The right to self-determination applies to Scotland as a whole – as a territory and as people – and therefore it applies to the Shetland Islands. The result of the referendum will be binding over the whole of Scotland, including the Shetland Islands, even if they vote against independence.

Furthermore, if Scotland attains independent statehood, it will succeed to the current administrative boundaries. At this stage, the Shetland Islands have no claim to internal or external self-determination.

However, once Scotland becomes independent, the situation changes. The Shetland Islands may demand more autonomy in realising the internal aspect of self-determination. They may as well put a claim to external self-determination. It is for the Scottish government to accede to such demand by granting them the right to hold a referendum.

The critical question is whether the Shetland islanders constitute a “people” for self-determination purposes. I will not attempt to answer this question other than by saying that “people” is a social construct and “peopleness” can be engineered through history, culture or politics. A sense of difference may not be innate in people but an acquired quality.

All of the above is perhaps conjecture but the message is that self-determination and state creation resembles the infinite nest of Russian dolls. If people break away from a state to form their own state, other people living within the new state may equally want to break-away.

• Nicholas Tsagourias is a professor of international law and security, until recently at the University of Glasgow