SNP 'could use international law' in push for indyref2, says former UN adviser

The Scottish Government could use international law and the “principle of self-determination” to ramp up demands for a referendum on independence, a global constitutional law expert has said.
Nationalists want a repeat of the 2014 referendum in ScotlandNationalists want a repeat of the 2014 referendum in Scotland
Nationalists want a repeat of the 2014 referendum in Scotland

The International Court of Justice has recently affirmed this principle, although it is "fairly narrowly framed", according to Professor Marc Weller of Cambridge University.

The expert also said the prospect of another referendum being held eight years after the previous vote was "quite reasonable in a democratic society”.

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But he stressed “Scotland can only succeed as a state within the EU if it can demonstrate that it has obtained the fullest consent from Westminster” over the potential move to become an independent nation.

The SNP set out an 11-point roadmap to a referendum at the weekend.

Prof Weller is an expert in international law and international constitutional studies at Cambridge University, but is also a practicing barrister. He has served as a senior legal advisor to the United Nations, and was a legal advisor on the Kosovo peace process.

Nicola Sturgeon has warned she could mount a challenge in the UK Supreme Court if a referendum is denied in the event of a pro-independence majority at the Holyrood elections in May. But Prof Weller raises the prospect of international courts getting involved in an article for The Scotsman.

"Scotland can also appeal to the principle of self-determination in international law," he states.

"This principle was recently affirmed once more by the International Court of Justice in the Chagos Islands advisory proceedings brought by the United Nations General Assembly in relation to the UK."

This concerned a colonial territory, though, and it remains unclear whether this principle applies outside that context.

But Prof Weller said Scotland's right to leave the UK was "established informally in UK constitutional practice" after the 2014 referendum.

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"International law recognises such a constitutional grant of authority, whether made express in the constitution or implied in constitutional practice," he states.

"This internal, constitutional entitlement is then reflected in the international law doctrine of constitutional self-determination.”

He adds: "According to the legal doctrine of uti possidetis, the right to self-determination through a referendum outside of the colonial context applies only to larger, constitutionally recognised units – in this instance Scotland."

Where the principle of self-determination applies, Prof Weller adds, it is "generally" implemented through a referendum.

"Hence, if it is clear that Scotland is entitled to opt for independence, and if the means to do so is through an act of will of its population, then it follows that the central government should not be able to obstruct the implementation of that right by refusing a referendum," he says.

Scottish Government Constitution Secretary Mike Russell published the roadmap to a referendum at the weekend, which suggested if the UK Government didn't grant the poll, it would have to accept Holyrood had the power to stage a repeat of the 2014 vote or mount a legal challenge.

But the UK Government has said that another referendum should not take place for a generation, in line with the SNP's position during the last campaign.

Prof Weller says: "Holding a second referendum after some seven or, in actual fact perhaps more likely eight years, seems quite reasonable in a democratic society.

"This would be two full electoral cycles for most states."

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