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chicmac · Posted: Sun May 11, 2008 5:45 pm Post subject:

Just noticed where I said:-

"They go on to quote p1. Art1. of the UN Charter:-

"All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development." "

Should have read:-

"They go on to quote p1. Art1. of the International Convention on Civil and Political Rights:-

"All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.""

Of course this was based on the UN Charter.

chicmac · Posted: Sun May 11, 2008 8:47 pm Post subject:

Aventinian · Posted: Fri May 23, 2008 4:11 am Post subject:

Well, clearly a lot has been covered during my brief hiatus. I’ll attempt to address it all.

Firstly, I am not disputing the status of self-determination in international law - a point which was emboldened in Chicmac’s post, rather without justification as far as I can see. It exists; it is embodied in plenty of international instruments and is very much apparent. However, the quote there, to my mind, offers no interesting or revealing commentary. Perhaps a more interesting one is that of Antonio Cassese - a more illustrious figure in international legal circles, I can simply not imagine - offers a rather more precise commentary:

“self-determination appears firmly entrenched in the corpus of international law in only three areas: as an anti-colonialist standard, as a ban on foreign military occupation, and as a requirement that all racial groups be given full access to government” [his emphasis; International Law (2nd edn, 2005), p.61]

before clarifying that:

“current international law is blind to the demands of ethnic groups (not constituting a racial group) and national, religious, cultural or linguistic minorities”

Incidentally, I think you completely misread the purpose of self-determination as a solid principle emerging post-WWII. It was not simply a decolonisation measure as you suggest - there would be little point in that for the most powerful, imperial states: and it was not driven through against their will. The concept was to create democratic and inclusive states, in the realisation that despotic, dictatorial or segregationist regimes were considerably more likely to abuse their own populations and to create international instability. As with most elements of international law, it is not revolutionary in nature, but rather simply another instrument to bring about stability.

This view is echoed in countless places, and has indeed been the basis for law of self-determination for decades. A few submissions to the UN are, respectfully, not going to change that.

Moreover, the matter has already been decided by an enormously persuasive judgement in a fellow Commonwealth supreme court. In the Reference in re: Secession of Quebec, the Canadian Supreme Court made an unusual decision - unusual in the fact that such obscure questions rarely come before such courts, particularly framed in such a fashion. Regarding the right of Quebec to unilaterally secede, it held that (I apologise for quoting at length, but it is worth it)--

“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.”

The Canadian court ably demonstrates that this justifies what has always been clear: the supremacy of its own constitution and internal processes in such matters - and our own constitution echoes there’s in providing for the authority of the central Parliament in this matter. As recognised in the reference, referendums make absolutely no difference to this.

The suggestion that a Scottish or British court would find differently is, to my mind, ridiculous.

It was also argued, rather dismissively in this thread, that the Scottish must constitute ‘a people’. This is by no means clear, and indeed no consistent position has ever been given in terms of such definitions. Again, this may simply refer to people who are clearly in a colonial relationship - it need not apply to the Scottish people who are, after all, also British people.

Chicmac, you also contend that, “the right to 'territorial integrity' has no philosophical rigour or moral authority”. I disagree entirely. It is the fundamental basis for international law; indeed, it has served it well since the Peace of Westphalia and caused a dramatic reduction in aggressive war. Indeed, in many ways, it covers similar ground to self-determination: they both ensure the stability of borders - in self determination’s case, by preventing the arbitrary trade in territories which was a characteristic of historic regimes.

On the issue of whether these two principles conflict: I don’t think they do; indeed, I am suspicious of anyone who claims rights generally conflict - to me, it simply indicates a lack of a precise definition and limitation of the rights in question. What you claim as an attempt to dilute the meaning of self-determination has been nothing of the sort, but rather the constantly increasing precision of definition inherent in almost all legal systems. There has been no change in application over the decades, nor has there been any undermining of what is contained in the UN Charter and associated documents.
_________________
The resident pantomime villain.
'Socialists cry "Power to the people", and raise the clenched fist as they say it. We all know what they really mean—power over people, power to the State.'

Aventinian · Posted: Fri May 23, 2008 4:21 am Post subject:

A few related issues:

chicmac · Posted: Fri May 23, 2008 9:10 am Post subject:

chicmac · Posted: Fri May 23, 2008 9:12 am Post subject:

Aventinian · Posted: Fri May 23, 2008 12:41 pm Post subject: