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chicmac
Nationalist
Joined: 18 Mar 2008
Posts: 153
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 Posted: Thu May 08, 2008 12:02 am Post subject: |
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| Aventinian wrote: | | Alasdair wrote: | | And now, following PMQ's, Brown has refused to endorse Alexander's position, going so far as to deny that she wants a referendum now!?! |
Indeed - and that exchange in full:
| Quote: | Mr. David Cameron (Witney) (Con): I join the Prime Minister in paying tribute to Trooper Ratu Babakobau, who was killed in Afghanistan on Friday.
The whole House will also want to send our condolences to everyone caught up in the Burmese cyclone. The Prime Minister knows that he will have the full support of those on the Opposition Benches in any action needed for the aid and assistance that clearly will be necessary.
I join the Prime Minister in congratulating my hon. Friend the Member for Henley (Mr. Johnson) on his magnificent victory. I am sure the Prime Minister has always secretly wanted to see the back of Ken Livingstone, and I am sure he will have a fruitful relationship with my hon. Friend. [AN HON. MEMBER: “Will you?”] Indeed. Following Thursday’s elections, the Prime Minister said that he would listen and lead, so let me start with an issue of leadership. Labour’s leader in Scotland, Wendy Alexander, says that there should be a referendum now on Scottish independence. Does he agree with her?
The Prime Minister: That is not what she has said. The Conservative party, the Liberal party and the Labour party have joined together in setting up the Calman review, the commission on devolution. I hope that we can see progress in that commission, and we will review the progress before making any further decisions. I thought that that was the policy of the Conservative party, which supported the commission.
Mr. Cameron: I think the Prime Minister is losing touch with reality. This is what Wendy Alexander said:
“I don’t fear the verdict of the Scottish people,”
she told BBC Scotland on Sunday,
“Bring it on.”
What else could that possibly mean? Can I ask the Prime Minister again? Does he agree with Wendy Alexander or not? It is not much of a leadership if no one is really following him.
The Prime Minister: The Calman commission has been set up to review the progress of devolution. I believe that all parties in the House will welcome the fact that it is looking at all these issues. When we review the progress of the Calman commission, we can make further decisions.
What the leader of the Labour party in Scotland was pointing to was the hollowness of the Scottish National party, which said that it wanted independence, said that it wanted it immediately, and now wants to postpone a referendum until 2010–11. That is what she was pointing out. She was making it clear that what the Scottish National party was doing was against its election manifesto.
Mr. Cameron: The one thing that people thought about this Prime Minister was that he was quite a good political fixer—and he has now lost control of the Scottish Labour party. So there has been no leadership on the Union. |
Sounds like it's being rather quickly backpeddled.
Someone really ought to collar Wendy and ask what the bloody hell is going on. It's nothing short of ludicrous that there's this amount of doubt over what she meant on such a subject. |
What doubt? For once Wendy's pronouncement could not have been clearer.
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chicmac
Nationalist
Joined: 18 Mar 2008
Posts: 153
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| Posted: Thu May 08, 2008 12:13 am Post subject: |
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| Aventinian wrote: | Also notable today - on the Daily Politics, Brian Wilson, former Scotland Office minister, made the point that it is not within the powers of the Scottish Parliament to have a referendum and whilst a debate and vote may be held on approving the idea, it was ultimately down to Westminster to grant.
Andy Burnham, the SoS for Culture, Media and Sport, representing the cabinet, seemed to agree with this analysis, as did Nick Robinson - who made something of a lengthy speech on it. |
OTOH the rest of the universe tend to a more rational, Human Rights based stance.
To quote the United Nations Council on Human Rights:-
"the United Kingdom has made it clear that it would respect the result of a referendum on independence in Scotland."
What do these characters think "SELF-determination" means? |
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Holebender
I need ma own bl**dy forum!
Joined: 04 Apr 2007
Posts: 1261
Location: Here or There
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| Posted: Thu May 08, 2008 12:44 am Post subject: |
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| William_Cleland wrote: | | Before you guys get too excited, bear in mind that the person who frames the legislation gets to set the question and you only need to look at opinion poll data to see the kind of influence that can have. The Tories appear to be dead set against it so the Lib Dems, the Greens and Margo all have to back it for it to happen because otherwise it would all boil down to the Presiding Officer's casting vote and he's a Tory. Probably still a long shot at this point in other words. |
There would be nothing to stop the SNP tabling an amendment with their own preferred question. If that amendment is defeated they could vote against the bill with a clear conscience. I cannot see a Labour referendum question being passed against the wishes of the SNP unless the Tories and LibDems expose themselves as supremely cynical.
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Dave Coull
Independentista
Joined: 07 Nov 2006
Posts: 966
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| Posted: Thu May 08, 2008 12:58 am Post subject: |
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"Brian Wilson, former Scotland Office minister, made the point that it is not within the powers of the Scottish Parliament to have a referendum"
There is absolutely nothing in law to prevent the Scottish Parliament from holding a "consultative" referendum. Being "consultative" is a distinction without being a difference. Under English law, the idea of the "sovereignty of parliament" means that ALL referendums are "consultative" - that is, their results cannot bind parliament. It could be argued that, in Scottish law, the people are sovereign. But even if we leave that argument aside and accept that nothing can be binding on Westminster, in practice, it would be. Over the years, the UK has had quite a lot of referendums about quite a lot of issues. Even though all of these referendums were, strictly speaking, "consultative" or "advisory", there is no case on record of any British government refusing to accept the result of a referendum as binding on them.
Specifically with regard to a Scottish referendum on independence, on the 25th of May 2005 the UNITED NATIONS COMMISSION ON HUMAN RIGHTS' Sub-Commission on the Promotion and Protection of Human Rights received this expert opinion:
"Implied constitutional self-determination: The constitutional tradition of some states may establish a less formal entitlement to constitutional self-determination. For instance, the United Kingdom has made it clear that it would respect the result of a referendum on independence in Scotland."
But just suppose, just suppose for one minute, against that expert evidence to the UNCHR, against all previous practice, against solemn assurances from two previous prime ministers (Thatcher and Major), and against all common sense, a British government refused to recognise the result of a "consultative" referendum?
Well, in the words of the ancient Chinese curse, "may you live in interesting times........" |
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William_Cleland
This is Ma' Life!
Joined: 22 Apr 2007
Posts: 760
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| Posted: Thu May 08, 2008 1:04 am Post subject: |
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| Holebender wrote: | | There would be nothing to stop the SNP tabling an amendment with their own preferred question. If that amendment is defeated they could vote against the bill with a clear conscience. I cannot see a Labour referendum question being passed against the wishes of the SNP unless the Tories and LibDems expose themselves as supremely cynical. |
If this stuff about a bill not being possible if the governing party plans legislation is accurate nothing will happen now until 2010. |
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Dave Coull
Independentista
Joined: 07 Nov 2006
Posts: 966
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| Posted: Thu May 08, 2008 1:15 am Post subject: |
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William wrote "If this stuff about a bill not being possible if the governing party plans legislation is accurate nothing will happen now until 2010".
Oh, a lot of things will happen before 2010. For one thing, the pressure for a referendum on independence will continue to grow, and no I am not just talking about from Wendy Alexander and her Labour Party colleagues, and it would be quite ridiculous for the SNP government to get themselves into the position of making less and less believable justifications for delay. |
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William_Cleland
This is Ma' Life!
Joined: 22 Apr 2007
Posts: 760
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| Posted: Thu May 08, 2008 3:21 am Post subject: |
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| Labour's implosion over this issue as even The Scotsman is terming it shows the problem with the current devolution "settlement". In a truly federal system it would be normal for the state/province and federal wings of a party to be at loggerheads on an important issue like this but the UK isn't a federal system and that means that the main UK parties treat what is billed as a national parliament as if it were just another tier of local government. Waiting until 2010 is only likely to make it more obvious that the current setup doesn't really work out too well in practice so there is no obvious reason for Alex Salmond to let them off the hook. Short of advocating something like yogic flying as the solution to the UK's problems Gordon Brown and Wendy Alexander couldn't look more ridiculous if they tried. |
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Aventinian
'Our Scotland' Fossil
Joined: 10 Dec 2005
Posts: 4256
Location: Broadcasting From An Anonymous Location Within the United Kingdom.
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| Posted: Thu May 08, 2008 11:10 am Post subject: |
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| chicmac wrote: | OTOH the rest of the universe tend to a more rational, Human Rights based stance.
To quote the United Nations Council on Human Rights:-
"the United Kingdom has made it clear that it would respect the result of a referendum on independence in Scotland."
What do these characters think "SELF-determination" means? |
Self determination doesn't give any right to secession from established states. Pick up even the most basic text book on international law. Anyway, for clarification: the sovereign territorial integrity of states has been the foundation of international law since even before the Peace of Westphalia and has been recognised in damn near everything the UN has ever produced.
What you suggest is not rational, it's not accepted by anyone and is simply based on complete misinterpretation.
_________________
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.'
Last edited by Aventinian on Thu May 08, 2008 11:49 am; edited 1 time in total |
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Aventinian
'Our Scotland' Fossil
Joined: 10 Dec 2005
Posts: 4256
Location: Broadcasting From An Anonymous Location Within the United Kingdom.
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| Posted: Thu May 08, 2008 11:19 am Post subject: |
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| Holebender wrote: | | William_Cleland wrote: | | Before you guys get too excited, bear in mind that the person who frames the legislation gets to set the question and you only need to look at opinion poll data to see the kind of influence that can have. The Tories appear to be dead set against it so the Lib Dems, the Greens and Margo all have to back it for it to happen because otherwise it would all boil down to the Presiding Officer's casting vote and he's a Tory. Probably still a long shot at this point in other words. |
There would be nothing to stop the SNP tabling an amendment with their own preferred question. If that amendment is defeated they could vote against the bill with a clear conscience. I cannot see a Labour referendum question being passed against the wishes of the SNP unless the Tories and LibDems expose themselves as supremely cynical. |
It'd be a great political event! The SNP voting against their own bill, on their central policy!
What is the SNP's policy in that case? Sit back and forget about it? Because even if they do get re-elected, there's hardly any reasonable chance of them getting an overall majority. Shouldn't they be grabbing this referendum on whatever terms they can get it? After all, Alex Salmond has already accepted the possibility of a multi-option referendum.
| chicmac wrote: | | What doubt? For once Wendy's pronouncement could not have been clearer. |
There's massive doubt. Is this Labour policy? Will they vote for a referendum? Will they abstain on a vote? Will they influence the question? Is it an actual commitment or simply encouragement of the SNP to do what it promised, earlier?
I have no idea what she meant, and I'm still no clearer.
_________________
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.' |
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Aventinian
'Our Scotland' Fossil
Joined: 10 Dec 2005
Posts: 4256
Location: Broadcasting From An Anonymous Location Within the United Kingdom.
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| Posted: Thu May 08, 2008 11:38 am Post subject: |
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| Dave Coull wrote: | | There is absolutely nothing in law to prevent the Scottish Parliament from holding a "consultative" referendum. |
The SP is prevented from legislating on any constitutional matters; legislating to consult on an issue is not less touching upon it than legislating to actually change something.
Kindly recall that the bar of ultra vires is not set high: a Bill simply has to "relate" to a reserved matter to be outwith the legislative competency of the parliament. I'll wager a great deal of consideration went into that precise wording.
It is further clarified below, in subsection (3):
"For the purposes of this section, the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is to be determined, subject to subsection (4), by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances"
[subsection (4) relates to private etc law and isn't immediately relevant]
I think there's an excellent case that any referendum would indeed be outwith the powers of the Scottish Parliament. Ultimately it will be a Tory Presiding Officer and a Labour Secretary of State for Scotland (hell, it may even be a Tory by the time your bill comes around) who will decide on such matters.
Politically speaking, I think it would be best for the UK Parliament to pre-empt the question, ask a referendum on their terms rather than Alex Salmond's, and be done with it.
| Quote: | | Under English law, the idea of the "sovereignty of parliament" means that ALL referendums are "consultative" - that is, their results cannot bind parliament. |
That is untrue. A referendum can bind parliament if parliament so binds itself: the referendum for Scottish devolution was, I believe, one such referendum. Its status was already confirmed in law. Obligatory, post legislative, referendums are perfectly compatible with the concept of parliamentary sovereignty.
_________________
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.' |
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chicmac
Nationalist
Joined: 18 Mar 2008
Posts: 153
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| Posted: Thu May 08, 2008 12:18 pm Post subject: |
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| Aventinian wrote: | | chicmac wrote: | OTOH the rest of the universe tend to a more rational, Human Rights based stance.
To quote the United Nations Council on Human Rights:-
"the United Kingdom has made it clear that it would respect the result of a referendum on independence in Scotland."
What do these characters think "SELF-determination" means? |
Self determination doesn't give any right to secession from established states. Pick up even the most basic text book on international law. Anyway, for clarification: the sovereign territorial integrity of states has been the foundation of international law since even before the Peace of Westphalia and has been recognised in damn near everything the UN has ever produced.
What you suggest is not rational, it's not accepted by anyone and is simply based on complete misinterpretation. |
You are talking utter rubbish. Whenever a central seat of government has tried to use the 'territorial integrity' argument, in nearly every instance the UN have sided with rights of the sessessionists to self-determination.
In our case, the UK has signed up to the ICCPR and in addition to that legal treaty which obliges them to accept the right of self-determination in general, have also specifically assured the UN that any independence referendum result held in Scotland would be respected.
We have also had an assurance from virtually every Prime Minister in recent times, that independence was entirely a matter for the Scottish people to decide.
The settlement negotiations are a matter for both parliaments, but the decision whether Scotland becomes independent is not, other than perhaps in some face saving piece of performance art for Westminster's sake which means nothing to Scots or in terms of international legalities.
If Scotland votes yes in a referendum and the UK reneges on their assurance to the UN and their treaty obligations, then the UN will just go ahead and recognise it anyway.
Away back to your fantasy world. |
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Aventinian
'Our Scotland' Fossil
Joined: 10 Dec 2005
Posts: 4256
Location: Broadcasting From An Anonymous Location Within the United Kingdom.
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| Posted: Thu May 08, 2008 12:28 pm Post subject: |
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| chicmac wrote: | | You are talking utter rubbish. Whenever a central seat of government has tried to use the 'territorial integrity' argument, in nearly every instance the UN have sided with rights of the sessessionists to self-determination. |
Cite one case in which the UN forced, or try to force, a country at peace to grant secession to an integral part. Go on.
| Quote: | | In our case, the UK has signed up to the ICCPR and in addition to that legal treaty which obliges them to accept the right of self-determination in general |
We do, however self determination does not remotely mean what you seem to think it does.
| Quote: | | have also specifically assured the UN that any independence referendum result held in Scotland would be respected. |
When? You are aware nobody actually has the authority to make this statement, yes? It would be dependent on the approval of Parliament.
| Quote: | | We have also had an assurance from virtually every Prime Minister in recent times, that independence was entirely a matter for the Scottish people to decide. |
That's their business, it doesn't change the legal position one iota.
| Quote: | | If Scotland votes yes in a referendum and the UK reneges on their assurance to the UN and their treaty obligations, then the UN will just go ahead and recognise it anyway. |
 The UN does not recognise states. Are you suggesting that Scotland would bring about a unilateral declaration of independence?
| Quote: | | Away back to your fantasy world. |
Read a book, and stop pretending your fantasies of what the law should be are fact when even the poorest student of international law could tell you they are nonsense.
Although to be fair, I doubt you want to be corrected on your ridiculous factual inaccuracies: the rather hostile reception my measured statements of fact received is fair evidence of that. I don't imagine international law matters a jot to you; only rhetoric and emotive statements.
_________________
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.' |
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macnumpty
Getting on a bit!
Joined: 11 Feb 2006
Posts: 1844
Location: Exiled down south.
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| Posted: Thu May 08, 2008 12:38 pm Post subject: |
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And if you check the proposed Referendum question:
| Quote: | | that the Scottish Government should negotiate a settlement with the Government of the United Kingdom so that Scotland becomes an independent state. |
You'll see that it creates a grey area: the only legislation being required is the one to put forward the vote. What's actually being asked is whether or not the Scottish Government should take a particular piece of action. From what I can tell, that's not covered in Schedule 5.
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^ ^ This is Bunny. Bunny wishes that he was on the electoral roll in Glasgow East, so he could vote for John Mason. He also reminds you to read the Our Scotland Blog. |
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Aventinian
'Our Scotland' Fossil
Joined: 10 Dec 2005
Posts: 4256
Location: Broadcasting From An Anonymous Location Within the United Kingdom.
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| Posted: Thu May 08, 2008 12:59 pm Post subject: |
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| macnumpty wrote: | And if you check the proposed Referendum question:
| Quote: | | that the Scottish Government should negotiate a settlement with the Government of the United Kingdom so that Scotland becomes an independent state. |
You'll see that it creates a grey area: the only legislation being required is the one to put forward the vote. What's actually being asked is whether or not the Scottish Government should take a particular piece of action. From what I can tell, that's not covered in Schedule 5. |
Indeed, but it certainly 'relates' to a reserved power and 'the purpose of the provision, having regard (among other things) to its effect in all the circumstances' is to bring about a constitutional change.
You're quite correct, it is a grey area - but it's one that I believe Parliament has very deliberately drafted its way around. Woe betide any judge who gets in the way of that.
All the same, as I've said, it will probably end up being a political decision of the UK Government, unless the Presiding Officer decides to take issue - which I suppose is entirely possible. Once either the PO or the SoS calls it in, I think it's very definitely for the chop, legally speaking - but whether they do or not is another matter.
_________________
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.' |
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Reluctant Hero
Collecting my 'Our Scotland' Pension!
Joined: 17 Sep 2005
Posts: 2392
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| Posted: Thu May 08, 2008 7:35 pm Post subject: |
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| chicmac wrote: | | Reluctant Hero wrote: | According to the Beeb, he said this, which is as good as calling for her to go.
| Quote: | But Scottish First Minister Alex Salmond said something now "had to give".
He added: "The positions of Wendy Alexander and the prime minister are incompatible. This claimed agreement is clearly not there.
"Either she has to go, he has to go or they both have to go and I suspect he wants to stay so I think she's now in a very difficult position."
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http://news.bbc.co.uk/1/hi/scotland/7387669.stm |
Aye, but that, like the earlier accusation made by Brewer of Nicola, is NOT him calling for Wendy's head, it is simply him giving an honest appraisal of the outcome of a Labour mess of their own making.
There is a difference. or don't you see it? |
The same as there is a difference between let's have an independence referendum and bring it on? 
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chicmac
Nationalist
Joined: 18 Mar 2008
Posts: 153
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| Posted: Fri May 09, 2008 5:01 pm Post subject: |
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| Aventinian wrote: | | chicmac wrote: | | You are talking utter rubbish. Whenever a central seat of government has tried to use the 'territorial integrity' argument, in nearly every instance the UN have sided with rights of the sessessionists to self-determination. |
Cite one case in which the UN forced, or try to force, a country at peace to grant secession to an integral part. Go on.
| Quote: | | In our case, the UK has signed up to the ICCPR and in addition to that legal treaty which obliges them to accept the right of self-determination in general |
We do, however self determination does not remotely mean what you seem to think it does.
| Quote: | | have also specifically assured the UN that any independence referendum result held in Scotland would be respected. |
When? You are aware nobody actually has the authority to make this statement, yes? It would be dependent on the approval of Parliament.
| Quote: | | We have also had an assurance from virtually every Prime Minister in recent times, that independence was entirely a matter for the Scottish people to decide. |
That's their business, it doesn't change the legal position one iota.
| Quote: | | If Scotland votes yes in a referendum and the UK reneges on their assurance to the UN and their treaty obligations, then the UN will just go ahead and recognise it anyway. |
The UN does not recognise states. Are you suggesting that Scotland would bring about a unilateral declaration of independence?
| Quote: | | Away back to your fantasy world. |
Read a book, and stop pretending your fantasies of what the law should be are fact when even the poorest student of international law could tell you they are nonsense.
Although to be fair, I doubt you want to be corrected on your ridiculous factual inaccuracies: the rather hostile reception my measured statements of fact received is fair evidence of that. I don't imagine international law matters a jot to you; only rhetoric and emotive statements. |
OK I'm rewriting this (very)long post in notebook because yesterday when I went to send it I had been logged out of this forum and lost the lot. Grrrrrrrr!
Since it is possibly my longest ever post, I very nearly did not bother re-doing it.
Anyway, its cut and paste jobs in future.
O.K. First let me say that in the past 3 years or more I have had occasion to learn about a hundred times more about this subject than I ever would have liked. I have spent hours in the library and on line reading books, papers, reports, analysis, declarations and pronouncements, mainly from UN sources but also from independent researchers. In conjunction with others in the various groups I have been a member of with specific interest in this matter, we have consulted experts in the fields of referenda, international protocol and international and constitutional law, all of course, with specific regard to Scotland's Claim of Right.
Where to start?
In the beginning there was imperialism and the convenient 'territorial integrity'. This essentially gave a legality, if not moral authority, to territory within existing borders (even if it had been stolen).
Immediately after WWII the UN was formed and one of the Human Rights which was adopted into its Charter was the Right to Self-determination.
Around about 1960 some legality based on this Human Right first came into existence in the creation of an instrument whereby colonised countries could leave an Imperial host. This may well have been for reasons of a genuine concern (having defeated 'evil Empires'in WWII) that Empires were not a stable entity re World peace, although cynics might also observe that this also helped dismantle power blocs which may have hindered the USA's march to World hegemony (brief as it is turning out to be).
This process continued throughout the 60s but then other groups and people began to cite this right even though their integration was more than colonial (i.e. federal, annexation etc.) This was because, the Right to Self-determination was, due to the philosophical rigour required of a Human Right definition, necessarily couched in non-discriminatory terms. "All peoples have the right... etc"
Many Nation states where secession seemed likely, objected to this, raising the old 'territorial integrity' legal right, which is of course at loggerheads with the principle of self-determination.
Soon, via the mechanism of international treaties where countries signed up to a legal obligations to uphold the principle of self-determination, it was at legal loggerheads as well.
There have also been half-hearted or half-baked attempts to water down the meaning of self-determination (e.g. autonomy within a nation-state = self-determination). However, the oxymoronic stench of that approach keeps most folk away from that one.
The debate is rather, mainly on the issue of who qualifies for self-determination/secession.
At various times, and sometimes at the same time, we have had stipulations like 'must be a unit in a Federation' or 'must be able to demonstrate that the host nation has lost the right to territorial integrity through it's behaviour.)
Possibly one of the the craziest has been 'must have demonstrated a national armed wing.' which of course is amoral since it positively encourages violence.
Even into the 90's the, what's known as 'Choice' criterion, where a group can simply choose to have self-determination for no other specified reason than they want to, was rarely recognised.
Since then the restrictions on who qualifies have inexorably lessened, sometimes with quantum leaps like, the Barcelona Conference in 1998.
Ok I'm gong to start quoting some stuff now.
First from that UN Conference of international experts in Barcelona in 1998.
"Self-determination is Firmly Established in International Law
A thorough analysis of the evolution and present status of self determination leaves no doubt that it is today, and indeed has been for a long time, a core principle and fundamental right in international law."
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."
There was also consensus on the philosophically sound basis of the Principle of Self-determination AND on the fact that the right to territorial integrity does not enjoy the same accolade.
However the pragmatic foundation and sometimes expediency of the concept of territorial integrity are recognised, especially in the avoidance of conflict.
As mentioned above, there is less consensus on what kind of grouping qualifies for the right (or qualifies as a 'people' if you like).
Obviously, subdivision of groups ad infinitum doesn't make a lot of sense.
Currently the main thrust of the debate has moved on to groups claiming right by indegeneity, and debate centres round what does indigenous mean? etc. e.g. 'Aren't all residents in a sense indigenous?' It gets messy.
However the current state of debate does not impact on Scotland's claim of right, since we qualified way way back in the process and in many different ways.
Another quote from Barcelona, on the subject of means of attaining self-determination which reflects particularly on your oft quoted stance re the supremacy of Westminster.:-
"Means of Attainment of Self-determination
The exercise of self-determination requires, by its very nature, the expression of the will of the people. This can be conceived of in terms of one or more well defined acts or by ongoing processes of consultation, participation and inclusive decision making.
The holding of a referendum in order to establish the will of the people with respect to a change of status and other matters is a widely accepted act of self-determination. "
"Implementation of self-determination does not necessarily require a one time act. The will of the people can be effected within a democratic system by use of the existing institutions of the state. This assumes a truly democratic fully participatory system, not one that limits the concept of democracy to decision by the numerical majority. Where only votes count, a people or community which is numerically inferior, has no control over its destiny."
You requested where the quote about the UN being informed of UK compliance with the principle by recognising an independence referendum result in Scotland came from.
This came from a restricted document, so I will only say that it was produced by a United Nations working group in 2005 and the report/paper was presented by a high ranking head of an international human rights organisation with connections to Cambridge and the Lauterpacht Research Centre for International Law, amongst others. I will, however, repeat the quote within a slightly larger context, if that helps.
"iii. Implied constitutional self-determination. The constitutional tradition of some states may establish a less formal [i.e. not enshrined in a formal constitution or other specific agreement] entitlement to constitutional self-determination. For instance, the United Kingdom has made it clear that it would respect the result of a referendum on independence in Scotland."
BTW this working group also stated:
"While self-determination and autonomy are related concepts, it would be wrong to attribute to the latter all the layers of meaning of the former. In particular, autonomy or self-governance does not imply a nascent claim to independence;"
Which IMO pretty much sums up the 'dead horse' status of that particular oxymoronic stance (as mentioned earlier).
OK I just tried to access the forum to get an exact quote and discovered we have no internet connection.
Just as well I am writing this in notepad.
Anyway as best I can recall I had said that in nearly all recent disputes the UN had taken the side of the secessionists and ignored the territorial integrity argument which was invariably raised by the central government.
You responded challenging me to name one intervention where the UN had attempted to FORCE a PEACEFUL government into GRANTING secession to an INTEGRAL region. OK this is a paraphrase but I'm pretty sure the distorting weasel word in caps are pretty much correct.
First of all the UN would never use FORCE against a PEACEFUL government under any circumstances. However, they would and have intervened in non-violent ways on constitutional matters many times whether the government was peaceful or not. Up to organising and paying for, independence referenda.
Second, by insisting on the government of denial doing so peacefully, that, of course quite intentionally, greatly reduces the number of instances where there has been direct UN involvement, because, quite rightly the UN prioritises situations of conflict (although not exclusively, and the UN is always involved at some point, even if it is just the admission of membership to the General Assembly).
As Aleksandar Pavkovic and Peter Radan conclude in their book “Creating New States - Theory and Practice of Secession”, which is, in part, a comparative study of violent versus peaceful secessions, mainly in the Balkans, the presence or otherwise of conflict has no bearing on the particular merits or otherwise of the secession claim. In effect drawing a distinction based on the presence or otherwise, of conflict, is merely an obfuscation.
In the book, they also state that in their opinion the legal right to self-determination encompasses a legal right of secession.
Yes, you can find other opinion, especially in countries where threatened secession has a very high stock, like Spain or the UK, where you can find, even yet, denial of any legal status for secession whatsoever e.g. Crawford in Cambridge.
But, as I said, regardless of any legal wranglings, in the absence of any effective international court, what the UN does is currently the final arbitration on the matter.
In those more recent secessions, like the Balkans and many others, despite the territorial integrity argument being invariably raised, the UN has nearly always sided with the secessionists.
And has done so increasingly with time.
You cannot deny it.
Oh and yes international bodies like the UN can recognise new states. In fact, many hold that recognition by other states is simply not enough to claim statehood.
However, I know of no neutral who, once a prospective state has gained UN recognition and consequent membership of the UN, would still claim, it was not a state.
Indeed some states, now cognate their recognition of a new state with UN membership itself. (i.e. they no longer separately recognise the new state but assign recognition to the acceptance of their UN membership application).
Yes self-determination and territorial integrity conflict, yes there are disputes, but the bottom line is whether the secession is successful and the new state joins and is accepted by the international community.
Also I will not concede that succession can be GRANTED. As a sub set of the Right of Self-determination, it is not within the power of anyone to grant. It can be recognised, negotiated or facilitated, but granted - no.
As far as INTEGRAL goes, that can mean anything you want it to mean down to groupings that no-one would consider merited secession.
This has been a big post so a bullet summary of salient facts may be in order.
* The Human Right to self-determination as enshrined in the UN Charter is philosophically rigorous. It is therefore immutable and non-transferable regardless of any associated legal status. Initially it had no legal status.
* The right to 'territorial integrity' has no philosophical rigour or moral authority, it is an exercise in a pragmatism of a 'feed the bear' variety, but has had legal status from way back in the day.
* The two 'rights' conflict with each other.
* The Human right to self-determination was given legal status about 1960, but was restricted at first to decolonisation.
* The remit of the Human Right to Self-determination has grown inexorably over the ensuing decades from its inception.
* Attempts to water down the meaning of Self-determination have been unsuccessful.
* Debate, legal and academic, mainly centres on group qualification for self-determination.
* The UN by it's actions has demonstrated a preference for self-determination and a rejection of the conflicting territorial integrity argument in most instances.(Although as groupings claiming self-determination become smaller and otherwise less viable or clear-cut, this must change)
In particular, for Scotland
* The reservation of self-determination of Scotland to Westminster (as embodied in the Scotland Act) is illegal under international law, as it does not constitute or allow for self-determination.
* The UK government refusal, thus far, to provide a referendum (or alternative democratic mechanism) whereby Scots may transition to independence and threats to prevent or ignore any such referendum organised by others, is also illegal under international law.
* However the UK government has indicated to the UN that they would recognise a Scottish independence referendum result.
* They are pretending one set of circumstances to the Scottish people and another to the International community. |
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azzuri
'Our Scotland' Fossil
Joined: 12 Sep 2005
Posts: 3776
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| Posted: Fri May 09, 2008 6:59 pm Post subject: |
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Jeez, what a post!  
_________________
"Every single person on this planet is unique. Just like everyone else..." - Random Guy in Edinburgh Pub
Possibly the funniest site in the world, 'The Daily Mash' - http://www.thedailymash.co.uk/ |
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mal
No Longer a Wean
Joined: 15 Sep 2005
Posts: 94
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| Posted: Sat May 10, 2008 3:59 pm Post subject: |
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| Found it rather amusing that one of the Authors of the Scotland Act that pertains to Bill legislation procedure was written by..........yip,you`ve guessed |
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William_Cleland
This is Ma' Life!
Joined: 22 Apr 2007
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chicmac
Nationalist
Joined: 18 Mar 2008
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| Posted: Sun May 11, 2008 3:18 pm Post subject: |
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| azzuri wrote: | | Jeez, what a post! |
Yep, and this is still a 30,000 feet view.
For instance there have even been debates on whether seceding regions can themselves have regions which secede at the same time.
Mind you, and incidentally another instance of the shenanigans which go on, is the treatment of the word 'secession' itself. This has become as much of a politico-etymological football in international legality debate as 'nationalism' has in domestic Scottish politics.
To give an example, there was a report generated on secession and presented to the Canadian Government in 1997. Now as I'm sure everyone is aware, because of Quebec, Canada is just as sensitised to the issue of secession as Spain or the UK is.
So I think it will come as no surprise to most, that the report basically said exactly what the Canadian Government wanted to hear.
For instance, since 1945 till then, in addition to the re-emergence of imperial colonies, there had been 25 successful attempts to gain independence by territories or regions of some kind or other from a hitherto host state. However, only one in the report was classified as 'secession'.
For example, the new Baltic States were 'disqualified' from the epithet 'secession' because they had merely been under occupation by the Soviet Union since World War II so really they were only reclaiming self-government. Obviously, this is a moot point depending entirely on point of view and even some Western democracies in times of socialist governments (remember them?) acknowledged Soviet territorial rights there over the years.
Another example is the Ukraine, 'disqualified' because Moscow agreed. Well yes it did agree - eventually - but after the fact of an independence referendum held by Ukraine which they initially declared illegal.
And so on down the list.
On the other hand, a list of 19 instances where attempts of one kind or another to gain independence had failed, were simply accepted as attempted secessions with no such similar qualification exercise.
In many of these cases, the regions wanting independence sadly have virtually no chance of getting it in the foreseeable future as they are attached to much larger World powers. e.g. Tibet. In other instances, the regions cited were effectively in chaotic theatres of civil war.
Finally there was a list of instances where secession attempts were pending. This included Scotland (even though technically Scotland may well still legally be designated a dissolution rather than a secession).
So, it seems to me anyway, that the 'message' was:-
1) There have been virtually no successful secessions.
2) There have been lots of failed secessions.
3) Therefore anyone who wants to secede is wasting their time.
Well, IMO, this is just using semantics to political end.
The facts of the matter are that 25, non ex-colonial, new states successfully came into being (UN membership etc.) from having formerly been a region or territory of another political entity.
In nearly all cases this was opposed by the central government and 'territorial integrity' banners were invariably waved around.
However they are all now member states of the UN and in many instances the UN interjected and facilitated the move to statehood and recognition even up to the point of organising and paying for an independence referendum.
In fact, since '97 several of the 'failed' list have since gone on to successfully gain independence, plus at least one new one which was not even on the list (East Timor). I suspect, however, an updated report might find these no longer qualify as secessions either.
Such are the political mind games which go on.
However, we have to be clear on the issue of what we mean by 'the UN', there is the body of the UN with working committees and groups working to create a philosophically sound corpus of principles and laws, and there is the General Assembly and Security Council which consists of states with a vote or veto.
The disconnect between the executive and legislative functions is far greater than you would normally find in domestic politics.
There are hard political realities. For example although Chechnya fulfils all the requirements for pursuing self-determination, the political reality is that the Russian Federation has such numerical and military superiority here that it is simply not going to happen. And such is the military might of Russia that there is nothing which the UN can do.
That does not make the situation morally right or legally right, however it is disgraceful that individual nations like the USA and the UK, can hold up the old territorial integrity law and use it as a face saving exercise in situations like that, rather than admit the truth which is that they are simply unable to do anything about it.
Similar story for Tibet.
However the existence of these aberrations does not make them right, they are wrong. And in time, the international community, through the UN will bring slow change where it cannot act immediately.
And, touch wood, so far the general direction of the UN has been positive. The quality debates leading to philosophically sound principles and laws dictate an inevitability of acceptance. Yes Might can be Right in the short term, but in the long term Right will become Might.
Of course, for the foreseeable future, the emergence of China represents the biggest challenge to continued progress here and it will be interesting to see how that unfolds. |
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Looks like somebody, let's for the sake of argument call him Gordon, has forcefully explained that little irony to her now though:-
