Employing the Scottish Manifesto for Indy as an Internationally Legal Means to achieve independence – leading to International Recognition and Membership in the European Free Trade Association

Dr. Mark McNaught - Maître de conférences University of Rennes 2, France (Doctor of Political Science 2004 - University Bordeaux 4 School of Law) & Supported by Professor Allan MacInnes University of Strathclyde (Glasgow)


Scotland currently finds itself in an impossible constitutional position. In 2014, the Scottish people voted by a margin of 55%-45% to remain in the United Kingdom (UK). A major factor in the result was the threat by the UK that an independent Scotland would not be able to remain in the European Union (EU) if it voted for independence. In the 2016 Brexit referendum, Scots voted by a margin of 62%-38% to remain in the EU, but the UK as a whole voted to leave. 


Recent opinion polls have shown consistent majority support for independence, yet the means to achieve it has become increasingly forlorn. The UK Government and the Scottish Government had reached an agreement in 2012 whereby a referendum would be held, and each side agreed to accept the result. According to this agreement, the 2014 referendum was conducted under a ‘Section 30’ order, whereby the Westminster government devolved temporary competence over the constitution to the Scottish people, normally a power reserved to the UK.


Since the 2014 result, the Scottish National Party (SNP) government has accumulated numerous mandates to hold an independence referendum. One such mandate was granted in the 2016 Holyrood elections, whereby the SNP manifesto pledged that a ‘change in material circumstances’, for example Scotland being taken out of the EU against their expressed democratic will, would constitute grounds for holding a second independence referendum. However, due to a variety of circumstances the SNP government has been unable to enact these mandates. 


The difficulty for the Scottish government in legislating for a second referendum remains that it operates under the Scotland Act, passed by the Westminster government, and the constitution is a reserved power. Irrespective of Scottish Sovereignty and Scots’ desire for self determination, holding a referendum under the powers the Scottish Government currently retains is entirely contingent on UK Prime Minister Boris Johnson granting a section 30 order, something he has repeatedly refused to do. In this constitutional context, any legislation over a referendum must necessarily pass through the UK civil service in Scotland and receive UK Royal Assent, and could be mired in the courts for years. Therefore, achieving Scottish independence through a second referendum, with or without a Section 30 order, would be inconclusive and fraught with prolonged legal peril. 


It is in this context that the Scottish Constitution Group was formed, to explore means under which international and Scots law, as well as unbroken Scottish historical sovereignty can be employed to achieve independence outside of the narrow constitutional confines of the Scotland Act. We have produced the following Manifesto for Indy (MfI), and are currently seeking its incorporation into the manifestos of all pro-independence political parties in the
upcoming Scottish Parliamentary elections on May 6 2021, as well as international recognition for Scotland and integration into multilateral governmental institutions. 


We will now examine the Manifesto for Indy, followed by two texts on international law and criteria for EFTA entry to evaluate the efficacy of MfI in achieving Scottish Independence within EFTA. The original sourced texts shall be in italics to distinguish from the commentary. 


Manifesto for Indy

 
The Indy Election

 On May 6th 2021 the people of Scotland will vote in a democratic Scottish Parliamentary election that has international recognition. The election will be informed by political party manifestos and by this Manifesto For Indy which will form a key part of the manifestos of the supporting parties. 


Historical Background 

The Nation of Scotland has a long history which can be traced back to 892AD. The sovereignty of the People was established by the declaration of Arbroath in 1320AD and again in the Claim of Right in 1689AD. The Claim of Right to self determination has been reaffirmed many times including on 4th July 2018, when the House of Commons officially endorsed the principles of the Claim of Right, agreeing that the people of Scotland are sovereign and that they have the right to determine the best form of government for Scotland's needs. It is therefore beyond doubt that Scotland is a Sovereign Nation and that the people of Scotland are a Sovereign People, and that they and they alone can determine the form of governance they so choose. 


The Manifesto For Indy Statement 


The Scottish People assert that the Scottish Parliament is the only parliament that is empowered to represent the sovereign rights of the Scottish People. 


Following the election on the 6th of May 2021 of a majority of MSPs who have committed to the Manifesto For Indy Statement and/or political parties that have supported this statement then the Scottish Parliament is thereby established as the only parliament that represents the sovereign rights of the Scottish People.

 
This categorically states that Scotland has affirmed itself as an independent sovereign nation. 


Two Year Transition Period 


1. International recognition 

The Scottish Government will immediately seek recognition from other nations and international organisations. 


2. Membership of EFTA and re-entering the European Economic Area (EEA) 

The Scottish Government will immediately apply to join EFTA (European Free Trade Association), which currently comprises Norway, Iceland, Switzerland, and Liechtenstein. Expert advice informs us that Scotland would be rapidly accepted into EFTA. 

EFTA membership allows Scotland to join the EEA (European Economic Area). Being in the EEA permits Scottish producers to export into the EU Single Market without the need for customs tax or tariffs, in effect free movement of goods and services, thus reversing the damage inflicted on Scotland’s economy by Brexit.

The Scottish Government will agree protocols with the EU covering Scottish Agriculture and Fisheries. This will give Scottish producers access to the EU Single Market. 


3. Freedom of Movement 

Membership of the EEA will reinstate reciprocal rights of EEA citizens and Scottish citizens to freedom of movement and other rights.


4. Higher Education – Erasmus Scheme 

Membership of the EEA will enable full reinstatement of the full benefits of the Erasmus Scheme for Scottish students to study in the EU and EU students to study in Scotland. 


5. EU/EEA Scotland Trade Links 

Scottish Trade with the EEA requires direct transport links with the EU Single Market. The Scottish Government will support the establishment of direct sea ferry links between Scottish ports and EU and EFTA markets. (Ireland has successfully established direct ferry routes to the EU following the UK Brexit) 


6. State Pensions 

The Scottish Government will introduce measures to increase the Scottish State Pension to the level of the EU average pension within a reasonable period of time. (The UK currently has the lowest State Pension in Europe) 


7. Free Movement between Scotland and England

The Scottish Government will support free movement of people across the border between Scotland and England during the Transition Period. 


8. Building the Infrastructure of Government 

The Scottish Government will build all necessary Scottish state infrastructures, including defense, taxation and welfare, international relations, currency and competent economic management.

 
9. National Assembly 

The Scottish Government will establish a national assembly comprising all the talents from the MSPs and MPs (MPs recalled from the House of Commons) and representatives of all facets of Scottish civic society, business, industry and the law to manage and implement the changes required during transition. 


10. The Scottish Constitution 

The Scottish Constitutional Convention will create a written constitution based on current international best practice and work already carried out. The Scottish Government will adopt the Scottish Constitution.

 
Compatibility of Manifesto for Indy with International Law 


We will now examine two documents on the International law of self-determination, and evaluate the degree to which employing the Manifesto for Indy as a means to express self-determination is consistent with them.


I. Text - International Law and Self-Determination 


Drawing on numerous legal sources, the following is a distillation of international law concerning the right to self determination compiled by the Diakonia International Humanitarian Law Centre (diakonia.se). 


The right of all peoples to self-determination is one of the core principles of international law and, by virtue of its erga omnes status [applicable to all], it is the responsibility of all states to ensure that this right is realised. The obstruction or violation of this principle, particularly through the use of force, constitutes a very serious violation of international law. 


UN Charter definition 


In the opening chapter of the UN Charter, respect for the right to self-determination of peoples is presented as one of the purposes of the United Nations. The right to self-determination of all peoples was confirmed by the United Nations General Assembly (GA) in the Declaration of Friendly Relations, which was unanimously adopted in 1970 and is considered an authoritative indication of customary international law. Article 1, common to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), reaffirms the right of all peoples to self-determination, and lays upon state parties the obligation to promote and to respect it. 


The right to self-determination was first recognised in the context of decolonisation. However, numerous human rights instruments, including conventional law, as well as several GA Resolutions and state practice, have extended its application beyond the colonial context, for example to South Africans under the apartheid regime. Some scholars also affirmed its application to analogous cases, such as peoples under belligerent occupation. 


Criteria for the right to self-determination 


A people can be said to have realised its right to self-determination when they have either (1) established a sovereign and independent state; (2) freely associated with another state or (3) integrated with another state after freely having expressed their will to do so. The definition of realisation of self-determination was confirmed in the Declaration of Friendly Relations. 


The principle of self-determination outlines not just the duty of states to respect and promote the right, but also the obligation to refrain from any forcible action which deprives peoples of the enjoyment of such a right. In particular, the use of force to prevent a people from exercising their right of self-determination is regarded as illegal and has been consistently condemned by the international community. The obligations flowing from the principle of self-determination have been recognised as erga omnes, namely existing towards the international community as a whole. The International Court of Justice (ICJ) has recently reiterated the erga omnes status of the general principle of self-determination in its Advisory Opinion on the Wall. Additionally, scholars and commentators have indicated that the principle has acquired the status of jus cogens – a peremptory norm of international law.


Commentary 


If the pro-independence parties collectively engage to enact the Manifesto for Indy, and if in the May election they constitute a majority in the Scottish Parliament, the Scottish people will have expressed their sovereign will that their parliament become the unique sovereign governing body over the Scottish people. Scotland will have become a sovereign, independent state in a peaceful, democratic manner. 


The Scottish government will then have the competence to enter into international treaties and multinational institutions. In the short term at least, the Scottish government will be able to immediately apply to join the European Free Trade Agreement (EFTAto fully restore full trading arrangements with Europe, and perhaps later democratically take the decision to join the European Union. In addition, Scotland as a sovereign state can negotiate protocols with the EU over agricultural and fishing policy, as well as seeking recognition from other states, which will ultimately enable it to gain membership in the United Nations as a sovereign, independent member state. Scotland will have the capacity to freely enter into any other international agreement or institution of its choosing. 


II. Text - From the United Kingdom submission to the 2010 Kosovo Case 


The following is excerpts from the written statement by the United Kingdom over the request for an advisory opinion of the International Court of Justice (ICJ) regarding the question “Is the unilateral declaration of independence by the provisional institutions of self-government of Kosovo in accordance with international law?” Ultimately, by a vote of 10 to 4, the ICJ advisory opinion of 22 July 2010 on Kosovo held that "the adoption of the declaration of independence of 17 February 2008 did not violate general international law because international law contains no prohibition on declarations of independence" 


5.5 Consistent with this general approach, international law has not treated the legality of the act of secession under the internal law of the predecessor State as determining the effect of that act on the international plane. In most cases of secession, of course, the predecessor State’s law will not have been complied with: that is true almost as a matter of definition. 


5.6 Nor is compliance with the law of the predecessor State a condition for the declaration of independence to be recognised by third States, if other conditions for recognition are fulfilled. The conditions do not include compliance with the internal legal requirements of the predecessor State. Otherwise the international legality of a secession would be predetermined by the very system of internal law called in question by the circumstances in which the secession is occurring. 


5.7 For the same reason, the constitutional authority of the seceding entity to proclaim independence within the predecessor State is not determinative as a matter of international law. In most if not all cases, provincial or regional authorities will lack the constitutional authority to secede. The act of secession is not thereby excluded. Moreover, representative institutions may legitimately act, and seek to reflect the views of their constituents, beyond the scope of already conferred power.


Commentary 


Therefore, according to the UK’s own submission to the Kosovo case, UK law cannot determine the legality of Scottish secession under international law. Whether the UK government grants a Section 30 order or not is irrelevant. It is up to individual states and the wider international community to determine whether the Manifesto for Indy is a peaceful, democratic means of self-determination, and whether or not to recognise Scotland as an independent state. This submission also holds the view that Scotland can act outside the Scotland Act to achieve self-determination and independence


Because self-determination is applicable to all peoples, it would be illegal under international law for the United Kingdom government to prevent this democratic expression of self-determination. It will not be able to prevent other states from recognising Scotland and establishing bilateral and multilateral relations. Nor will it be able to prevent Scotland from building the state in the form it chooses. As a successor state, Scotland will be under no legal obligation to assume any of the UK debt.

 
III. Rapid Accession to the European Free Trade Association (EFTA) and Rejoining the European Economic Area (EEA) 


The following is the response we received from an official at the Secretary-General's Office of the European Free Trade Association (EFTA) when inquiring about Scotland’s membership in EFTA following a successful plebiscite election in the May 2021 Holyrood elections. 


The EFTA Convention (Art. 56) says that “Any State may accede to this Convention, provided that the Council decides to approve its accession, ….”. The Convention does not include any enlargement policies nor any benchmarks for a hypothetical membership negotiations prior to independence. 
The EFTA Convention does not define “statehood” in this context, but in order to accede to the Convention, an entity must have the legal competence to enter into a binding international agreement and to undertake the obligations that come with a membership in the organisation. In the case of EFTA, these obligations include free trade among the Member States and also free movement of persons between the Member States, and a Member State must have the competence to regulate and legislate in all the areas covered by the Convention. Further legal competences include that a new Member State “…shall apply to become a party to the free trade agreements between the Member States on the one hand and third states, unions of states or international organisations on the other.” (Art. 56.3) 
In addition, here you find some FAQs on EFTA and EFTA Membership: https://www.efta.int/About-EFTA/Frequently-asked-questions-EFTA-EEA-EFTA-membership-and-Brexit-328676 


A subsequent conversation with this official left no doubt that Scotland would be welcomed into EFTA after a democratic affirmation of its sovereignty and independence, followed by a letter sent to the EFTA Council applying for membership. Such an affirmation would confirm that the Scottish government has the competence to negotiate and ratify international treaties, as well as to legally enforce the provisions of said treaties. After, the three EFTA members who take part in the European Economic Area (EEA); Norway, Lichtenstein, and Iceland (excluding Switzerland), would propose to the EEA council Scotland’s membership within it, for which this official foresaw no obstacle. 


Conclusion 


Adoption and implementation of the Manifesto for Indy is necessary because the UK Government has repeatedly refused to grant a Section 30 order permitting a referendum under the provisions of the Scotland Act, and has also indicated that they will take legal action to prevent a referendum. The Manifesto for Indy offers perhaps the only means of achieving Scotland’s independence for the foreseeable future, and would satisfy all the requirements of international law. 


When the two approaches are compared, there is little doubt that the Manifesto for Indy is a much more effective approach than expecting a Section 30 from the UK government. It is definitive, will be internationally recognized, and less subject to undue interference by the government of the predecessor state than a referendum would be. Scotland will be able to rapidly join EFTA, provided that the Scottish people assert their sovereignty thereby enabling the Scottish government to sign international treaties and abide by them. 


Therefore, incorporating the Manifesto for Indy into pro-independence party manifestos, followed by election of a pro-independence majority in the May Scottish Parliamentary elections is a thoroughly legitimate, internationally recognized means to achieve independence. Scots will simply have asserted their sovereignty and affirmed that the Scottish Parliament is the sole Parliament with sovereignty over the Scottish people and territory, thereby becoming independent from the UK. EFTA representatives have made it clear that the EFTA council will rapidly accept Scotland as a member, and will seek to get Scotland back into the EEA as soon as possible. This will enable Scotland to freely trade with the EU, beginning to reverse the severe economic damage already caused by Brexit, and begin to build the constitutional foundations of the Scottish State. Expecting increasing support for Scottish independence in the polls to result in the UK government granting a Section 30 order is simply unrealistic, and even if it was would be dictated by UK law. Therefore such a route will obviate Scottish independence for the foreseeable future.