Scottish Government ‘needs fullest consent for Indyref2 to succeed in EU’
The Scottish Government needs the “fullest consent from Westminster” for any independence referendum in order to “succeed as a state within the EU”, according to a leading constitutional expert. The prospect of another referendum being held next year, eight years after the previous vote was "quite reasonable in a democratic society”, said Professor Marc Weller of Cambridge University.
The senior NATO adviser said that the Scottish Government could use international law and the “principle of selfdetermination” in support of its demand.
The International Court of Justice recently affirmed this principle, although it is "fairly narrowly framed", he said.
However, Prof Weller suggested protracted negotiations may be necessary with compromise on both sides, as 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” for a new referendum. 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 practising barrister.
He has served as a senior legal adviser to the United Nations, and was a legal adviser 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 selfdetermination 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.
“International law recognises such a constitutional grant of authority whether made express in the constitution or implied in constitutional practice," he states. 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 selfdetermination 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.
“Holding a second referendum after some seven or, in actual fact perhaps more likely eight years, seems quite reasonable in a democratic society.”