For freedom alone: Secession after the Scottish referendum

Abstract

In September 2014, the people of Scotland voted on whether or not to become an independent state. The consequences of independence would have been complex –decisions about accession to the EU, currency union, defense. Seemingly less dramatic, yet no less important, are the consequences of Scotland not seceding — the effects in global law and politics of the very fact that the referendum happened, and that it failed. Many elements of the Scottish case find close parallels in claims for secession elsewhere in the world. Yet those claims more often meet less welcoming receptions. Indeed, it is not the attempt to secede, but the existing state's acquiescence that marks this case as different: The UK is the rare country that acknowledges the possibility of its own division. Great Britain's acquiescence both made Scottish secession possible and made it an outlier, whose precedential value must be closely interrogated. The key missing element is any evidence that the process was shaped by a sense of international legal obligation — indeed, the pathways of Scottish secession have been an insular affair, a function of particularly British law and politics, in which international law played little role. This article argues that the Scottish referendum provides little precedent for a changing legal norm — yet also offers a compelling model for how such a new norm ought to look. This article is about something that did not happen, and why it does not matter — but also why precisely that is so important.