International Legal Opinion Indicts Supreme Court on Scottish Self-Determination

ALBA Westminster Leader Neale Hanvey MP has today (Tuesday) published Legal Opinion, from Professor Robert McCorquodale, on “matters relating to international legal issues concerning the right to self-determination for the people of Scotland”.

The Opinion published today on international law is the first of two major legal documents to inform the Scottish independence debate. The second, to be published in the coming weeks, is from a leading Scottish Advocate and will deal with domestic law and how the Supreme Court ignored the Scottish constitutional tradition of popular sovereignty.

Professor McCorquodale is a highly distinguished academic and legal practitioner specialising in international law. He has been an advocate before the International Court of Justice (ICJ) and is an expert member of United Nations working groups.

The opinion contends that “the Supreme Court was mistaken in law in its approach to the right to self-determination of the people of Scotland in the Scottish Referendum reference case” (Paragraph 133) and “sets out the main parameters of the right to self-determination in international law” (Paragraph 131) and how these apply to the people of Scotland.

Professor McCorquodale concludes that:

“In my view, the Supreme Court was mistaken in law in relying on the decision in Reference re Secession of Québec as it did. It was mistaken in its lack of appreciation of the context of the Canadian case, where a referendum had already occurred and was not found to be unlawful, the relevant constitutional principles requiring a government to negotiate with a part of its State that was seeking to exercise its right to self-determination by secession, and whether the case was applicable at all to the structure of the UK. Each of these factors were of relevance to the Scottish Devolution Reference case.” (Paragraph 61).

Professor McCorquodale goes on to highlight relevant developments which have taken place since the Canadian Supreme Court judgement.

He goes on to deliver this damning verdict:

“The Supreme Court relied on a statement by the UK government which was not supported by the ICJ in the Kosovo Opinion. The Supreme Court also failed to take into account the reasoning or conclusions of that Opinion. As a consequence, it can be argued that the Supreme Court was mistaken in law in not correctly applying the relevant international law. Further, relying solely on a submission by the UK government to the ICJ might be considered unreliable as evidence in relation to the right to self-determination in international law.” (Paragraph 73). He goes on to state: “Not only was that particular submission not adopted by the ICJ but the UK itself recognised Kosovo as an independent State.” (Paragraph 74).

In addition Professor McCorquodale cites the example of the Chagos Islands. In its Chagos Opinion, the ICJ rejected almost all the UK government’s submissions. That case arose from a request by the UN General Assembly to the ICJ for an Advisory Opinion in relation to the actions by the UK government in its continued colonial administration of the Chagos Islands and its process of decolonisation of Mauritius. He states:

“The relevant issue here is that the submissions of the UK government to the ICJ cannot be considered automatically as being representative of what is international law in regard to the right to self-determination. (Paragraph 81)

Therefore, in my view, the Supreme Court in the Scottish Referendum Reference case was mistaken to rely on a UK government submission alone without further investigation of the position in international law." (Paragraph 82)

Professor McCorquodale also goes on to confirm that “the people of Scotland are distinct within the UK and have a right to self-determination.” (Paragraph 30) and “the right to self-determination applies to the people of Scotland” (Paragraph 6). He states: “As the people of Scotland are a people for the purposes of the right to self-determination, they can exercise it. The choice of the means to exercise is for the people to decide and not for the State.” (Paragraph 32). He explains that the UK as a signatory to multilateral international human rights treaties has “expressly accepted that the right to self-determination is a human right” (Paragraph 12) and “not just as an international legal principle - which is binding under international law on all States.” (Paragraph 14). He also asserts that that “secession is not unlawful under international law” (Paragraph 6).

Professor McCorquodale sets out the that “There are two possible international legal routes available” (Paragraph 135):

“Seeking an Advisory Opinion from the ICJ. This requires a majority vote by States in the UN General Assembly to refer a legal question to the ICJ, and for the ICJ to determine the matter. It also requires a State to take this forward on behalf of the people of Scotland, which may prove difficult (Paragraph 135 a).

Make a unilateral declaration of independence. This requires a clear majority of people representing Scotland to indicate their approval but it should not be done by the Scottish Parliament, as the latter is within UK domestic law. This could be done, for example, through a convention of elected and diverse representatives from across Scotland with a clear majority in favour. This approach relies for its effectiveness on the recognition by States of the Statehood of Scotland (Paragraph 135 b).

There are no easy routes to find a remedy in international law for the people of Scotland to exercise their right to self-determination by secession and so seek their independence from the UK. However, as seen in the history of other peoples with the right to self-determination seeking to become states, while this is challenging, it is by no means impossible.” (Paragraph 136).

Speaking at a News Conference in the House of Commons, convened by Tasmina Ahmed-Sheikh, ALBA Party Chair, Neale Hanvey MP, ALBA Westminster Leader said:

“I have never been confused about the reason why I stood for and was elected to Parliament. Along with Kenny MacAskill MP I carry with me the hope, aspiration and ambition of so many who wish to see Scotland’s rightful return as an independent nation. On the 23rd November 2022 the UK Supreme Court ruled that the Scottish Parliament does not have the power to legislate for a referendum on Scottish independence.

One week later, on St. Andrews Day I led a debate in Westminster Hall which considered UK Government policy on a further independence referendum for Scotland.

In my contribution I set out arguments that set my course to this meeting today, and no doubt beyond.

The UK Supreme Court contend that a Scottish Government may not exercise a democratic mandate handed to them by the People of Scotland to hold an independence referendum. Whilst within the limited constraints of devolved legislative competency that may be technically accurate, the judgement went further than technical application of domestic law on devolution.

And this is something that simply cannot be tolerated. There was a suggestion in that judgement that, somehow, Scotland as a nation does not possess the political or legal capacity to exercise its right to self-determination. In suggesting that, the London Supreme Court overturned what has been the accepted legal, historic and political position that the UK is a voluntary Union.

On 1st February this year (2023) I brought forward the Scotland (Self-Determination) Bill which passed first reading unopposed. The Bill seeks to remedy the Scottish conundrum whereby since 2011 the People of Scotland have consistently provided the governments and parliamentarians we have elected with a mandate for an Independence referendum yet the UK Government are refusing to honour the democratic process, through the 2012 Edinburgh Agreement, established in good faith.

Following the Good Friday Agreement, a similar mechanism was established in Section 1 of the Northern Ireland Act 1998 which brought into law a device whereby the peoples of Northern Ireland could democratically demonstrate their preferred constitutional future.

The right of a people to self-determination is a cardinal principle of modern international law as set out in the UN Charter. As this legal opinion states; peoples, based on respect for the principle of equal rights and fair equality of opportunity, have the right to freely choose their sovereignty and international political status with no interference.

As internationally recognised peoples living within a defined territory, a representative government, and the facility to informally engage with the international community, the people of Scotland can readily meet the accepted criteria of statehood laid down in the Montevideo Convention (1933).

The legal opinion we are publishing today reinforces and supports equitable access to the right to self-determination of all peoples within the current Union. They also offer robust challenge to the legally flawed judgement of the UK Supreme Court."

Alex Salmond, ALBA Party Leader said:

“The McCorquodale opinion is of huge importance. It corrects the UK Supreme Court arrogance in dismissing arguments around Scotland’s undoubted right of self determination and their casual and misguided definition of when nations have the opportunity to democratically assert such rights.

If Scotland succeeds in demonstrating the democratic will for independence, then international routes are available to pursue our case as McCorquodale has outlined. This is not an easy matter but it is a well trodden and successful path to recognition of nationhood.

First we have to deal with matters domestically. Next year’s election must be used as an opportunity to assert Scotland’s case for a popular mandate to negotiate independence, with one Scotland United candidate in each constituency mobilising the 50 per cent support for independence.

If this is done, then it will be British unionism, not Scottish nationalism, on the defensive. Scottish independence can emerge from the election as the big winner with an excellent opportunity to bend the UK Government to accept the democratic will of the Scottish people.

As the Supreme Court itself noted, the ballot box has a pre-eminence and impact. That is why the independence movement should use next year’s election as the opportunity to advance Scotland’s national cause to a successful conclusion”

ALBA Party Depute Leader, Kenny MacAskill MP welcomed the opinion of Prof McCorquodale:

“The opinion offers an avenue by which Scotland can exercise our right to self-determination via a convention of elected and diverse representatives from across Scotland. This reinforces the position that ALBA has consistently endorsed since our inception.

The former First Minister stated in January 2020 that she was going to call a convention; in light of this legal opinion, it is imperative that the new First Minister establishes a convention that encompasses more than one political party.”


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