II. Exercising the right to self-determination
II.2. Substantive content of the right to self-determination
II.2.1. The claim for greater autonomy for Scotland
The first issue that arises is whether Scotland is entitled to greater autonomy under international human rights law. The current powers of the Scottish Parliament are delegated by the Parliament of the United Kingdom and thus based on an act under national legislation, not by exercising the right to self-determination in international human rights law. Delegated powers and
autonomy based on the the right to self-determination are distinct and must not be confused, although they might have the same effect in practice. The former is an act under national discretion as an expression of the will of the population of the United Kingdom and can theoretically be revoked at any time if the will of the population changes, while the latter is an international human right
exercised on the basis of the inherent right of a «people».
The internal aspect of self-determination has not been directly adressed in many legal instruments, but was referred to in the ‘Declaration on Principles of International law’ 79 which, as stated above, is considered customary
international law 80. The declaration stated that the territorial integrity or political unity of sovereign and independent States possessed of a government
79 UNGA Res 2625 (n 37).
80 Cf. note 39.
«representing the whole people belonging to the territory without distinction as to race, creed or color» 81, could not be dismembered or impaired. The
reference to «representative government» demonstrates that the will of the people must be the basis upon which self-determination is exercised. The requirement of representative government has traditionally been interpreted as an obligation upon governments to represent the whole population without excluding anyone on the basis of the differences mentioned above. This ensures that other human rights, such as the right to effective participation 82, including the right to vote 83 and to be able to stand for election 84, and to
express your opinion 85, are upheld. Violation of these rights can thus amount to a violation of the right to internal self-determination.
During the last few decades, however, many groups within independent States has been granted autonomy with regard to certain issues such as health, education and environment 86. These powers have been granted by the independent State to the specific group under national legislation and is often restricted to a specific territory within the existing State borders. This is
considered an effective method of compromising with groups within a State who claim the right to secession 87, as it enables such groups to decide certain areas
81 UNGA Res 2625 (n 37) para124.
82 Cf. ICCPR art. 25.
83 Cf. ICCPR art. 25(b).
84 Cf. ICCPR art. 25(a).
85 Cf. ICCPR art. 19.
86 For a review of circumstances where this has ocurred, see, ie.; Marc Weller, ‘Settling Self-Determination Conflicts: Recent Developments’ (2009) 20 European Journal of International Law 111, 117.
87 Ibid, 115.
of society by themselves while preserving the territorial integrity of the State. It also ensures that the group is adequately represented, as their interests may simply be outnumbered by the numerical domination of another group in a national Parliament, such as the Scots would be compared to the English in the British Parliament 88. Autonomy can thus ensure a level playing field so that the interests of the group is adequately taken into account 89. This has led to the question of whether autonomy, as a means of exercising self-determination, is part of international human rights law.
The issue has mainly been discussed by academics since the 1990s, when previous Soviet areas were granted autonomy, and there are therefore not many international sources on the issue. This is also due to the focus of
academics on who the «people» is and whether there is a right to external self-determination.
It might seem natural that autonomy, like secession, is recognized under
international human rights law, as it as other human rights is a universal right of international concern and should thus include all aspects of self-determination.
It is also a less severe means of exercising self-determination than independence as it prevents disruption of the territorial integrity 90.
88 Around 5 million people live in Scotland, compared to 51 million in England.
89 Jane Wright, ‘Minority Groups, Autonomy, and Self-Determination’ (1999) 19 Oxford Journal of Legal Studies 605, 618, where the term is used in relation to minorities.
90 Ibid para 625.
The only instrument where the right to autonomy has been directly expressed, is the ‘Declaration on Indigenous Peoples’ 91, which states that indigenous peoples have the right to self-determination 92 in terms of «autonomy or self-government in matters relating to their internal and local affairs» 93. This is however a declaration, and is not legally binding upon States. It is also specifically restricted to indigenous peoples, who are in a special position as they in many occassions were the first settlers of the territory and often has a close relation to the lands. State practice also reveals that autonomy is exercised by delegation of the independent State, not as a means to ensure exercise of the right to self-determination 94.
Musgrave argues that State practice demonstrates that much of the
international community has not recognized autonomy as an acceptable form of self-determination 95. He further argues that the reluctance of States to grant autonomy to sections of their populations is based on a fear of «Balkanization», and that due to the «absence of express language and reluctance among States», autonomy is not a part of international human rights law, but rather an internal arrangement under the discretion of the State 96. Kirgis, however, argues that claims for autonomy can be recognized under international human rights law if the government does not represent the whole people belonging to
91 United Nations Declaration on the Rights of Indigenous People, UNGA Res 61/295 (13 September 2007).
92 Ibid art.3.
93 Ibid art. 4.
94 Weller (n 86) 117 and Thomas D. Musgrave, Self-Determination and National Minorities.
(Oxford University Press 1997) 208.
95 Musgrave (n 94).
96 Ibid.
the territory. He claims that the degree of representative government is tied to the destabilization of the region and that this will be reflected so that «if a government is at the high end of the scale of democracy, the only self-determination claims that will be given international credence are those with minimal destabilizing effect. If a government is extremely unrepresentative, much more destabilizing self-determination claims may well be recognized» 97. There is however no acknowledgement of such an argument in international human rights law.
The lack of recognition in State practice and international human rights instruments, indicates that international human rights law does not recognize autonomy as a means of ensuring the right to self-determination. The claim for autonomy for Scotland is thus not recognized under international human rights law.