Chapter 4 Audio podcast

Nicola Sturgeon is the First Minister of Scotland. And in that capacity, she has, for years now, been pushing for another Scottish referendum on Scotland and its potential independence fromthe United Kingdom. Now the Scots have already had a referendum. In 2014, a majority of the Scottish people decided that they would likely remain apart of the United Kingdom. But after the Brexit vote in 2016, a vote in which almost two thirds of Scottish voters wanted to remain in the EU, the pressure to have another referendum has only been mounting. Now, the question of Scotland is one of potential independence and statehood. Those Scots who want to be independent from the UK want to have their own sovereign Scottish state. Under international law,statehood comes with extensive rights and obligations. In fact, statehood is the uppermost form of what we call international legal personality. The state is the most important legal subject. And as those familiar with national law will know, those who are legal subjects in the legal system are those who have rights, obligations, and some form of competence or capacity. This episode in the International Law Podcast, episode four, is about legal personality. In this episode, I'll make three points about that topic, about legal personality, that I think is worth stressing.

Now, the first point I'll note is that legal personality, itself, is a relative concept. It is not a “one size fits all,” and not all international legal actors have the same rights and obligations. As I've already noted,the most important legal actor in the international legal system is the state. In fact, since the Peace of Westphalia, the international legal system has basically revolved around an increasing number of sovereign nation states. That is because that was the way the states decided, back then, to designthe international legal system. States have all the attributes of legal personality and they are the only actor in the international legal system that can actually create new law. All other actors in international law derive their own legal personality, the rights and the obligations they have, from the states.Essentially, that is because it is the states that have created these variousother entities or actors. It also means that other actors, for example an international organization, only has the legal personality, the legal rights and obligations, that states have decided they should have.No more, no less.

It is up to states to decide what legal personality individuals havein international law also.And states have decided to grant both individuals certain rights,and to grant them certain obligations. The rights are primarily found in human rights conventions, in the human rights law that we'll return to in a later episode of this podcast. The obligations that have been put on individuals are found in international criminal law, such as, in the statute for the International Criminal Court, the ICC. In principle, there is no limit to the amount of various actors and entities that states can give some form of personality ininternational law. It all depends on what the states want and the functions that these various entities and actorsshould have.

The second issue I'll raise in this episode of the podcast concerns the thorny topic of the rights ofself-determination. To be clear, as a point of departure, the right to self-determination stresses that all peoples have a right to freely determine their political status and to pursue their economic, social, and cultural development. As a principle ininternational law, the right to self-determination gained force with the decolonization process after the end of World War II. And the principle, these days, is now very well established. But the principle does not mean that all peoples have the right to statehood. The right to self-determination does not grant a people who reside in a particular part of an existing state the right to just secede from that state and simply to create its own entirely new state. In the vast majority of cases, the right simply entails that a people's right to pursue its social, economic, and cultural rights must be fulfilled within the existing state.

In short, there is an internal and an external dimension to the right to self-determination.And the internal dimension is what I've just hinted at. And that is, that our people must pursue its rights within the framework of an existing state, the mother state. It must pursue those rights without breaking up the territorial integrity of that state. To the contrary, external self-determination concerns the right to actually secede and to create an entirely new state, a state that breaks away from the mother state. But an external right of self-determination is very rare. And I will submit that it is not applied to the case of Scotland, just as it does not arise in relation to Catalonia in Spain.In essence, therefore, both those entities have an internal right of self-determination, but that must be exercised within the United Kingdom with regards to Scotland, and within Spain with regard to Catalonia.In my view, the external rights of self-determination is only relevant for people who can be reasonably saidto be living under colonial or imperial rule, or other similar forms of external subjugation or domination. So, territories that remain colonies in some form can secedeand create their own state. An example of this is Greenland, that still remains part of the Kingdom of Denmark.But Greenland can secedeif it wants to. It has, however, so far decided to remain a part of the Kingdom of Denmark. Now, there may be some very few cases where our people are subjected to such a degree of oppression and human rights violations that it ought to be able to secede. And this is what is referred to as remedial secession. I will still submit those are very rare cases.And it is certainly not the case with regards to Scotland or Catalonia.If Scotland or Catalonia should secede,it requires the consent of London and Madrid.In December 2019, UK Prime Minister Boris Johnson stated that the 2014 referendum was a once-in-a-duration opportunity for the Scottish.

In my view, remedial secessionmust be very rare, because we cannot simply have an international system where it is free to different peoples to simply secedeand create their own states.In the international system,we need some form of stability.

Now, the third and the last point I want to make in this particular episode on statehood and legal personality concerns what we call conquest. By that I mean one state’s military subjugation of a territory that formally belongs to another state. Of course, throughout history, conquest was a very well-known, and entirely legal, way for states to simply enlarge their own territories. All this changed,however, after 1945, with the adoption of the United Nations Charter. The Charter,as I'll return to in a later episode, prohibits the use of force. And since 1945, the conquest, as a means of obtaining title to new territory, is simply no longer possible underinternational law.

So,state A cannot claim a legal right to territory that it conquers from state B. Underinternational law, state A is an occupying power,and it only has what we call defacto, and not de jure, possession of the territory that it occupies. Unfortunately, the prohibition against conquest remains relevant to this day. In 2014, Russia annexed the Crimean Peninsula in Ukraine. And that was an example of unlawful conquest. The Crimean Peninsula belonged and still belongs to the Ukraine.In practice,therefore, under international law, there can only be one response to the Russian annexation, and that is to condemn it, and to reiterate thatCrimeaunder international law, if not in actual practice, must still be considered a part of Ukraine. Therefore, one should not be surprised that sanctions have been imposed on Russia for its acts and its occupation of Crimea.

The prohibition against conquest also remains relevant in the Middle East and in the continuing conflict between Israel and Palestine. As many listeners of this podcast will know, since 1967 Israel has been an occupying power in certain parts of Palestine. Under international law, unless Palestine somehow, for example in a peace treaty, were to decide to grant those territories that Israel controls and grant them to Israel, the areas legally remain Palestinian. Under international law, Israel cannot obtain title over those parts of Palestine that it actually occupies. As things remain, therefore, any Israeli annexation of parts of the areas in question are illegal under international law, and it simply cannot be otherwise.