How to Handle Secession

In 1320, in the Declaration of Arbroath, Scotland's nobles firmly rejected rule by their southern neighbors: "For as long as but a hundred of us remain alive, never will we on any conditions be brought under English rule." That "hundred" was rhetorical, since the declaration has only about half that many signatures, but it worked: Scotland remained independent, for a while.

Last Thursday, considerably more than 100 Scots - millions, actually - expressed themselves on an equally momentous question, if in a more mundane fashion: "Should Scotland be an independent country? Yes/No." That was the tamer wording of the referendum in which the people of Scotland decided whether to break their bond with the United Kingdom, or not. Today's Scots did not need to gamble their lives, as the authors at Arbroath did, since today's Englishmen agreed to the entire exercise.

Had Scots voted yes, London would have been obliged to negotiate an orderly transfer of sovereignty to an independent Scottish state. The contest was close, but in the end 55 percent of Scots chose to stay. The consequences of secession would have been complex, bewilderingly so: Could Scotland have stayed in the European Union? Kept the pound? The monarchy? But equally dramatic are the consequences of Scotland's not seceding - the effects in global law and politics of the very fact that the Scottish referendum happened. Happened and failed: Because that, for a world full of peoples yearning to be free, is still a success - and for those who fear such yearnings, a salutary lesson.

We reflexively fear secession because we believe it incites nationalist demons, destabilizing nations and drowning them in bloody factionalism. That's what's driving resistance to 2014's next secession challenge - in Spain, where the region of Catalonia is pushing ahead with plans to hold its own referendum on Nov. 9. But as the Scottish case shows, our fears aren't necessarily right - and the key variable is not a minority's desire for independence, but the majority's reaction. Indeed, it was not some Scots' attempt to forge a new state, but Britain's acquiescence that most marked this case as different from that of Spain and most of the world. The United Kingdom is the rare state that has embraced the possibility of its own division: In an act of enlightened self-interest, it chose to make the case for itself not by coercion, but by persuasion.

Britain's acquiescence made Scottish secession possible - and makes the case an outlier. In most countries, secession isn't allowed - in many, it is treason, and the response, repression. On Tuesday, China convicted a prominent Uighur professor, Ilham Tohti, of advocating separatism in the western region of Xinjiang and sentenced him to life in prison. Independence for Kosovo and South Sudan succeeded only after years of persecution and extreme violence by their parent states; Biafra - devastating war, then failure - is more typical. The killing in Iraq and Ukraine should make anyone envy the prospect of living in a country prepared to take itself apart peaceably.

Nobody in Spain is contemplating violence like that, but in other respects Madrid's resistance to secession follows the pattern. The contrast with Britain could not be greater: Spain's government has rejected Catalonia's referendum, preparing to bring a case before the Spanish Constitutional Court to block the vote - it's clear a regional referendum violates the Spanish Constitution - and even threatening to suspend the Catalonian regional government's authority. But that dismissive attitude has only inflamed Catalan sentiment.

There is little evidence that Spain or other states are inclined to follow Britain's generous and confident stance, and none that they feel obliged to. Even the United Kingdom didn't believe international law required it to recognize Scottish independence: Parliament allowed a vote because it felt obligated by its own traditions. Scottish secession has been an insular affair.
But even if it is not a precedent, the British approach is instructive of the attitude Spain and other states would need if an internationalized right of secession were ever to become a reality. The world may not have embraced the Scottish model, but a model it could be. Because offering to dismantle yourself can be good for your nation's health.

Having allowed Scots to vote, Britain's government then passionately pressed the case for union - the benefits of staying and the costs of leaving - and promised more devolution if Scots would stay. And it worked: Polls suggest that for many voters, the decision came down to pounds and practicalities - shares of North Sea oil revenues, tuition fees - risk aversion, not Romantic nationalism.
And not just for those who voted "no thanks": The Scottish government's own pre-referendum white paper had reassuringly promised that, after independence, "the people of Scotland will still have access to all current [BBC] programming, including 'EastEnders,' 'Doctor Who and 'Strictly Come Dancing'. ..."

Not exactly the Declaration of Arbroath - which went on to proclaim that, "It is not for glory, nor riches, nor honours that we are fighting, but for freedom alone, which no honest man gives up but with life itself" - but a good indication of how real people, with real hopes and real concerns, make choices, given the chance.

That's the lesson of the Scottish referendum for Catalans - and Spaniards - this November. It's a lesson for people everywhere wishing to have a state of their own, and for people who fear that wish: Allowing secession doesn't have to lead to an atavistic, primeval flight for the nationalist exits and a steeping of blood; it does let more human beings fashion their own future - to choose to stay, or to go, but to choose for themselves, not as minorities, but as a people. Even if that future is reruns of "Braveheart" on the BBC. Freedom indeed.

(Timothy William Waters, a professor at the Indiana University Maurer School of Law and associate director of its Center for Constitutional Democracy, is writing a book on secession.)

EDICIÓ PAPER 21/11/2020

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