Arc of Prosperity

Scottish Independence within the EU – with a Scandinavian Slant


Treaties are for the little guys – where does that leave Scotland?

bullies photoI have been struggling a bit with the latest Brexiteer shenanigans – surely they cannot honestly believe that the EU will let them get away with breaking the Withdrawal Agreement, especially the bits protecting the Good Friday Agreement.

Some people have been suggesting it’s just a way to get the EU to be more flexible in the trade agreement negotiations, but it doesn’t really ring true – it’s too risky and tone-deaf.

The best answer so far was provided by Garvan Walshe in an excellent article in Foreign Policy:

Yet this is more than just the chronic unreliability of a man who won’t even disclose the number of children he has. It’s a much deeper problem, rooted in the British understanding of sovereignty. Britain likes to think its Parliament is all-powerful and sovereign: That is indeed why it had such trouble with EU law, and its enforcement by European courts. Unlike smaller countries, Britain’s memory of its pre-EU existence is as a great power — in a time when there were few constraints on its international action.
As one acquaintance said to me on Twitter: “The UK is a sovereign nation and can do what it wants, there may be prices to pay,” which would be “deemed acceptable costs.”
This is a transactional view of international relations, where there are no unbreakable rules, and unreliability is merely a cost of doing business that needs to be balanced against the benefits it brings. It suited the British Empire, which was powerful enough to absorb that cost, and this was generally how all European powers thought until 1939. Treaties were for the little guys; the big boys relied on the balance of power.
The concept of a treaty directly contradicts the Brexiteers’ understanding of sovereignty. If a treaty is designed to control the behavior of its signatories, it cannot be unilaterally overturned by any one of them. Like any contract, it needs to be amended by mutual agreement. What’s the point, after all, of signing a deal with a country that feels itself free to renege on it?
Brexit is ostensibly a mission to free Britain of all international restraints, of which the EU is only the most obvious. The most clear-eyed Brexiteers, like my Twitter interlocutor, accept the high transaction costs that come with this freedom. Johnson dismisses them, preferring to “have his cake and eat it,” so entered into the agreement with what Jesuit theologians call a “mental reservation” — a necessary lie.

So basically they’re taking a boarding-school approach to international politics, where the bigger kids bully the smaller ones. I therefore agree with New German Jon Worth who argues that the “breakdown in trust is so bad that the EU itself looks ridiculous by continuing to even seriously talk to such a bunch of gangsters. So the EU should walk away. Now. Until the UK can categorically prove it will respect commitments previously entered into in the Brexit process there should be no more negotiations.”

So although the language is staggeringly direct in the following quote from the EU Commission’s statement (you’d normally expect something rather more diplomatic), I’m not sure it’s enough:

Vice-President Maroš Šefčovič called on the UK government to withdraw these measures from the draft Bill in the shortest time possible and in any case by the end of the month. He stated that by putting forward this Bill, the UK has seriously damaged trust between the EU and the UK. It is now up to the UK government to re-establish that trust. He reminded the UK government that the Withdrawal Agreement contains a number of mechanisms and legal remedies to address violations of the legal obligations contained in the text – which the European Union will not be shy in using.

It’s a good start, however, and it doesn’t preclude the EU from escalating matters later.

I have a feeling we’ll soon start talking about Perfidious Albion again, described by Wikipedia like this:

a pejorative phrase used within the context of international relations diplomacy to refer to alleged acts of diplomatic sleights, duplicity, treachery and hence infidelity (with respect to perceived promises made to or alliances formed with other nation states) by monarchs or governments of the UK (or England prior to 1707) in their pursuit of self-interest.

Finally, we have to address the obvious question (given the nature of this blog): If the Tories are hell-bent on turning the UK into an international playground bully (like Putin’s Russia), ignoring any treaty that doesn’t suit them, where does that leave Scottish independence?

Surely this shows that even if Nicola Sturgeon manages to convince them to grant a Section 30 order, they won’t respect it afterwards if the result doesn’t suit them. If treaties are for the little guys, that must be doubly true for deals with a devolved administration that they don’t respect any more than a local council.

So what do we do? Do we hang on in the hope that Labour will gain power in 2024 or 2029, restoring sanity to the UK? There’s no guarantee they’ll grant a Section 30 order either, of course, but surely they’d respect it if they did. It does mean suffering the full consequences of the Tories’ No-Deal Brexit Britain dystopia (including their hollowing out of devolution) in the meantime, of course, but it’s perhaps the sensible thing to do for the feart kid in the playground.

Or do we accept that the Tories won’t agree to a Section 30 order, but trust that the international community surely by now will have realised what Scotland is up against and will look favourably on a less legal and less consensual path to independence? It takes more courage, though. Is Scotland ready for this?

2 thoughts on “Treaties are for the little guys – where does that leave Scotland?

  • Is Scotland ready for this ? Maybe the question is ‘Is Scotland’s leadership ready for this?

    Whatever analogy you use for the present ridiculously low 55% Yes position – slowly boiling a frog to death or the Swedish Syndrome – having a Scottish leadership that seem far too content with allowing events to be controlled by the UK is not anywhere near the driving force that is needed to get Scotland out of this mess before it becomes too late. If the UK maintains its illegal stance with the EU, I expect that at the end of September the EU will walk away in exasperation from trying to deal with the UK as a normal State and then deal with it accordingly. The US has also made their position crystal clear. Breaking Treaties and/or International Law clearly will have consequences, as it should.

    For several years now I have assumed that the only way for Scotland to separate from the UK is by using International law. A Section 30 has always seemed a lost cause since it would be denied even if won – ‘referendums are advisory and cannot be constitutionally binding on either the Government or Parliament’. At best a Section 30 looks like a Trojan Horse aimed at delaying any real push for independence before finally and after many wasted years, categorically denying a Yes vote its legitimacy.

    I could therefore see a Section 30 claim being spun out over years only to have the ‘wrong result’ denied if it ever happened, which would have been the intent all along. It can’t realistically be claimed that a Section 30 is the only legal or gold standard way to independence. Likewise utilising International law can’t be claimed to be ‘a less legal or consensual path to independence’. Given the UK’s unilateral views on the law and Treaties, it may in fact be the most legal and internationally recognised way to do so. The UK is being held accountable to International law by the EU. Why shouldn’t Scotland do likewise?

    With so many other huge problems to tackle – Covid, environmental changes, another seemingly inevitable financial crisis – allowing Brexit to be added to these for Scotland would be insane. It appears that the SNP have the people that are more than capable of providing the SNP with the driving force to gain independence, avoid becoming part of a pariah state and maintaining and building the international relationships that will be vital to help deal with the above issues as effectively as possible. To take just a couple of examples, with two prominent, extremely highly qualified and competent politicians in the two key areas of law and health respectively, why are these people not very publicly forming part of a core group of the SNP push for independence as I would guess most SNP members and supporters would want. Whether the SNP will get real about what the supporters of independence want is the $64 million question.

    England is getting what it voted for and support there is still strong for Brexit. Hanging about waiting for the Brexit disaster to unfold over the coming years and hoping that it somehow creates the conditions for Scottish independence, or hoping that England will in 4 or 9 years vote for a Labour Government and then hoping that a UK Labour Government would change it’s current position of accepting Brexit and apply to rejoin the EU at a future date is totally unrealistic.

    So for me, it’s now down to whether the SNP really do want to push for independence, and if so, using International law as the basis for being able to make that choice. UK based options, such as a Section 30, are now self evidently a dead end. At best an outright denial of the ability to have a Section 30, as the Keatings case might provide, may help strengthen the case for independence under International Law, but in itself a Section 30 process seems unlikely to move things forward in a definitive way.

    Meanwhile the realities of Brexit become clearer each day now.

  • I think at this stage, the legalist and gradualist bent members of the Independence movement must be thinking that faced with such rule breaking willingness from the UK government, must be tempted to offer up plan Bs. My favourite would be to stand on a manifesto commitment to instruct the next Scottish government to negotiate with the UK an independence settlement, then putting the settlement to a final referendum. If Boris et al refuse we can appeal to the International community for support. I fear that time is limited the Johnson government could abolish the whole devolutionary experiment if it so wishes and it thought it was beneficial to them. That would a very serious escalation. Currently I think the UK government has made a serious misjudgement by making a willingness to break International law. It cedes moral authority to the independence movement, and puts sympathy of the international community towards Scotland


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