Orkney, Shetland, uti possidetis and the #indyref

A mini-blog, adding coverage to an issue that perhaps does not merit the coverage it has obtained already (see this robust Wings Over Scotland blog for an articulation of that view).

The idea of home-rule for Shetland and/or Orkney has returned to the foreground of the Scottish independence debate. I am not sure whether the “plan” is for: 1) just Shetland to go its own way; 2) just Orkney to go its own way; 3) Shetland and Orkney both to go their own (separate) ways; or 4) for Shetland together with Orkney to go their combined ways, but no matter. Essentially, hiving-off all or part of the Northern Isles would involve meddling with the territorial unit that is Scotland.

This blog is focussed on a legal point only. Look elsewhere for praise of the divide and conquer strategy or critique of a unionist campaign that might be inherently anti-union. As to why the argument is being run, a first principles analysis of self-determination shows it would be a tad hypocritical to argue for self-determination for one unit but not sub-units of that unit, as previously acknowledged by a flustered SNP MP.

That being the case, the international concept of uti possidetis comes to the fore. In relation to the Balkans the Badinter commission was pretty clear that “whatever the circumstances, the right to self-determination must not involve changes to existing frontiers at the time of independence (uti possidetis juris) except where the states concerned agree otherwise.”

Or, as I have put it elsewhere, one self-determinative step at a time, please.

So, Scotland does not get to lasso Newcastle-upon-Tyne in the event of independence. Remiss border management means Berwick-upon-Tweed and Rathlin Island (both of which are important to Scotland’s story) are most likely outwith the existing frontiers of Scotland. Similarly, a fair referendum that complies with international norms will not leave bits of Scotland up for grabs, nor should Scotland be expected to instantly rend itself asunder, in the event independence comes about. There may be an argument about internally re-zoned maritime boundaries or a query or two about Rockall, but leave that for another day. As to the instant point of the Northern Isles, maybe that too should be left for another day, but maybe not. It will not influence how I vote at the ballot box on referendum day, but then it might influence others. Which I suppose is why we are discussing it.

Again.

Be advised I intend to play this blog as a shield if, or rather when, the issue is discussed again.

Finally, I do hope this blog does not annoy any of my friends from the Northern Isles. At no point in this blog have I sought to impute any views onto you, nor would I. As I say above, one self-determinative step at a time, and if a second self-determinative step comes after the first, who am I to try and stop it?

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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