Brexit: Some International Law Aspects
In a week that is likely to be dominated by the public law implications of Brexit — the UK Supreme Court will hand down its much-anticipated decision in the Article 50 litigation tomorrow — I thought it would be timely to draw your attention to some related international law issues. Brexit, and more particularly Scotexit, was the subject of a talk given by my former Montreal colleague Stéphane Beaulac (currently the Flaherty Visiting Professor at my alma mater, University College Cork), with Frédéric Bérard, last December in Cambridge: “Remedial Secession and the 1998 Quebec Secession Reference Case: Did the Supreme Court of Canada Get it Wrong?”
Here is the abstract:
To set out the table, the (not so) hypothetical scenario is as follows: Imagine that, following Brexit, be it soft or hard, Scotland decides to go ahead and hold a second referendum on independence; this time, however, let’s say that London does not go along and, indeed, decides to oppose secession. What then? Unlike the autumn of 2014, rules of international law could come into play and, short of other options based on people’s right to self-determination, Scotland would perhaps rely on the idea of remedial secession. Beside the ICJ opinion in the Kosovo case, another precedent often invoked to support this doctrine is the Supreme Court of Canada decision in the 1998 Quebec Secession Reference case. It identified three situations where self-determination translates into a right to secession, the third one being associated with remedial secession. After recalling the context and the main points made by the Court, both in terms of domestic law and international law, the presentation will revisit the basis for this doctrine. Specifically, the claim that the 1970 UN Resolution 2625 (XXV) – Declaration on Friendly Relations and Co-operation among States – supports remedial secession will be challenged. In the end, with all due respect, the argument is that the Canadian high court got it wrong. To tie it up with Scotland, little help may come from international law if London is not agreeable for the proposed second referendum on independence.
And here is a direct link. See also Professor Beaulac’s post here. Time permitting, I will blog tomorrow about the Article 50 decision. Until then, you will have to content yourselves with this primer from December.
This content has been updated on January 23, 2017 at 21:10.