28 June 2013

The Decolonisation Papers: Negotiating a better pathway to Scottish independence

Occasional papers on the self-determination/decolonisation process.

 Prof. David Scheffer

Director of the Center for International Human Rights
 Northwestern University School of Law

Earlier this month Whitehall released a report, bolstered with an annexed legal opinion by two distinguished law professors, entitled, Scotland analysis: Devolution and the implications of Scottish independence. The Whitehall report followed my own remarks on the legal implications of Scottish independence at the University of Glasgow in late January. 

The Whitehall report merits careful scrutiny in the months ahead. No one doubts that Scottish sovereignty existed more than three centuries ago, whereas in almost all other self-determination movements the clarity of former sovereignty has been absent. Two sovereign nations entered into the Treaty of Union of 1707. That treaty united two countries into “One Kingdom by the Name of Great Britain,” but the Whitehall report opines that “…Scotland certainly was extinguished as a matter of international law, by merger either into an enlarged and renamed England or into an entirely new state.” 

Some would strongly disagree with this conclusion and argue that the Scottish people retained their right of self-determination within a distinct part of Great Britain that continued with an autonomous national character (particularly in law, culture, and religion). A major premise of self-determination is to overcome rigid presumptions, particularly where the historical record favors challenging conventional thinking heavily weighted with examples of decolonization. The sui generis character of Scotland derives from its past sovereignty reasserting itself in a modern application of self-determination culminating in the 2014 referendum. 

Nonetheless, the Whitehall report presents a fait accompli for the continuation in law of the United Kingdom as the “continuator state” in the event of an affirmative referendum vote for Scottish independence. With its repeated arguments for the continuator theory, the Whitehall report develops further positions reinforcing the continuation of the status quo for the remainder of the United Kingdom (known as “rUK”) while Scotland would be cast off as a new state in almost every respect, to initiate its own treaty relations and membership in international organizations. Thus is built a pyramid of presumptions based upon the initial premise of the continuator theory and yet little of which relates to the sui generis character of the Scottish situation. 

The Whitehall report repeatedly emphasizes the scale and complexity of legal issues flowing from Scottish independence, even more so if the continuator theory holds, as the report insists it must. One cannot help but observe a political objective at work in the Whitehall report, namely to make the legal implications appear so burdensome and traumatic for Scotland and its people, particularly under the presumptive continuator theory for the rUK, that voters will decide it is not worth the effort and vote “no” on the independence referendum. 

Alas, the Whitehall report presents a false dilemma: If Scotland votes for independence in the referendum, then the rUK will act pursuant to the continuator theory and essentially refuse to cooperate, through negotiations, for a reasonable transition for both Scotland and the rUK that sustains membership in international organizations for both nations and provides an amicably negotiated continuation of treaty relations for both. Indeed, the Whitehall report suggests engaging in negotiations that may have no discernible end, validating the improbability of independence. 

The report assumes a confrontational negotiating scenario in the wake of an independence vote rather than a cooperative one. It locks in such confrontation by insisting on the continuator theory and then letting all of the difficulties for a transition flow from that single presumption. 

The rules set forth in the 1978 Vienna Convention on Succession of States in Respect of Treaties favor Scotland in creating a more balanced approach to the transition, but are dismissed in the Whitehall report as not yet customary law… 

and thus not binding on the United Kingdom. Such a conclusion overlooks the report’s own cautionary point that “in the vast majority of situations the matter is likely to be regulated by specific arrangements.” Precisely! 

A constructive way to approach the transition to independence following an affirmative vote on the referendum would be to adopt a plan whereby two co-equal successor states mutually agree to approve or acquiesce in continued membership for both states in international and regional organizations and approve or acquiesce in relevant treaty relations. That would be an amicably negotiated basis for transition that is credible under international law and respectful of the rights of the citizens of both Scotland and the rUK. It would avoid a “clean slate” approach for Scotland triggering slash and burn consequences that surely would deepen the rift between Scotland and the rUK for generations. Why go down such a politically destructive path? 

The great challenge of the negotiations should be how to manage the approval and acquiescence decisions of the rUK and Scotland within the rules of international and regional (European Union) organizations and with the parties of thousands of treaties. If the rUK and Scotland can reach mutual agreement, constructively, on how to achieve most efficiently Scotland’s entry into international and regional organizations and participation in relevant treaties, other governments likely would acquiesce in or readily approve that mutual agreement. Yet the Whitehall report needlessly points to a far more difficult and injurious path for Scotland. 

The Whitehall opinion argues for the centrality of the rUK continuing permanent membership in the U.N. Security Council, NATO, the Non-Proliferation Treaty as a nuclear weapons state, and as a major economic power in the International Monetary Fund. The continuator theory guarantees all of that power and status quo for the rUK without much fuss, so it would be expected that Whitehall advocates it. 

Yet it appears more difficult, following U.K. Prime Minister David Cameron’s speech on 23 January 2013 recommending a referendum on the United Kingdom’s European Union membership, to insist on the centrality of such membership when, in contrast, the Scottish Government’s position is to sustain Scotland’s participation in the European Union following independence. 

Instead of relying on the presumptive application of a legal theory, Whitehall could seek Scotland’s acquiescence to the continuation of the rUK’s status in the Security Council and other key organizations and treaty arrangements. The Scottish acquiescence would be far more convincing to other governments than for the rUK to advance the continuator theory and hope for the best (especially in the Security Council). Other governments likely will be drawn to a cooperative methodology for transition, rather than one grounded in isolating Scotland while rewarding the rUK. 

In return for Scotland’s acquiescence, the rUK would be expected to readily endorse a smooth transition for Scotland’s membership in, among other entities, the United Nations, NATO, World Bank, International Monetary Fund, and the European Union. As it stands, the Whitehall report seeks to create the most difficult pathway when in fact there is a much easier one to take if only London were willing to help pave it. 

Even if Whitehall remains wedded to its legal analysis prior to the referendum, then following any affirmative vote for independence, the continuator theory should be shelved so that the fairest and most efficient transition process can be negotiated and followed, including marketing it to other governments and to international and regional organizations. 

The Whitehall report is at its weakest when examining the rights of EU citizens in Scotland… 

(Scots are also EU citizens), and even at times with respect to EU membership per se. The value of a negotiated outcome that coordinates for a smooth transition within the European Union of the rUK and an independent Scotland appears self-evident in the report’s own words. 

The better alternative would be endorsing a negotiated co-equal successor state status in the negotiations. There is a sound basis in international law for it. If the talks are approached in that spirit, the stage would be set for far more productive and efficient grants of approval and acquiescence to facilitate treaty relations and membership in organizations of an independent Scotland. Also, a negotiated co-equal successor State status would not require the rUK to arise anew from a “dissolution” of the United Kingdom or to lose its EU, United Nations, NATO, or any other membership. 

Finally, the Whitehall report’s bold presumption that national liabilities would have to be negotiated and thus shared between Scotland and the rUK under the continuator theory rests on very thin ice. On what legal basis would Scotland be obligated to assume any significant level of United Kingdom liabilities if the rUK is the continuator State? The Whitehall opinion offers no basis for establishing an obligation to share financial liabilities. Scotland’s leverage nonetheless would lie in agreeing to negotiate the sharing of national liabilities if the rUK sets aside the continuator theory as the basis for legal implications and agrees to negotiate in good faith with the commitment to approve and acquiesce where necessary to facilitate Scotland’s engagement with the international community. 

The objective of both parties should be to create the least resistance to a transition for the emergence of two independent states, richly endowed in history, and to demonstrate how a model for self-determination can work for the benefit of all peoples of the isles. This should result in the continued strength of the critical treaties and international organizations bonded to the United Kingdom at present. Such an outcome is not mission impossible. 

David Scheffer is a law professor and director of the Center for International Human Rights at Northwestern University School of Law in Chicago. He is a former U.S. Ambassador at Large for War Crimes Issues (1997-2001) and co-author of Self-Determination in the New World Order. 

27 June 2013

United Confederation of Taino People asks U.N. Indigenous Issues Forum to convene expert group on non-self governing territories

Similar recommendation contained in report on "Decolonization in the Pacific" presented to the Permanent Forum in May.


UCTP submission to U.N. Permanent Forum on Indigenous Issues (UNPFII) under Item 8: Future work of the Permanent Forum, including matters of the Economic and Social Council and emerging issues


Submission by the United Confederation of Taíno People (Caribbean Regional) Presented by Roberto Mukaro Borrero 

Takahi kena hahom. Greetings and thank you Mr. Chair: 

The United Confederation of Taíno People is a regional initiative representing Indigenous Peoples of the Caribbean Islands. We have participated at every session of the UNPFII seeking to raise the visibility and promote a better understanding of the situations of Indigenous Peoples from this region, which is connected to Latin America in these proceedings. 

Indeed, while the term Latin America and the Caribbean is promoted at various levels throughout the Permanent Forum sessions, as well as throughout the United Nations system, the full and effective participation of Indigenous Peoples of the Caribbean is unfortunately a rarity rather than the norm. 

On the unusual occasion when Caribbean Indigenous Peoples, Indigenous islanders in particular, are highlighted within the system, there has been very little action on the part of U.N agencies or governments to engage in meaningful dialog or follow-up. 

For example, the Programme of Action for the Second International Decade of the World’s Indigenous Peoples, under Item 6 Social and economic development, section b-85 states, and I quote: 

“ It is recommended that representatives of Caribbean indigenous peoples should be included in region-specific consultations and conferences in Latin America and the Caribbean, and on steering committees for planning and implementing the programme of activities for the Second International Decade. Serious consideration should also be given to organizing a special regional consultative session focusing on the unique situation of Caribbean indigenous peoples, which would take place in the Caribbean, hosted by a Member State and a local indigenous community.” 

Mr. Chair, to date there has been no such meeting and we are now nearing the close of the second Decade.With this in mind, the United Confederation of Taíno People recommends that the Permanent Forum: 

1.) Call on the Inter-Agency Support Group and Governments to support a regional consultative meeting on the situation of Caribbean Indigenous including Indigenous Peoples of non-self governing territories and unincorporated territories in the region, without discrimination. 

2.) In cooperation with Indigenous Peoples, organize and hold an expert group meeting on the situation of Indigenous Peoples of non-self governing territories and unincorporated territories in 2014 and report on said meeting at its 13th session.

25 June 2013

U.N. Decolonization Committee resolution on Puerto Rico

Decision of the U.N. Special Committee of 18 June 2012 concerning Puerto Rico

The Special Committee,

           Bearing in mind the Declaration on the Granting of Independence to Colonial Countries and Peoples, contained in General Assembly resolution 1514 (XV) of 14 December 1960, as well as the resolutions and decisions of the Special Committee concerning Puerto Rico,

           Considering that the period 2011-2020 was proclaimed by the General Assembly, in its resolution 65/119 of 10 December 2010, as the Third International Decade for the Eradication of Colonialism,

           Bearing in mind the thirty-one resolutions and decisions adopted by the Special Committee on the question of Puerto Rico contained in the reports of the Special Committee to the General Assembly, in particular those adopted without a vote in recent years,

           Recalling that 25 July 2013 marks the one hundred and fifteenth anniversary of the intervention in Puerto Rico by the United States of America,

           Noting with concern that despite the diverse initiatives taken by the political representatives of Puerto Rico and the United States in recent years, the process of the decolonization of Puerto Rico, in compliance with General Assembly resolution 1514 (XV) and the resolutions and decisions of the Special Committee on Puerto Rico, has not yet been set in motion,

           Bearing in mind that the people of Puerto Rico mostly rejected its current status of political subordination on 6 November 2012,

           Stressing the urgent need for the United States to lay the groundwork for the full implementation of General Assembly resolution 1514 (XV) and the resolutions and decisions of the Special Committee concerning Puerto Rico,

           Noting that the Inter-agency Task Force on Puerto Rico’s Status designated by the President of the United States, which submitted its third report on 16 March 2011, reaffirmed that Puerto Rico is a territory subject to United States congressional authority,

           Taking note of the Declaration adopted at the I Summit of the Community of Latin American and Caribbean States (CELAC) held in Santiago, Chile, on 27 and 28 January 2013, in which the Latin American and Caribbean character of Puerto Rico is highlighted, and note is taken of the resolutions on Puerto Rico adopted by the United Nations Special Committee on Decolonization, identifying it as an issue of interest of CELAC,

           Also noting the Special Declaration on Puerto Rico adopted by the Heads of State and Government of the Bolivarian Alternative for the Peoples of Our Americas in Caracas on 4 and 5 February 2012, whereby they expressed their strong support for the inalienable right of the people of Puerto Rico to self-determination and full independence; recalled that Puerto Rico is a Latin American and Caribbean nation with its own unmistakable identity and history, whose rights to sovereignty have been violated by the imposed colonial rule for more than a century; stressed that the cause of the independence of Puerto Rico concerns the region of Latin America and the Caribbean and their forums for dialogue and political cooperation — particularly the Community of Latin American and Caribbean States, and demanded the release of political prisoners convicted for fighting for the independence and self-determination of Puerto Rico, including comrade Oscar López Rivera, who has been imprisoned under inhumane conditions for thirty-two years,

           Further noting the “Panama Proclamation”, adopted by the Latin American and Caribbean Congress in support of Puerto Rico’s Independence, which was held in Panama on 18 and 19 November 2006 and was attended by 33 political parties from 22 countries of the region, the conclusions thereof were reaffirmed in the declaration adopted by the Council of the Socialist International in Portugal, on 5 February 2013, expressing support to the repeated and unanimous call of the United Nations Special Committee on Decolonization for the General Assembly to examine the colonial case of Puerto Rico, and for the release of Oscar López Rivera and other Puerto Rican patriots who are serving sentences in jails in the United States; and satisfaction and solidarity with the overwhelming rejection of the people of Puerto Rico to the continuation of the current colonial status of Puerto Rico is likewise demonstrated,

           Noting also the debate in Puerto Rico on the search for a procedure that would enable the launch of the process of decolonization of Puerto Rico, and aware of the principle that any initiative for the solution of the political status of Puerto Rico should originate from the people of Puerto Rico,

           Aware that Vieques Island, Puerto Rico, was used for over 60 years by the United States Marines to carry out military exercises, with negative consequences for the health of the population, the environment and the economic and social development of that Puerto Rican municipality,

           Noting the consensus existing among the people and the Government of Puerto Rico on the necessity of ensuring the clean-up, decontamination and return to the people of Puerto Rico of all the territory previously used for military exercises and installations, and of using them for the social and economic development of Puerto Rico, as well as on the slowness of the process thus far,

           Also noting the complaints made by the inhabitants of Vieques Island regarding the continued bombing and the use of open burning for clean-up, which exacerbate the existing health problems and pollution and endanger civilian lives,

           Further noting the consensus among the people of Puerto Rico in favour of the release of the Puerto Rican political prisoners, some of whom have been serving sentences in prisons in the United States of America for more than thirty years for cases related to the struggle for Puerto Rico’s independence,

           Noting the concern of the people of Puerto Rico regarding violent actions, including repression and intimidation, against Puerto Rican independence fighters, including those that have recently come to light through documents declassified by federal agencies of the United States,

           Also noting that in the Final Document of the Sixteenth Summit Conference of Heads of State and Government of the Movement of Non-Aligned Countries,[1] held in Teheran, Islamic Republic of Iran, from 26 to 31 August 2012, and other meetings of the Movement, the right of the people of Puerto Rico to self-determination and independence is reaffirmed under General Assembly resolution 1514 (XV), the Government of the United States is urged to assume its responsibility to expedite a process that will allow the Puerto Rican people to fully exercise their inalienable right to self-determination and independence and to return the territory and occupied installations on Vieques Island and at the Roosevelt Roads Naval Station to the Puerto Rican people, who constitute a Latin American and Caribbean nation, and the General Assembly is urged to actively consider the question of Puerto Rico in all its aspects,

           Having heard statements and representative testimonies of various viewpoints among the people of Puerto Rico and their social institutions,

         Having considered the report of the Rapporteur of the Special Committee on the implementation of the resolutions concerning Puerto Rico:[2]

1.       Reaffirms the inalienable right of the people of Puerto Rico to self-determination and independence in conformity with General Assembly resolution 1514 (XV) and the applicability of the fundamental principles of that resolution to the question of Puerto Rico;

2.       Reiterates that the Puerto Rican people constitutes a Latin American and Caribbean nation that has its own unequivocal national identity;

3.       Calls again upon the Government of the United States of America to assume its responsibility to expedite a process that will allow the Puerto Rican people to fully exercise their inalienable right to self-determination and independence, in accordance and in full compliance with General Assembly resolution 1514 (XV) and the resolutions and decisions of the Special Committee concerning Puerto Rico;

4.          Notes the broad support of eminent persons, Governments and political forces in Latin America and the Caribbean for the independence of Puerto Rico; 

5.        Again notes the debate in Puerto Rico on the implementation of a mechanism that would ensure the full participation of representatives of all viewpoints prevailing in Puerto Rico, including a constitutional assembly on status with a basis in the decolonization alternatives recognized in international law, and aware of the principle that any initiative for the solution of the political status of Puerto Rico should originate from the people of Puerto Rico; 

 6.        Expresses serious concern regarding the actions carried out against Puerto Rican independence fighters, and encourages the investigation of those actions with the necessary rigour and with the cooperation of the relevant authorities; 

 7.       Requests the General Assembly to consider the question of Puerto Rico comprehensively in all its aspects; 

 8.       Urges the Government of the United States, in line with the need to guarantee the Puerto Rican people their legitimate right to self-determination and the protection of their human rights, to complete the return of occupied land and installations on Vieques Island and in Ceiba to the people of Puerto Rico, respect fundamental human rights, such as the right to health and economic development, and expedite and cover the costs of the process of cleaning up and decontaminating the areas previously used in military exercises through means that do not continue to worsen the serious consequences of its military activity for the health of the inhabitants of Vieques Island and the environment; 

 9.       Reiterates its request to the President of the United States of America to release the following Puerto Rican political prisoners serving sentences in United States prisons for cases relating to the struggle for the independence of Puerto Rico: Oscar López Rivera, who has been serving a sentence for over thirty years and whose case is of humanitarian character, and Norberto González Claudio, who was arrested most recently; 

 10.      Takes note with satisfaction of the report prepared by the Rapporteur of the Special Committee, in compliance with its resolution of 18 June 2012; 

 11.       Requests the Rapporteur to report in 2013 on the implementation of the present resolution; 

 12.       Decides to keep the question of Puerto Rico under continuous review.

          [1]            A/67/506-S/2012/752, annex I.
          [2]            A/AC.109/2013/L.13.