An interim constitution for Scotland has recently been published – a draft document for what would be the proposed constitution following a ‘yes’ vote in the forthcoming referendum.
It’s an interesting document for a number of reasons. Given my interests I went straight to the section on ‘territory’.
Here’s the first mention in the summary:
The territory of Scotland
In accordance with international law, the territory of Scotland continues to consist of all the land, islands, internal waters and territorial sea that formed the territory of Scotland immediately before Independence Day.
In suggesting that the territory of (independent) Scotland is the territory of Scotland, which seems tautologous, it is actually a clear attempt to trade on the idea of continuity, and to assuage fears of any potential problems. However, the expansion later on both restates and highlights the potential tension for the future.
Section 6 ensures that there would be continuity between the territory and boundaries of Scotland, as part of the UK, and Scotland as an independent State. Scotland’s territory, including all islands, internal waters and territorial sea, will remain exactly as it is at present. There is no question of any changes being made.
Scotland’s territory and boundaries, unlike that of many countries, have been firmly settled and uncontested for many centuries, with very few adjustments. That the territorial position would remain the same on independence reflects international legal principles in this area. It is widely accepted – including by the UK in previous situations – that when there is a change in political jurisdiction involving the emergence of a State, the boundaries of that State will be the same as the previous internal boundaries of that territory prior to its independence. Therefore an independent Scotland will inherit the integrity of the territory which constitutes Scotland prior to Independence Day, but as an independent state.
As set out in Question 559 of Scotland’s Future, an independent Scotland’s maritime boundaries would be set according to international law. Academics from Aberdeen University have calculated that over 90% of current UK oil and gas revenues are from fields in Scottish waters, based on international legal principles.
Others would be in a better position to judge the last of these paragraphs, but that obscures a lot of potential complexities. If international law were as simple as that, there would be no need for expert witnesses, lawyers and others making their way to the International Court of Justice to resolve boundary disputes at land and sea. If the Aberdeen academics are correct, then I can’t believe the rest of the UK would accept this without some kind of reaction. As the map on the cover of the recent The Land of Scotland and the Common Good shows – reproduced above – this is not straight-forward: see my initial comments here and Phil Steinberg’s more expert comments here.
I’ve written on the constitution of territory before –
Bialasiewicz, L., Elden, S. & Painter, J. (2005) “The Constitution of EU territory“, Comparative European Politics 3, 333-363.
Elden, S. (2008). “Reconstituting Iraq” in Cowen, D. & Gilbert, E. (eds.) War, Citizenship, Territory New York: Routledge, 147-176.
I’m not yet sure there is more to say with Scotland, but it does raise some interesting issues.