The prospect of a referendum on Scottish independence evokes one of the more interesting tensions in modern international law: that between the right to self-determination, on the one hand, and the territorial integrity of states on the other.
This column is not a political commentary on the merits or form of the Scottish referendum. The issue does, however, highlight the contradictions in international law around the right to secede.
During the 20th century, following US President Woodrow Wilson's post World War I pronouncements, there was a growing recognition that peoples have a right to 'self-determination'. This was generally discussed in the context of decolonisation: a process which began tentatively after the First World War and snowballed after the Second.
It culminated in the recognition of this right in the UN Charter (Articles 1.2 and 55). The International Covenant on Civil and Political Rights also states (Article 1.1) that:
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Exactly what the ambit of this right is, however, is less easily stated.
In the colonial context, there seems to have been little difficulty seeing it as a straightforward right to secede. Usually, colonisers and colonies were easily separable entities with vastly differing languages, histories and cultures. Self-determination fitted neatly with the traditional concept of the 'nation-state' and there was therefore little difficulty in arguing for full independence for colonies.
States have, however, been much more squeamish about permitting breakups of established states. Partly, this has been a fear of states fragmenting into ever-smaller and less coherent units.
The African Union, for instance, demands that the (highly artificial) colonial boundaries of its members remain intact for fear of resuscitating dormant ethnic conflicts, such as occurred in the horrific Biafran War of the late 1960s. The UN Charter which mentions self-determination also protects the principle of territorial integrity of its members (Article 2.4).
Who or what constitutes a 'people' for the purposes of self-determination has, in any event, been very hard to define. People have argued for separation on grounds of ethnicity (the Basque conflict), religion (the Bosnian war), political difference (the Northern League in Italy) or a mixture of