Legal arguments grounded in international covenants remain symbolic

The National

15-07-2025

Mike's argument hinges on the idea that a democratic mandate within the Scottish Parliament, supported by international instruments such as the International Covenant on Civil and Political Rights (ICCPR), can create a legal obligation on Westminster to hold a referendum and respect its outcome. This reflects a critical misunderstanding of UK constitutional law and the nature of sovereignty.
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Under the constitutional doctrine of parliamentary sovereignty – a cornerstone of UK constitutional theory established since R (Miller) v Secretary of State for Exiting the European Union (2017) – no devolved institution can lawfully alter the constitutional status of the UK without Westminster's explicit consent. The UK Supreme Court's 2022 judgment reaffirmed this principle: the Scottish Parliament's powers are limited by the Scotland Act, a statute of Westminster, which reserves constitutional matters – including independence – exclusively to the UK Parliament.
Legal scholars such as AV Dicey famously defined sovereignty as the ultimate legislative authority within a state. In the UK, this authority resides solely in Westminster. Democratic mandates within Scotland, however genuine, cannot override this legal reality. Mike's reliance on ICCPR ratification ignores that international human rights law – including the ICCPR – does not supersede domestic constitutional arrangements. It offers political leverage but no enforceable right to secede or unilaterally legislate independence.
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Further, international law, as clarified in the Kosovo Advisory Opinion of the International Court of Justice (2010), is neutral on declarations of independence; it neither prohibits nor guarantees recognition. Recognition remains a political act based on effective control and international relations, not legal entitlement.
Mike's approach is effectively a rephrasing of the SNP's long-standing but legally impotent strategy: secure a democratic mandate, then petition Westminster or the courts. This 'legal pathway' has been explicitly rejected by the UK Supreme Court and lacks any constitutional basis for compelling change.
In contrast, constitutional change in states founded on parliamentary sovereignty cannot be achieved through legal argument alone. It requires political authority that transcends existing legal limits – exercised by the people themselves, not their parliamentary proxies – through actions that alter the facts on the ground.
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By failing to engage with these fundamental legal principles, Mike's letter risks perpetuating confusion, giving false hope to the independence movement, and entrenching the constitutional status quo.
To achieve true sovereignty, Scotland must recognise that constitutional law as it stands is a reflection of power, not justice or democracy. Without shifting the balance of power, even legal arguments grounded in international covenants remain symbolic.
James Murphy
Bute
AT times I wonder why I buy The National every day and encourage others to get it, then on a day like Sunday I know exactly why I do this, because I find the level of open debate very interesting and stimulating. The two letters in the Sunday National from James Murphy and Mike Wallace were excellent, well-researched and presented. Not only did I find them very interesting, but I agree 98% with both of them.
Now, James and Mike might be surprised to hear me say that, because their letters made it clear that they thought Respect Scottish Sovereignty took a different position than they do. Well that must be my fault – I obviously did not explain the RSS position clearly enough.
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First, on the question of 'legal authority', RSS believes, as they do, that the highest legal authority in Scotland, is the sovereignty of the Scottish people. We are not looking for legal authority from the UN, we want the UN human rights covenants put into Scots law. Some of them already have been, but we want others put into Scots law. The present 'devolved parliament', has very limited power, but does, under the Scotland Act, have the power to do this. That we have already established.
Do we think that if we get that, the problem is solved? No, we have no illusions about that. We know that the UK establishment will fight tooth and nail to hold on to Scotland's resources, and will not give up easily. That is clear from 'British' history.
We in RSS know that clearing a legal path to self-government will not be achieved just by getting the UN human rights covenants into Scots law. We understand that a mass movement pushing for direct democracy will be required. This can be done more effectively under this legislation, in order to force the UK establishment to back off. We know that this fight will need to be directed at many targets economic, political, and civil. That is why we are developing direct democracy units across Scotland.
Mike says he is one of the 7000 who have signed our petition and I expect James is another. But, they are both right that we need political power behind us – not a political party, although we welcome support from all quarters, but people from all parts of Scotland with demands on a whole range of issues, who are prepared to use the legal powers in the UN covenants, put into Scots law to demand change and to push hard for it.
We are not armchair revolutionaries with a theory and no practical way of implementing the changes we need. We are entirely conscious of the need for people's involvement and we are preparing for that, but we need to provide the legal framework within which we can mobilise. My own experience is in the Skye Bridge battle, which the people of Skye won. If we can't get people like James and Mike on our side and working with us, we have no chance. But if we do, and can mobilise the sovereign Scottish people, we are invincible.
Andy Anderson
National Convener, RSS (Respect Scottish Sovereignty)