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David MacVicar's points are very pertinent. In the first place, there can be no doubt of the constitutional legitimacy of the Calman Commission. It was set up by a majority decision of the Scottish Parliament, which - unlike the so-called European Parliament - has the power to inaugurate legislation within the bounds of its constitutional powers. The fact that the Commission, and its remit, are blatantly politically skewed is another matter. It is the will of the Scottish Parliament, as presently constituted, and that is how it would have to be viewed by the international authorities.
The proposals it comes up with will be another matter entirely, and even then only if there are concrete plans for implementing them. Refusal to hold a referendum on independence would be a matter for reference to the international authorities, especially the Council of Europe and the United Nations. Return of powers to Westminster against the will of the Scottish people would be another classic case for international intervention, as would any other action that was clearly flying in the face of the expressed will of the Scottish people.
This latter point - the clearly expressed will of the people - is the important one. All of the relevant instruments of international law - the Helsinki Final Act, the UN Bill of Human Rights, etc. - are quite specific that the right to self-determination is to be exercised by "peoples", not governments or legislatures, both of which can operate in a tyrannical manner. A refusal to allow the people to express their will, denying them the means to do so, is obvious contravention of the international norms - as in the case of the EU Lisbon treaty.
So let's just wait and see what the Calman Commission comes up with. Nothing can be done on the basis of no information. If the portents are accurate, the whole thing will probably end in an expensive fiasco with no result. We were able to force the issue on devolution at international level because we had a mass of information and evidence of the will of the Scottish people to lay before the Council of Europe and others. For the next stage - more powers and/or independence - we need far more concrete facts, and the unionists are determined to prevent these from being brought out into the open. Discussion and controversy are not in themselves hard evidence, although they certainly indicate the existence of a movement that is gathering force.
An occasion for international intervention will probably arise, although I doubt whether the Scottish case can now be considered under minorities legislation, in view of the existence of the Scottish Parliament and Government. All this will have to be considered in the light of developments, and acted upon, presumably by the new organisation that is presently under discussion to replace the Scotland-UN Committee that was so successful on the devolution issue.
Posted By:
James Wilkie
Posted Date:
05/27/2008
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I am very interested in some comment on the legality of the UKs commission to Review Scottish devolution as headed Sir Kenneth Calman. The commission has the go ahead from the Scottish parliament but it is deliberately excluding the view of the elected Scottish government and the views of many resident in Scotland.
The UK state has ratified the Framework Convention of National Minorities:
Strasbourg, 1 February 1995, ratifying it in 1998.
As a layman my interpretation of some of the ambiguous articles may not be correct however it looks to me that the UK state is in contravention of some aspects of Article 4.
Paragraph 2 states:
"2. The Parties undertake to adopt, where necessary, adequate measures in order to
promote, in all areas of economic, social, political and cultural life, full and effective
equality between persons belonging to a national minority and those belonging to the
majority. In this respect, they shall take due account of the specific conditions of the
persons belonging to national minorities."
So they must 'undertake...to promote all areas of political and cultural life' etc
Mr Calman and Wendy Alexander are both on record stating that they don't think enough people are in favour of independence to warrant exploration of that viewpoint.
Surely a constitutional debate must include all of Scotlands representative viewpoints or it is in contravention of the ratified agreement?
I would love to hear the thoughts of Dr Wilkie on this thorny issue and any other feedback that you care to make. Is it not time that the Council of Europe made some public intervention?
Posted By:
David MacVicar
Posted Date:
04/26/2008
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