Many people will have heard the unofficial Scottish national anthem ‘Flower of Scotland’ being played at the recent Commonwealth Games in Glasgow with its heart swelling line ‘But we can still rise now and be a nation again’. But what exactly is a nation and how does that fit with the current debate on the future of Scotland and the UK?
The Oxford English Dictionary defines ‘nation’ as ‘A large body of people united by common descent, history, culture, or language, inhabiting a particular state or territory.’ Based on this, Scotland defined as a geographical territory with a population of 5.5 million people many of whom have common descent, history, culture and language, could already be said to be a nation, and indeed often is identified as such. However more relevant in legal terms is whether or not it is a state?
The notion of statehood is relevant because states have certain rights and duties. States are entitled to defend their territory, control their borders and are held to be sovereign within those borders provided that they act within international law. States can also contribute to international law and policy through membership of supra-national organisations such as the EU and NATO, and international organisations such as the UN and WHO. Being recognised as a state conveys acceptance by other states and therefore create opportunities for trade and other relationships.
The legal criteria for statehood are defined in the Montevideo Convention (1933) as permanent population, defined territory, government and capacity to enter into relations with other states. At present Scotland fulfils the first three of these criteria, however the power to enter into international relations is reserved to the UK Parliament under the Scotland Act 1998. This last criterion, the capacity to enter into international relations, can be argued to be the most important. This leads to the other ‘requirement’ for statehood – recognition. For a state which is not recognised by other states cannot enter into international relations, it cannot trade or set up diplomatic agreements with other states or conduct any other form of international relations on which the global community is now built.
Recognition can take place as a matter of law (de jure) or as a matter of fact (de facto). De jure recognition could be an official letter from the recognising state to the emerging state, or a statement by the recognising state (for example the UK Government statement recognising the Republic of South Sudan in 2011). De facto recognition is often ‘in principle’ recognition, with the practical consequence of engaging in some official relations but without providing full recognition of the state or being specific about the form of relationship created.
Whilst the legal criteria for statehood are laid down in the Montevideo Convention, recognition of statehood is very much the realm of politics therefore whilst some states fulfil the criteria laid down in the Convention they are not recognised by states and others who do not or no longer fulfil the criteria are recognised and treated as states. Thus the realpolitik is that if Scotland were to become independent the issue of statehood would be as much a matter of politics as of law.
If you are interested to find out more about the law and Scotland, try our free course ‘An introduction to law in contemporary Scotland’.
This article is part of the Scotland's Future collection, exploring the debate and national identity as the country prepares to vote on independence.