Dilemmas regarding the justice of claims for national independence

As most of the world knows – although there are surely corners where the news has not permeated or imposed its importance on the local consciousness – the United Kingdom is undergoing a protracted political crisis in its attempt the leave the European Union. Views on the meaning of this differ, to put it mildly; one could say that this issue has polarised political opinion in the UK more than any other in a generation, perhaps even in the last hundred years. This is not – as is often claimed – because of the stupidity or bad faith intrinsic to one side, but the natural outcome of it being a matter of utmost importance to the future history of the nation, over which there is passionate feeling.

There is a view that, more than a political disagreement, this is a constitutional crisis we are undergoing. I think this is intrinsically unknowable; not because the complexity of the arguments are such that even the best minds disagree – which is true – but because the British settlement is itself the outcome of an evolutionary process. If the UK emerges from this period of crisis with its reputation ultimately enhanced, say in ten or twenty years, we will be able with confidence to affirm the robustness of Britain’s unwritten constitution and its superiority over its scripted rivals. On the other hand, failure to resolve the issue satisfactorily could well weaken the Union fatally and result in its dissolution.

Before focusing on the details of what is happening in the UK, I want to frame the issue in terms of a dilemma inherent in claims for independence that are universal to every attempt to secede from a dominant power. There is a need, therefore, to establish first  that this is indeed the case with regard to Brexit. In his 2006 book Europe as Empire: The Nature of the Enlarged European Union, the political scientist Jan Zielonka draws detailed parallels between the EU and its medieval imperial predecessors. More recently, the sociologist Wolfgang Streeck has written more succinctly on this theme. Lest it be thought that this is an exaggeration by Eurosceptics, I refer to a recent declaration by Guy Verhofstadt, the chief Brexit representative for the European parliament and a former prime minister of Belgium, at this year’s Liberal Democrat conference that:

‘The world of tomorrow is not a world order based on nation states or countries. It is a world order that is based on empires. China, is not a nation, it’s a civilisation. India… is not a nation… The US is also an empire, more than a nation… And then finally the Russian federation… The world of tomorrow is a world of empires in which we Europeans, and you British, can only defend your interests, your way of life, by doing it together, in a European framework and in the European Union.’

All the evidence points towards the EU increasingly centralising power with Germany as the dominant hub. To the EU leaders, then, Brexit is rather more than just leaving a club, even more than seeking a divorce settlement; it is rather more like insurrection in a corner of an empire – at least an empire in ambition and in the making, with all the danger that presents to the project. That the EU is at present incapable of defending itself against such insurrection militarily, does not mean that it goes unpunished. As such, the UK faces the dilemma that all moves for independence face,  because there is not only an issue of legitimacy  – at which point does a claim to autonomy for a territory become legitimate? And with/for whom? – but a fundamental imbalance in power. There has always been a strong undercurrent of the zero-sum game to issues of autonomy. This makes it very difficult to resolve the issue without – at the very least – rancour, and in the worst case scenario civil war.

This question of legitimacy can be divided into three separate questions: What – if any – are the intrinsic limits of such claims? What creates the internal political will to pursue such a claim? and what are the realistic opportunities to achieve such an end? In seeking to answer these questions three principles emerge: the identity of a people; the strength of the popular will behind the claim (which two principles constitute the justice of the claim); and the existence of a mechanism by which the dominant power accedes to the claim (which supplies the politico-legal framework of the legitimacy or otherwise of the claim). These three principles come into play in every bid for territorial independence and a consideration of their interplay results in a fair estimation of the likelihood of success. Each will be considered in more detail.

The first question concerns the relative merits of any calls for secession. Logically, there is no limit to the fractionating of territory and peoples and even the most minor and obscure of issues will sometimes attempt to delineate a separatist cause. Reason demands that there needs to be a limit to this tendency, but the question specifically addresses intrinsic limits. I find that question to be answered by the human psychological need for belonging, in particular belonging to a social group that forms an integral part of our personal identity. In other words, territorial division could never terminate at the level of the individual and their personal property, but somewhere above that in the hierarchy of social groupings; so there is a natural brake to this process. There is, for most of us, a sense of the ‘natural community’ of belonging with people with whom we identify and when this coincides with a geographic region, this can be the seed for secessionary longings.

Certainly in the modern world this sense of identity is more likely to be marked by adherence to a common culture of shared language, religion or history than it is to outdated notions of race. More than this, though, as these differences are in themselves not a sufficient reason for secession, there is inevitably a narrative of grievance that can be wound into a political platform. Many times the grievance is based on real discrimination or persecution; sometimes, it is manufactured solely for partisan political gain. The Kurds of Iraq, Iran and Turkey have a common identity apart from the nations of which they are a part and have genuine reasons for wanting to break away, having suffered persecution and the status of second-class citizens, although the likelihood of the emergence of a united and independent Kurdistan is remote.

The second principle is that of the strength of the popular will, the ‘momentum’ or the existence of a ‘critical mass’ for a change in the territorial settlement of a nation. There is a spectrum of claims from the trivial to the momentous and unstoppable. What actually constitutes a legitimate claim, though, is questionable. It is not simply about numbers, for example a majority in a region which want to secede. There are invariably  geopolitical concerns on the part of the dominant power in giving up a territory that trump the wishes of that desire among a population. There may be economic reasons against giving up a particularly productive territory. These are, of course, pragmatic considerations rather than arguments against just cause. In the end, it might be only a question of the relative power of the cases being made. The problem is, there is no transcendent point from which such competing claims be judged, wherever we might, as individuals, stand. The nature of these things is that they they must be fought in the court of public opinion between the state and the secessionist proto-state.

Other things being equal, there are moral rules of thumb by which we might arrive at a personal decision on where our sympathies lie. If the refusal to grant autonomy creates a huge injustice in terms of the suffering of a people, we might consider the claim to be just; otherwise not. If the claim is made on the basis that a people believe it is to their economic advantage, even if it is to the detriment of the wider region, we are much less likely to be sympathetic. If the people have a history of independence and this has been removed by conquest or diluted  or subterfuge, there is probably a stronger case. The case of the Uighurs is compelling in this context. Granted a relative degree of autonomy in 1955, the Xinjiang region was largely ignored until its economic potential became obvious to Beijing after which the Han population started to increase and impact on the indigenous culture and language. Resistance to the disappearance of their culture was met with an authoritarian response, which in turn initiated an outbreak of terrorist attacks among a relatively peaceful people. The response of Beijing has been to take total control of the region, the most complete surveillance of a population in the world and the incarceration and indoctrination of an estimated 1-2 million people in concentration camps.

The third principle relates to the existence of a legal mechanism for the independence of a region. In the absence of any such framework there is no right of independence and little recourse for the supplicant state but to either give up its ambition or to engage in extra-legal means such as sabotage and terrorism, raising the cost significantly – for both sides: that of the dominant state of holding on to a recalcitrant population and that of the separatists of undermining the moral strength of their claim. Independence is, as stated earlier, fundamentally a zero-sum game, however we look at it. There are rare cases, such as the partition of Czechoslovakia, when the country divided into two relatively equal parts by mutual consent. In the majority of cases a region is attempting to secede from a nation, such as the Basque region’s attempt to separate from Spain in 2017. As Spain has no constitutional mechanism for this to happen the only outcome in the political crisis was annulling of the independence referendum and the arrest of the leaders of the separatist government.

The clash between the justice of a cause and its legitimacy in law is the space in which we can feel morally conflicted. It has long been accepted that Scotland, for example, has a right to cede from the United Kingdom. The justice of Scotland’s move towards independence, though, is questionable. Scotland and England have a shared history of 300 years and, despite the distinctiveness of Scottish culture, the population of Scotland is as heterogeneous as that of any other part of the UK. Granting greater autonomy to Edinburgh and the establishment of a Scottish Parliament, rather than settling the matter of cultural distinction and historical grievance, have given it a permanent political character. Scots have had unfettered access to British institutions of influence during this period of union and have shared in its prosperity. Moreover, in a ‘once in a generation’ referendum in 2014 the people voted to stay part of the UK. So for the political representatives of 8% of the population to continually lay claim to a third of the landmass of Great Britain is of dubious legitimacy.

The case for British identity vis a vis Europe is, I think, stronger than of Scotland’s separate identity within the the UK. The UK existed as an independent country for more than 250 years prior to joining the EU and its constituent parts for centuries more prior to their union. A strong case has also been made that the transfer of powers was achieved through sleight-of-hand in an manifestly undemocratic way, which has fuelled a popular sense of injustice. In terms of culture there is clearly a sense of common identity, even though this has been diluted over the past 50 years by waves of immigration.  The requisite critical mass of popular support for independence was supplied by the outcome of the referendum of 2016. Despite this, Brexit has proved to be fraught with difficulties despite the existence of a mechanism for withdrawal, triggered by article 50 of the EU constitution. The past three years has seen obstacle after obstacle thrown in the path of independence. Intentionally or otherwise, the EU has achieved a significant victory in moving the civil war into the supplicant nation, rather than fighting rebellion on its own periphery.

At dispute seem to be two fundamental questions. The first is how we evaluate the outcome of the 2016 referendum on membership of the EU. On the surface this seems to have a simple answer: the outcome was the decision to leave. However, from the beginning this apparent result was challenged. There were claims of irregular and unlawful practice, lying and cheating, misappropriation of campaign funds, in fact the whole litany of standard accusations in politics throughout the ages, few of which have been tested in court and none of which in themselves has resulted in any attempts to cancel the outcome. There was the claim that the 52-48% win for leave did not constitute a sufficient margin for undertaking such a momentous change, which seems a reasonable claim until consideration is given to whether the same conditions for the opposite outcome would have applied, when it becomes obvious that this is just a case of special pleading. In fact, an acceptable margin had not been established beforehand. The outcome was also challenged on the basis that a referendum could only be advisory; however, inviting the population to take part in a historic referendum and then ignoring the popular will would be politically dangerous, especially as the turnout for the referendum was over 70% of the electorate.

The second question, which has arisen in the wake of the referendum, and particularly in the most recent weeks, concerns the way in which parliament represents the people it is supposed to serve. As we are a representative democracy in which MPs are voted in to represent the electorate in their constituency, this seems to be the crux of the dilemma we are now facing. Is it simply a matter of electoral arithmetic that the MPs, who were overwhelmingly remainers, accurately represented their constituencies, while being at odds with a plebiscite of the entire nation? A similar phenomenon is fairly common in general elections when the outcome of the ‘first-past-the-post’ system – and the number of seats in parliament – is not representative of the popular vote. However, it is well-established that there are a significant numbers of MPs whose preference – and, more significantly, their subsequent actions – are at variance with their constituents. I understand why many MPs might feel conflicted, not just because of their personal preference and what they consider the best interests of the country and their constituents, but because they might represent a constituency that voted remain on balance. However, this is to miss the point entirely. The referendum was a nationwide vote on a single issue – whether the UK was to remain in the EU or to leave the EU – so their personal reservations or the votes of their constituency locally count for nothing. Whether Londoners or Glaswegians voted decisively to remain is irrelevant, because the UK did not.

There are without doubt complexities to the issue such that it would be rash to accuse these MPs of bad faith in seeking to find the best possible outcome in exiting the EU. However, it is very difficult to see what these MPs will achieve, other than to frustrate the process of leaving and have the UK remain in the EU. They will not state this in so many words, for to do so would be to delegitimise the basis of democracy in the country, which is founded, after all, on the popular will. They voted repeatedly against an admittedly bad deal and have now voted to prevent a no-deal scenario, despite the most obvious point that to negotiate successfully there must be the option of walking away from the table, forcing the Prime Minister to request yet another extension, having squandered two previous extensions.

My conclusion is that MPs and other players have chosen to adhere to their their original position in the referendum rather than abide by its outcome and this is the major source of both the political and constitutional instability we are witnessing. The constitution has functioned well until now because of a shared set of assumptions, rules and values which have governed politics in the UK, the most important one in this case being that the results of votes are decisive, sacred even. Remainers have refused to accept the verdict and are employing a series of legal technicalities and maneuvers to block the realisation of Brexit. In response, the PM has deployed the tactic of attempting to ignore the law and subvert parliament. Whatever the outcome of this battle, it is debatable whether the tradition of an unwritten constitution that evolves through necessary piecemeal reform will survive.

In attempting to see the process of Brexit from a more disinterested viewpoint of the principles of independence applicable anywhere, account must be taken of the EU perspective. For Brussels and Berlin the prospect is one of losing territory, a diminution of territorial projection (through access to the UK military forces), no open access to one of the strongest economies in the world, as well as its jobs and skills markets. As the major power in the negotiation of the terms of the break it has no obligation to make this process easy for the UK. The EU claims we have proposed no serious alternative to the Irish backstop. Perhaps the UK should be flexible on the future of Northern Ireland. The region voted remain and the numbers are moving towards acceptance of unification with the republic. The condition would be that no such consideration should be given to Scotland becoming independent and being welcomed into the EU. Putting aside the hypocrisy of the backstop which Brussels has imposed on the UK in order to prevent a hard border in Ireland, only to then impose a hard border on the British mainland by the accession of a new member, the appearance of such a border could be interpreted as an act of war by a hostile power.

About the Author

Don Trubshaw
Don Trubshaw is a co-founder of the website Societal Values. He has a PhD in the philosophy and sociology of education and teaches in Higher Education.

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