On Intersections of Land, Law, and Literature, from Primitive Territories to the Post-National Future

Drafting Scottish Independence: From Oil Rights to National Anthems (June 21, 2014)


The Scottish Government has issued the Scottish Independence Bill, which is meant to serve as the “constitutional platform” for a new Scottish sovereign state, if Independence Day follows from an affirmative vote on the upcoming Independence referendum, about which I wrote this blog’s first entry. I first learned about this development from reading Stuart Elden’s Progressive Geographies blog, which includes Elden’s excellent analysis of the territorial aspect to the Scottish constitution bill. While there is much to look over in this fascinating document, which features a draft Constitution and a lengthy appendix describing each section in detail, and I will most likely be revisiting this a number of times before the September 18 vote, the territorial issues isolated by Elden do indeed merit the most immediate attention. As Elden observes, the redactors’ stated confidence in Scotland’s “territorial integrity” being a simple matter that international law will straightforwardly confirm seems well off the mark—especially when you consider that the explanatory section in the appendix to the constitution bill cites Aberdeen University scholars asserting that “over 90% of current UK oil and gas revenues are from fields in Scottish waters, based on international legal principles” (Chapter 2, Part 2, Section 6 here). My guess is that, if Scotland indeed repeals the 1707 Act of Union and becomes an independent sovereign state, a now Scotland-less British government would not be as sanguine as the Scottish Constitution Bill redactors about the notion that Scotland’s territory is uncontestable.

            It is especially intriguing to me that the Scottish Constitution Bill both asserts that “international law” would recognize that Scotland should retain its territorial integrity that it had before the 1707 Union (Part 1, section 7) and that it will remain a constitutional monarchy with the current Queen of Britain as the head of state (Part 1, section 9) . Perhaps one reason that it is so important to keep Scotland a monarchy and to keep the current Queen as head of state (as well as her successors) is that much of Scottish territory that could plausibly be contested—namely, the Shetland Islands and Orkney Islands, both of which came into official Scottish possession in 1470 when Christian I, as King of Norway he was also King of Denmark and Sweden), defaulted to Scotland’s King James III on his dowry for his daughter Margaret, who became Queen of a Scotland with two more archipelagoes that would, in 2014, add significantly to the oil and gas reserves Scottish Independence planners want to maintain). Since the Orkneys and the Shetlands were annexed to the Scottish Crown as personal territories, it would seem that Scottish Independence planners could not have considered moving beyond 1707’s Act of Union: if they sought to abrogate the Union of the Crowns in 1603 (on which see these surveys; this union was not just a ceremonial union of the Crowns of England and Scotland in the person of James VI and James I, by the way, but also included legislation, such as the English Parliamentary Union of England and Scotland Act of 1603), then that might well  enable claims by Queen Elizabeth on virtually any Scottish soil—after all, she maintains the personal throne in direct line proceeding from James I / VI.

            Once again, I am quite sure I will be spending a lot of time reading this fascinating document, but I wanted to point out some of the immediate observations I had, besides marveling at how the complex territorial issues that will surely be unleashed into the world of international law with a pro-Independence vote in the referendum are optimistically reduced to a simple legal issue in the document:

            I was quite fascinated by the Bill pointing out that “the principle of the rule of law continues to apply in Scotland” (Part 1, Section 15.1). Much as with William I’s method of dealing with the conquest of England—essentially claiming that the government continued as before, with simply a righting of the succession to him and some—ahem, minor changes in elite personnel—the pro-Independence redactors of this document seem very zealous to highlight continuity in the process. There is clearly a great desire to avoid any language that sounds like revolution—and indeed the major theme running through the document appears to be that the ultimate goal is simply reverting, on the sovereignty question, to the state of Scotland in 1706, while keeping as much continuity as possible.

            Scotland’s status as a profoundly archipelagic country is nicely woven into the Constitution Bill, which states that the government will pay attention to “particular needs” of “island communities,” which are not reduced to a single type but seen as each having “distinctive geographical characteristics” (Part 1, Section 30).

            This Constitution Bill is strikingly environmentalist: a “healthy environment” is seen as an “entitlement” for all (Part 1, Section 31.1), which falls in line with Environmental Justice views, while 1.31 also weaves into the constitution a commitment to preserve biodiversity and struggle against “climate change.” Especially for such a succinct Constitution draft, this environmentalist language does not at all seem like mere verbiage, but really stands out as a significant commitment.

            Especially considering my recent thoughts about national anthems in the context of World Cup nationalism and British identities, I was intrigued to see the way in which the Constitution bill clearly confirms the Saltire (or St. Andrew’s Cross) as the existing Scottish flag, but leaves open the legislature’s ability to declare a national anthem. While implying ownership of over 90% of the United Kingdom’s oil and gas reserves was evidently not too contentious, deciding between “Flower of Scotland” and “Scots Wha Hae” (among other candidates) was too hot of a topic to handle.

            One final note: although it simply states the obvious, I was struck by the simple essence of the whole independence movement, linked to a single legal act: “The Union with England Act 1707 is repealed” (Part 1, section 35). Most probably, as with the case of working out the details of territorial rights, the truth of the matter will be much more complex than a single sentence can convey—but it is indeed quite thrilling to see how all of what is at stake in the September 18 vote hinges upon this single reversal of the currently ongoing union.


Author: Randy P. Schiff

I am an Associate Professor of English currently at the University at Buffalo, SUNY. I specialize in Middle English literature, with special interests in alliterative verse, medieval romance, Scottish poetry, Old French poetry, Arthurian literature, ethnic identity, imperialism, nationalism, ecocriticism, courtly love, and literary history.

12 thoughts on “Drafting Scottish Independence: From Oil Rights to National Anthems (June 21, 2014)

  1. Pingback: More on the Constitution of Scottish Territory | Progressive Geographies

  2. https://consult.scotland.gov.uk/elections-and-constitutional-development-division/scottish-independence-bill/consult_view

    ‘Scottish Independence Bill: a consultation on an interim constitution for Scotland’.

    “In Scotland, the people are sovereign…” might not be a highlight, being the spatialising of nationhood in full effect.

    In doing so the SNP seek to make routine/ naturalise processes of territorialisation, which by definition subsume and by implication replace all else > a dedicated geographical homeland, a political-geographical locus for new forms of social cohesion, mobilisation, and control…

    Ferguson & Gupta’s two principles key to state spatialization: perceptions/ principles of verticality and encompassment produced through routine bureaucratic practices that have long helped to legitimate and naturalise states’ authority over ‘the local’.

    (1) *verticality* (the state is ‘above’ society) – refers to the central and pervasive idea of the state as an institution somehow ‘above’ civil society, community, and family [in the Prezi linked below they also problematise the ‘in-between’ status of ‘civil society’]
    (2) *encompassment* (the state “encompasses” its localities) “…the state (conceptually fused with the nation) is located within an ever widening series of circles that begins with family and local community and ends with the system of nation-states. This is a profoundly consequential understanding of scale, one in which the locality is encompassed by the region, the region by the nation-state, and the nation-state by the international community. These two metaphors work together to produce a taken-for-granted spatial and scalar image of a state that both sits above and contains its localities, regions, and communities.”

    “The point is not that this picture of the “up there” state is false (still less that there is no such thing as political hierarchy, generality of interest, etc.), but that it is constructed; the task is not to denounce a false ideology, but to draw attention to the social and imaginative processes through which state verticality is made effective and authoritative.
    Images of state vertical encompassment are influential not only because of their impact on how scholars, journalists, officials, activists, and citizens imagine and inhabit states, but because they come to be embedded in the routinized practices of state bureaucracies. The metaphors through which states are imagined are important, and scholarship in this area has recently made great strides. But the understanding of the social practices through which these images are made effective and are experienced is less developed. This relative inattention to state practices seems peculiar, because states in fact invest a good deal of effort in developing procedures and practices to ensure that they are imagined in some ways rather than others (Scott 1998). They seem to recognize that a host of mundane rituals and procedures [re Bilig] are required to animate and naturalize metaphors if states are to succeed in being imagined as both higher than, and encompassing of, society.”
    Ferguson, J. and A. Gupta. (2002) Spatializing States: Toward an Ethnography of Neoliberal Governmentality. American Ethnologist 29 (4): 981-1002.

  3. beyond the ‘spatialising of nationhood’, my initial concerns with the draft are :

    ** 19 International relations and foreign policy

    “respect” and “best” are poor definitions > how will ScotGov go about defining “Scotland’s values” [more territorialisation!] – in the same way as Iceland in 2010?
    Promoting ‘respect’ through Scotland ‘abiding’… “‘peoples” is seemingly now deterritorialised for others, though it could still be read as short-hand for ‘the people of x’ which throws up all sorts of international human rights questions over recognition and identity being conferred through (national-state) territorial belonging/status.

    ** 20 International organisations

    “whatever steps it considers appropriate” – sloppy carte blanche, somewhat curtailed in Section 21

    ** 21 Ratification Of International Agreements

    Does a Constitution also need to set out how to withdraw from “agreements which are already in force in Scotland prior to Independence Day, and which Scotland will inherit upon independence, in accordance with recognised international procedures” as well as “new treaties”?

    ** 23 Nuclear disarmament

    As “an explicit statement of Scotland’s intended destination”, does this do anything more than the existing non-proliferation treaty to which the UK is a signatory, “agreements which are already in force”? It would appear so: “The detailed process and timetable for removal of Trident would be a priority for negotiations, with a view to achieving removal within the first term of an independent Scottish Parliament.”
    “The Scottish Government would also propose, for the permanent constitution, a constitutional prohibition on nuclear weapons being based in Scotland.” – yet “being based” is weak and open to interpretation, e.g.if prohibition might only apply to ‘peacetime deployment’ (so easing Scotland’s entry to Nato) and might it be similar to Norway’s ‘anti-nuclear’ policy which includes a position where they do not ask if visiting ships are carrying nuclear weapons or Denmark’s which allows for it?
    ‘The Port Call Issue: Nordic Considerations’

    ** 28 Equality

    “equality of opportunity” “as opposed to the arbitrary, biased or irrational exercise of power” > what’s the rational purposefulness underpinning this: economic growth!?

    “equality of opportunity”, rather than equality of outcome, links with New Labour’s moralising and dutifully-efficient Communitarianism: Thirdway inclusion, citizenship and cohesion, wellbeing and happiness…
    Equality of opportunity or ‘network poverty’ = open competition for scarce resources; the limited resources needed to avoid social exclusion.
    It’s a minimal-opportunity defined in terms of the avoidance of social exclusion, rather than as a right to a minimum quality of life, and it only defends access to the possibility of such a minimum.
    The emphasis remains on economic growth instead of redistribution, retaining New Labour’s moralism and rejection of the structural causes of poverty, and so also retains a pathologising of the poor – which signals a continuing harsh standpoint on the provision of welfare, in which individuals must take more responsibility (risk). All of which is consistent with New Labour’s ‘individual stakeholding’ – a perspective on welfare and the role of the individual in society which emphasises equality of opportunity and inclusion rather than a more egalitarian redistribution of wealth or income in society.

    ** 29 Children’s wellbeing

    Sweet but is it’s stand-alone inclusion necessary as it’s already accounted for by “agreements which are already in force” including the United Nations Convention on the Rights of the Child : http://www.un.org/cyberschoolbus/humanrights/resources/child.asp
    But it does cement the Thirdway ideology of “wellbeing” into foundational legislation…

    ** 31 The environment

    The use of “entitlement” alongside the vagueness of “healthy” weakens this: “entitlement to live in a healthy environment” – again, it’s only access to the possibility of such an indeterminate minimum. And it’s unclear how local “the environment” is, and what obligations the state has beyond “must seek to promote” which is quite different from e.g. ‘must act in accordance with’

    ** 32 Natural resources

    This is a list of contradictions – “best” is subjective; “economic” appears prioritised over other “benefits” – moreover, given proposals elsewhere for a oil-based Sovereign Wealth Fund, why territorially limit this “common good” “to the people of Scotland” “and future generations” (a long-grass term) when this capital will be acting globally perhaps against their and others’ international interests?

    ** 33 Provision For A Permanent Constitution


  4. > possible ABSENCES from the draft that I can see is that it doesn’t address the state’s interior monopoly on ‘legitimate’ violence, so as to delimit state power. Nor does it explicitly address association/ assembly/ communication/ privacy in this context – they’re bundled up and treated as dealt with externally by inclsuion of ECHR legislation. It’s an overly positive/promotional view of state power.

    Whereas though Iceland’s overall framing of the draft constitution is equally bad – re ‘equality of opportunity’ and ‘state spatialisation’, and while recognising diverse origins, and “respect for the diversity of the life of the people”, in the translation it addresses culture in singular and which is again territorialised – the draft constitution further includes:

    “inviolacy of private life”
    “having and expressing opinions” : “The public authorities shall guarantee the conditions for an open and informed discourse.”
    Right to information : “All persons shall be free to collect and disseminate information. Public administration shall be transparent…”
    Freedom of the media : “The freedom of the media, their editorial independence and transparency of ownership shall be ensured by law.”
    Freedom of culture and academia
    Freedom of religion[including] the right to remain outside religious organisations.
    Right to association
    Freedom of enterprise
    Right of assembly
    Social rights […] an adequate standard of living and social security.
    Health services
    Right to residence and travel
    Deprivation of freedom
    Prohibition of inhumane treatment
    Prohibition of retroactive punishment
    Prohibition of compulsory military service

    ‘A Proposal for a new Constitution for the Republic of Iceland’
    Drafted by Stjórnlagaráð, a Constitutional Council, appointed by an Althingi resolution on March 24th 2011.

    These would seem to go further than just incorporating ECHR, given the violations that already exist under it, and it being subject to interpretation and review (erosion more likely than strengthening – e.g. TTIP) at a supra-national level.

    The question I asked Smári McCarthy was about how they avoided (or didn’t) constitutional political closure > the removal of large swathes of activity from spaces of everyday political contestation…?

  5. Pingback: My Increasing Ambivalence about Scottish Independence (September 10, 2014) | Terri-Stories

  6. Pingback: My Federalist Reservations about Scottish Independence (Continued) (September 14, 2014) | Terri-Stories

  7. Pingback: The Power of Place and Population: the House of Lords and the Modern State (November 2, 2014) | Terri-Stories

  8. Pingback: From Scotland to Cataluña: Specters of Continuing Ethnonational Unraveling (November 8, 2014) | Terri-Stories

  9. Pingback: Unsettling Ethnonationalism: Cataluña and a Fragmenting Europe (September 29, 2015) | Terri-Stories

  10. Pingback: The Blurriness of Nation, Federation, and State: Brexistential Threats (May 30, 2016) | Terri-Stories

  11. Pingback: The Possibility of Post-Brexit Ethnonational Fragmentation across Europe (part I; 03/29/17) | Terri-Stories

  12. Pingback: Thoughts during Spain’s Possible Fragmentation: Catalonia, Ethnonationalism, & Populist Anti-Globalism (October 1, 2017) | Terri-Stories

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s