Note: The following is a personal reflection on current events in the United Kingdom. The last few weeks have really pushed the limits to breaking point. Despite being told repeatedly about Brexit having to do with Parliamentary supremacy, we’re now told that MPs need to do what the Government says – unquestioningly. There’s room for a lot of legal analysis, particularly in the wake of the Cherry/Miller (No 2) by the UK Supreme Court. This, however, is a bit of a pressure valve exercise. Please forgive the laboured analogy. We will return you to your regularly scheduled legal rantings shortly.
We’ve all seen it before: somebody fancies themselves a magician after their grandparents pretended to be astounded by their tricks, but it turns out they’re not exactly David Copperfield. Half the audience can see fully how the trick is done, but the magician still thinks nobody knows where the rabbit came from. The other misdirected half? They keep telling the first half that magic is real.
As for the magician, it turns out everybody saw them loading the rabid rabbit into the hat. Most of the audience assumed the rest were paying attention to these shenanigans. They were wrong.
Turns out half the audience wanted to believe in magic, regardless how crap the magician was. They were willing to overlook the shoddy act, so long as it ended with a rabbit – but a fluffy, white, cotton-tailed rabbit. After all, the poster outside showed Boris the Magnificent holding a fluffy white bunny produced from a top hat. That’s what they came to see, and damn it, that’s what they’ve convinced themselves they’ve seen.
And yet, when it came to producing the proverbial ‘rabbit out the hat’, Boris the Magnificent turns out to be Boris the Maleficent, minus the magical powers. In the traditional British parlance, the review would read, “A bit crap.”
As for the rabbit? Brexit is the rabbit. Except this rabbit has rabies and is foaming at the mouth. Nothing like the rabbit on the poster. No, it turns out there never was the fluffy, white, cotton-tailed bunny. Instead, Boris enlisted his follicly-challenged pest of an assistant Dom the Destroyer of Democracies to source the rabbit – to wit ol’ Dom ran one down with a car. Mind you, Dom revived the rabbit in the ways that vampires do – a little bite to bring it back. Hence the grotesque visage of the hideous were-rabbit. Hence, also, the rabid nature of the beast.
We used to have real magic: people set aside their prejudice and fear, and committed to their society of openness, tolerance, and democracy under the rule of law. We accepted that while anything may be possible as an ends, not everything was acceptable as a means. For example, (threat of) violence was deemed unacceptable (and illegal). Now, a half-rate Igor-assistant type tells us “What do you expect?”
In the end, we should expect better of our fellow citizens, and better of ourselves. Whatever our collective future, we should not let the Machiavellian machinations of a fourth-rate Penn & Teller tribute act set their undead, rabid rabbit loose upon us all.
After all, didn’t they start out promising a fluffy, white, cotton-tailed bunny?
First off, it is hoped you are safe and healthy. If anything, one can no longer take these things as assumed when speaking with friends and family. This sentiment extends the same to you, dear reader. It was previously discussed that the mental stresses associated with a doctorate have a debilitating effect. That post spoke of the rejuvenating power of spending time with loved ones at home during the holidays. Of course, what could not have been anticipated was a global pandemic that would mandate a prolonged familial proximity. Now, spending time with your family 24/7 for 10+ weeks seems less of a healing experience and more of a relationship gauntlet testing your resolve and understanding. While I might have emerged from that gauntlet relatively unscathed, I know of many who have not been so lucky. Condolences.
“America is inherently a ‘white’ country: in character, in structure, in culture. Needless to say, black Americans create lives of their own. Yet as a people, they face boundaries and constructions set by the white majority. America’s version of apartheid, while lacking overt legal sanction, comes closest to the system even now overturned in the land of its invention.”
Two Nations (Scribner 1992) 4
Many of us (Canadians & Brits) like to point from the sidelines, attributing systemic failures as a uniquely American phenomenon. It is an unfortunate past time, one steeped in a sense of national moral superiority. It also may be a habit borne of self-preservation. As the saying goes, the thing you hate in other people often resembles that which you hate about yourself. As some Canadian and British folk are now realising, the killing of George Floyd could – and has – happened in our countries. There is nothing unique about the racism in America. (It also stands that there ought not to be anything American about racism, if it is to live up to it’s creed “that all men are created equal” found in the Declaration of Independence.)
A Shared Legacy of Discrimination
Racism didn’t start in America, nor will the outcome of current civil unrest ultimately ‘solve’ racism. It may help for some to consider the definition of racism:
Racism is the belief that a particular race is superior or inferior to another, that a person’s social and moral traits are predetermined by his or her inborn biological characteristics. Racial separatism is the belief, most of the time based on racism, that different races should remain segregated and apart from one another.
As racism is rooted in superiority of one race over another, institutional or systemic racism is the result of expressing racism through the planning and policies of social, economic, and political institutions. Insofar as a person being racist, it is typical to see overt expressions of that attitude in the statements and actions of that person. As for systemic racism, it is perhaps more insidious. There are no clear expressions of superiority, nor is there explicit discrimination readily identifiable in individual cases. Rather, identifying systemic racism requires fastidious oversight of a system, taking note of the difference of outcomes, especially where negative outcomes for a specific group appear disproportionately to that of their representation within the composition of groups in a society. Even then, it can be difficult to attribute the representative disproportionality as conclusive evidence without considering what socio-economic or political factors contribute to the discriminatory circumstances under which discriminated people find themselves.
Typically, those factors reflect wealth inequality, lack of employment opportunities, lack of access to public health services, political disenfranchisement, substandard access to comprehensive education, and last, but certainly not least on this list (other factors may also be identified) a criminal justice system that applies the law differently based on racial identity. This last factor is where we find the current protests demanding action – as noted here, demand for equality not revenge.
It is important to understand that the legitimacy of ‘the rule of law’ in democracy is ultimately predicated upon the equality of all subject to the law. But equal protection under the law is more than aspirational – it must be measurable and adhered to if a society is to be regarded as equal. What was objectionable about the killing of George Floyd (for me) had nothing to do with the principle that laws should not be broken. It has been reported that the reason for the 911 call was the accusation he used a counterfeit $20 bill. Whether he did or didn’t has absolutely nothing to do with why his death has sparked mass protests. It has everything to do with the unequal and tragically predictable outcome of the interaction between black citizens – more so African American males – and law enforcement.
The role of police officers in any State (country) is one that represents the monopoly of violence that is afforded to the State. They are typically the first contact point between citizens and the criminal justice system, whether they are a complainant, witness, or the accused. They are responsible for evidence gathering to be used in support of charges laid against individuals. They are meant to be impartial and dispassionate in the discharge of their duties. (This is not the same as saying they must lack empathy or compassion to those in distress.) It is imperative that those charged with keeping the public safety ensure they keep faith with that very same public.
Is the concept of ‘white privilege’ itself racist?
Before diving into this, dear reader, the answer is no.
‘Privilege’ by definition is “a special right, advantage, or immunity granted or available only to a particular person or group”. Its usage in sociological terms over the recent past has focussed on the group aspect – where one group benefits from perceived advantages or immunities over other groups in a given society. ‘White privilege’ by comparison considers systemic challenges faced by these other groups that are not necessarily to be found amongst their fellow caucasian citizens, resulting in disproportionate hardships on a group level.
What can be troublesome for some is twofold: (1) the term suggests that all white citizens are ‘handed’ everything without merit; and (2) the group aspect is difficult to conceptualise by an individual in their personal experience. These issues can manifest in radicalisation and violent objection to any efforts that seek to redress systemic racism and institutional bias towards other groups. We see this in news coverage of protests – the pitting of protesters and ‘counter-protesters’. (It seems rather an unfortunate dichotomy given that each may perceive their opposite as ‘countering’ their efforts when in reality both are protesters simpliciter.)
The reality here is that ‘white privilege’ is typically a blunt linguistic brush that fails to reflect a shared commonality with regards to economic, educational, and social hardships. However, in the present instance of systemic racism within the criminal justice system in certain countries, these shared hardships are inconsequential compared to the racial component of any citizen’s identity. As noted above, black and ethnic minorities face disproportionately higher risk of fatality when encountering law enforcement. This is alongside disproportionate representation when examining the likelihood of being charged, being denied bail, convictions for first offences, and lengths of custodial sentences. These disadvantages are not imagined, nor are they the fault of every person who may be considered to possess ‘privilege’. But simply because one does not feel ‘privileged’ does not mean that systemic racism does not exist. It would seem that rather than explaining the concept, many are content to throw the term ‘white privilege’ at others as a rhetorical epithet, driving some to feel personally responsible for actions they themselves would never commit.
That said, it is not a further burden on those seeking to enjoy equal treatment and protection under the law in society to delay their movement due to the misunderstandings or confusion of others. In some instances, that confusion is a product of the absence of knowledge that privilege exists, and that privilege favours those who historically have wielded power (often violently) over other groups. No, if this is the moment when the disenfranchised and discriminated finally have their voice heard, it is the responsibility of the rest of us to educate ourselves rapidly and find our common humanity with them. In my understanding, this is what is meant by using one’s ‘privilege’ positively.
Keep Hope Alive
The scale of the BLM protests in the wake of the extrajudicial killing of George Floyd has been breathtaking. Rather than remaining a local, state, or national reaction, the entire world has felt the immediacy of this matter on their own front doors. I would venture to say without suggesting a point of celebration, the coincidence between this and the global pandemic from SARS-CoV-2/Covid-19 is serendipitous. Whereas many may have supported the cause but otherwise been unable to show up due to a variety of reasons, the perpetual limbo of lockdown conditions has offered a moment of alliance. The social limbo we all presently share has meant we all have our attention drawn to this moment of change. The global reach and impact is unlike any other in my lifetime.
But such is precipice of hope – seeing the opportunity for a giant step towards equal justice, tempered by the chasm below of past experience. It is not to say that which has come before was in vain. It is the human condition however to remember that expectations often exceed outcomes. Are we in the midst of a rare moment where we can reverse this – might the outcome exceed our expectations?
I leave you with this, dear reader.
We must accept finite disappointment, but never lose infinite hope.
Martin Luther King, Jr., In My Own Words (Hodder & Stoughton 2002)
Over the last few years – from before I started my PhD through this holiday season – I have noted a peculiar similarity amongst my fellow researchers: declining states of mind. (This is not new: read here.) Whether working through the season instead of seeing family and loved ones, or going home and constantly feeling that the time spent with family comes at the expense of academic achievement, the choice – whatever it may be – orbits around a mentality that PhD research demands singular focus and commitment, damn the consequences.
This year has been difficult for me, personally and professionally. I am a very social individual, and the entire PhD process has put such proclivities beyond reach. My daily routine consists of waking up by 7:45am, getting a couple cups of coffee in me, then saddling up at the desk until my partner returns from work (usually between 8-10pm). When I’m not at my desk, I’m typically lost in thought about what I should have written (as opposed to what I have written) or I’m thinking about what I will write the next day. I find myself obsessed with reading others’ work in my field, worried sick that another academic has sought to research the same topic and has made a better argument than my own. The only saving grace is that my niche of the international legal world is not as vast as others. Decision paralysis is a familiar theme: do I take an intellectual left or right? How will this relate back to the overarching subject matter? Will this be the straw that breaks this camel’s back when it comes time for the viva defence at the end of the PhD?
A couple of months ago, have found myself mired in a rut and flirting with a spiralling dalliance with depression, my partner suggested we go to my family for Christmas and New Year’s. With both of us being from nordic countries, the prospect of a white Christmas in Canada was already tantalizing on its face, the ability to reconnect with those responsible for making me who I am doubly so. (Now you know who to blame!)
I had underestimated the effect this trip was to have on me. From the moment we stepped out of the airport into the -30°C Toronto winter air, a switch went off inside me. I was… home?! But it was pulling into my mother’s drive when it hit me full force what had I given up for the PhD.
The process can be dehumanizing. Nothing else matters other than the words you write. Your personality? Inconsequential. Your personal life? Unnoteworthy. The fights you have with friends and family over why you’d rather be at the books than spending time with them? That’s a ‘you’ problem, not a ‘PhD’ problem. And so it goes, slowly you drift away into your own mind, neglecting those that actually care that you exist in exchange for subjecting yourself to external criticism that comes a distant second to incessant self-critique and diminishing self-worth.
What started as a planned project that was to be simply achieved by sticking to deadlines has transmogrified into a supermassive black hole of unanswered questions and spontaneous bouts of irrational intellectual inadequacy. Considering that the general civilian population tends to hold the opinion that academics are self-righteous and overly confident, I can only suggest a day in my head will disabuse them of that position. I have a pathological fear that my work is not just wrong, but very, very wrong, despite it being based on evidentiary research.
I was self-confident before my PhD. I miss those days. As the famous paraphrasing of Socrates goes, ‘All I know is that I know nothing.’ (The actual saying goes “What I do not know I do not think I know either.” Plato, Apology 21d) Even those things I think I know, I constant revisit the question whether I really do know them, or only think I know them.
This self-imposed psychodrama does wonders for crushing one’s spirit. I shudder to think of those that may not have been as insufferably pompous as I was at the outset. But this brings me back to the holidays.
Entering into my mother’s house – what can best be described as Santa’s workshop – I was able to let slip briefly the intellectual tailspin and remember what it was like before the PhD. In other words, what it means to be human and not some festering boil of obscure legal jurisprudence. What makes me interesting to friends and family I’ve seen is much more three dimensional than the written word. I had forgotten the value of such things.
I am a PhD researcher doing work in the field of my choice. I have been able to take this momentary vacation to rejuvenate my mind. I am looking forward to getting back at my work when I return to Britain. (It may be the only thing I’m looking forward to in Britain, but that’s another post for another time.) I have taken a step back, to take two steps forward.
In my book, that’s progress. I wish the same for my fellow researchers, whether you went home or not. But take time to remember you are human beings. You are more than your work, and you always will be. This is just another chapter in our lives, with ones before it, and definitely more to follow.
Merry Christmas, Happy Holidays, and Happy New Year’s to you all.
P.S. My thanks in particular go to my PhD supervisors. They have both been extremely supportive – more than I deserve. It was also been a privilege to be able to teach at universities during my research. The combination of these factors is never far from my mind. I look forward to redoubling my efforts and engaging with you both in the New Year.
Following the judgment in Cherry/Miller (No 2), there are a number of takeaways from the text that ought to enter into the public discourse. Noted for her use of plain language, Lady Hale, President of the UK Supreme Court, took the opportunity to restate some of the basic tenets of Constitutional Law in the United Kingdom.
The following is Paragraph 39 which highlights our democracy as representative, and how the executive, legislative, and judicial branches interact with each other under the principle of Parliamentary supremacy (sovereignty) that has existed since the middle of the 17th century.
This is the first in the “Law in 60 Seconds” series of videos I’m going to make.
Today is the centenary of the end of World War One. Across the globe, people gather to remember the sacrifices of our forebears and to give pause that the reality of armed conflict is more terrifying than one can imagine.
It is a poignant moment to remember the cost of war, the cost of political failures. It is said that ‘time heals all wounds’ – the imagery of remembrance this year suggests the same. In that moment, we should also consider the optimism with which some viewed that war: the War to End All Wars. Little could they have realised that in twenty years’ time, another conflict would eclipse the world yet again. But for that moment in 1918, on the eleventh hour, of the eleventh day, of the eleventh month, hope was given sunlight once more.
There have been dramatic developments aimed at preventing wars since the Armistice. Agreements and treaties amongst States have sought to limit the types of weapons and conduct deemed to be acceptable in armed conflicts. Similarly, protection of civilians and standards of treatment of prisoners of war have become virtually universal in international conflicts. We have seen the longest period of relative peace in human history, but even in that peace have we seen regional conflicts and atrocities committed inside States. Today, we face conflicts on almost every continent, albeit mostly internal civil wars. We can simply look at the headlines and see how divided we still remain a century after that War.
This remembrance day, a century after the guns fell silent, I am considerate of the fragile stability we have accomplished, a stability that we owe as a duty to the fallen. And yet, it is with unease that I recognise familiar spectres emerging once again to flirt with the disastrous ideologies that brought about the worst in humanity. This does not mean war is inevitable. But if we do not recognise the potential for calamity, we take the risk of failing once again.
The annual ritual of remembrance is never as important as the act of remembrance on a daily basis, to learn from our past and safeguard our future.
Author’s note: The format for this blog is changing. It will contain personal thoughts and considerations around the research I am conducting as part of my PhD into self-determination & secession (independence) from peaceful, democratic states. I will include links where possible to open-source documents that highlight the issues raised. However, the content here is to be considered as ‘op-ed’, that is commentary by the author based on his opinion and not to be considered ‘peer-reviewed’ material. Please bear this in mind while reading and commenting.
The appeal of a referendum in democratic states is self-evident. The average citizen of a democratic state thinks of their political system as existing to serve their interests as a collective, and for their representatives to heed the instructions of the population when deciding on policy. A referendum on a specific policy, on its face, presents an opportunity for the population to unambiguously and directly instruct politicians as to the wishes of population on that given subject.
However, when one considers both the content and process of conducting a referendum, certain obstacles arise that make the certainty associated with the outcome troublesome. There are many reasons for this, but I will focus on three main points:
Referendum outcomes are typically misrepresented by politicians as evidence of a consensus amongst all participants in the exercise, essentially leading to political positions that only represent the majority of those that voted in the referendum.
The real world rarely comes down to yes or no. Although the ballot may contain a straightforward question with (typically) two possible responses, the reality of a given policy position may not lend itself to such a neatly bifurcated solution.
If the voter in a referendum lacks access to evidence-based, verifiable facts about the implications of the potential outcomes, it fundamentally undermines the legitimacy of those outcomes to be put into practice.
The Illusion of Consensus
It must first be acknowledged that no public vote is ever going to result in 100% of the population voting a particular way. In political elections, we are rightfully skeptical when any politician secures higher than 80% of the vote. In referendums, it is even rarer to see such ubiquity amongst the franchise.
There are exceptions: In March 2013, a referendum was held regarding the Falkland Islands where the people of that territory were asked if they wished to remain an Overseas Territory of the United Kingdom. The turnout was 91.94% of the eligible population, and the result was 99.8% in favour of retaining this political status, with only 3 votes against. International observers from six other countries certified the referendum as “free and fair, reflecting the democratic will of eligible Falkland Island voters“. (emphasis added)
However, most referendum results are less decisive, often ranging between as much as a 30% gap to as little as 0.1%. There are a myriad of factors that contribute to this, not the least of which is the content of the question itself. After all, if public consensus was so clear, there would not be a reason to hold a referendum in the first place. As such, most referendums expose political divisions amongst the population of a country, and they result in change that a constitutionally significant number of citizens rejected.
This wouldn’t typically be an issue if normal political means were employed in bringing about change. Here in the UK, legislation is subject to multiple levels of scrutiny and analysis, and often compromises are made in order to generate support for any given policy. In a referendum, by contrast, the outcome is presented as a concrete ‘mandate’ for a specific policy, and the concept of reaching a compromise to unify the electorate has become increasingly anathema to ‘respecting the will of the people’, even if it really means ‘the will of slightly more people on one side than the other’.
This conundrum is compounded when you take into consideration voter turnout. Taking the UK’s 2016 EU referendum as an example:
voter turnout was 72.21% – or in terms of people voting, 33.577 million out of a potential 46.5 million;
The outcome of the vote was 51.89% voting to leave the EU (a total of 17.41 million votes), and 48.11% voting remain (16.14 million votes); and
The UK has a population of 66.685 million people.
At first glance, the outcome of 51.89% is sufficient to say that ‘more voted to leave than remain’. However, in contrast to the amount of eligible voters, that 51.89% becomes 37.44% – or just 1/3 of those that were allowed to vote. Against the entire population – or put another way, against the total number of people that will be affected by the outcome – 51.89% drops even further to 26.1%. When considering whether democracy equates with a true understanding of the ‘will of the people’, the perception of that legitimacy is subject to debate.
It is a dirty secret of democracy that it only works if its citizens participate. It cannot be denied the importance of the electorate doing their civic duty by attending a polling station on the day of a vote, and equally that democratic systems can only rely on those that make their voices heard when called to do so. However, presenting the outcome of an election or referendum as the consensus of the people to pursue a given policy is to overlook the entirety of the population governed. This may appear to be a numbers game, but it should be remembered that each of those numbers are equal citizens in a democracy. Imposing an unforgivingly harsh policy that ultimately commanded support from a minority and representing it as a ‘clear majority’ is in itself damaging to the unity of a state.
The Façade of ‘Yes’ or ‘No’
Rarely, if ever, are most of life’s decisions as simple as a ‘yes’ or ‘no’.
This is even more so when considering potentially controversial policy decisions. Yet, when putting a referendum question to the people, the challenge is presenting these complexities in a manner that lends itself to choosing between two options. Referendums are only of utility when there is a ‘clear’ result – that is, one option is preferred over the other. Typically, this is achieved by carefully crafting the question as to ensure that it communicates clearly the subject at hand, and that the response clearly indicates a policy direction.
However, regardless of how ingenius the crafting of the question, it is inevitable that a ballot question will lack the ability to present the full scope of the choices on offer without the question becoming cumbersome and difficult for voters to understand. By way of an example, the question on the ballot for Québec sovereignty in 1980 read:
The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad — in other words, sovereignty — and at the same time to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will only be implemented with popular approval through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?
« Le Gouvernement du Québec a fait connaître sa proposition d’en arriver, avec le reste du Canada, à une nouvelle entente fondée sur le principe de l’égalité des peuples ; cette entente permettrait au Québec d’acquérir le pouvoir exclusif de faire ses lois, de percevoir ses impôts et d’établir ses relations extérieures, ce qui est la souveraineté, et, en même temps, de maintenir avec le Canada une association économique comportant l’utilisation de la même monnaie ; aucun changement de statut politique résultant de ces négociations ne sera réalisé sans l’accord de la population lors d’un autre référendum ; en conséquence, accordez-vous au Gouvernement du Québec le mandat de négocier l’entente proposée entre le Québec et le Canada ? »
This question ran 106 words long (113 in French), and included a number of proposals that would have been subject to extensive negotiations with the Canadian Government only after the referendum had been decided. The manner in which it was presented to the people of Québec was open to being misinterpreted as fait accompli, requiring only a yes vote to implement this agreement. The complicated and confusing nature of the question certainly contributed to a ‘No’ vote (59.56% No / 40.44% Yes, 85.61% turnout of 4,367,584 eligible voters). The subsequent 1995 independence referendum reflected this by reducing its content to a relatively sveldt 41 words (35 in French):
Do you agree that Quebec should become sovereign, after having made a formal offer to Canada for a new economic and political partnership, within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995?
« Acceptez-vous que le Québec devienne souverain, après avoir offert formellement au Canada un nouveau partenariat économique et politique, dans le cadre du projet de loi sur l’avenir du Québec et de l’entente signée le 12 juin 1995? »
It should be noted that the “agreement signed on June 12, 1995” wrongfully suggested that some partnership had been agreed between Québec and Canada prior to the referendum. No such agreement existed. Despite this glaring misrepresentation, the result of the 1995 referendum was a ‘No’ vote (50.58% No / 49.42% Yes, 93.52% turnout of 5,087,009 eligible voters). The difference between Yes & No (54,288 votes) was less than the number of spoiled ballots (86,501).
In each ballot, the understanding was that a ‘Yes’ majority would provide a mandate to negotiate for the secession of Québec, but in no way guarantee the specific terms that were suggested in the verbiage of the question. It was also understood that a second referendum would likely be necessary once the actual terms of secession were negotiated as the mandate may not have supported all versions of secession.
What is clear is that ‘Yes’ or ‘No’ as a response could not legitimately convey nuanced support for the ultimate implementation of what would have been an irreversible action. Similarly, the 2014 Scottish independence referendum was presented as a choice of endorsing the SNP (Scottish National Party) terms of leaving the United Kingdom, terms which were entirely subject to negotiation and would almost have certainly changed substantially by the point of departure. The Scottish referendum did, however, manage to reduce their ballot question down to six words:
Should Scotland be an independent country?
The result: ‘No’ – 55.3% / ‘Yes’ 44.7%, 84.59% turnout of 4,283,392 eligible voters.
Though a question may be crafted to illicit a simple ‘yes’ or ‘no’, it does not mean that such a response is sufficient to endorse any one outcome beyond scrutiny. At best, a referendum may indicate the direction of travel for a given policy, whether the public would support further pursuits in any given endeavour. It has been suggested by multiple participants in multiple countries that any referendums that require negotiation with other governments (inter-governmental) or within the governmental structure of a single state (intra-governmental), a second referendum would be necessary to maintain legitimacy for a course of action given the degree of change that may occur during any negotiations. However, the suggestion that every person who votes for the ‘change’ option understands and is supporting an unambiguous, unquestionably-precise outcome is contrived. In any referendum for change, it is only the ‘status quo’ option that can command such a position – it is support for the way things already are, under the conditions that are already known.
In any event, it is a nice pretence to think that life breaks down into a series of ‘this or that’ decisions. In reality, however, there are usually multiple choices and many different factors that go into how we decide to express our desires.
The Need to be Informed for Consent to be Legitimate
There is an infamous response to a journalist in 2002 given by then-US Secretary of Defense Donald Rumsfeld that states:
…As we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns — the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.
Though said in a completely different context, Secretary Rumsfeld’s comments highlight the difficulties associated with policy-by-referendums – the unknown unknowns and the perils they entail. Although a referendum appears to empower citizens to have direct impact on policy, what impact that might be is altogether a different matter. In order for a supposed mandate from the people to have legitimacy, the subsequent governmental action needs to reflect the actual wishes of the people – not just a convenient interpretation.
As has been noted in the post-Brexit discourse in the UK, the departure from the EU is not as self-evident as has been made out by some on the Leave side of the conversation. During the woefully inadequate referendum campaign period, multiple groups were formed to advocate for the UK exiting the European Union, and each offered up their vision of what a post-Brexit UK-EU relationship would look like. These options ranged from a relatively close arrangement with the UK maintaining access to the single market and customs union, through to the so-called ‘hard Brexit’ of no relationship beyond trading on the World Trade Organization (WTO) standard tariff schedules. The consequences economically, politically, and socially for the multiplicity of potential outcomes varies significantly, and it should be remembered that at no point during the referendum was a ‘hard Brexit’ supported by any of the Leave advocate groups.
However, as the process of departure from the EU has unfolded (the ‘Article 50’ withdrawal agreement negotiations), the complications of leaving have become readily apparent. At present, the major deadlock arises over the UK maintaining its commitments under the Belfast (‘Good Friday’) peace agreement by guaranteeing an open border between Northern Ireland and the Republic of Ireland. (This is unsurprising given the original intent of the EU as a means of maintaining peace in Europe.) Furthermore, there are implications in over 80 different sectors of business in the UK that will have to make major changes to their operations in order to accommodate all possibilities that still remain on the table. A number of UK car manufacturers are either closing their operations temporarily or exploring relocating their facilities elsewhere in the EU to maintain frictionless production. There are pension considerations for UK citizens resident in other EU states, as well as questions over the status of non-UK EU citizens resident in the UK (legally) after departure. For all the countless days and weeks of campaigning during the pre-referendum period, only a fraction of the real implications were ever fully laid out. As such, it cannot be conceived of that these ‘unknown unknowns’ would have had a serious and consequential effects over peoples’ decision to vote for the UK to leave the EU.
A law podcaster, UK Law Weekly, put it succinctly recently regarding the need for informed consent, not mere consent (at 7m48s):
It’s hard to see how any consent can be real and voluntary if it is not informed consent. You might volunteer to help an old lady cross the road, but if I then told you the road was the M25 [motorway], you might think twice.
The same holds in relation to the consent (or ‘will’) of the people as to how they wish to be governed. If the people of Scotland had voted ‘Yes’ to the question “Should Scotland be an independent country?”, only to find out that its ‘independence’ entailed extreme isolationism in closing its borders to people and trade, many of the pro-independence supporters would likely denounce that course of action as contrary to their wishes as expressed in the referendum.
One may reply by saying that the referendum did not specify what independence meant, and therefore isolation was a possible interpretation of that outcome. That suggestion would, however, be unreasonable and completely at odds with the information and education of the public prior to the referendum. Equally unreasonable would be suggesting that the unforeseen or unknown circumstances arising after the referendum in no way could result in the public changing their mind – thinking twice – about their decision. (The best example of the public regularly changing its collective mind is general elections. Nobody suggests that holding an election every 4-5 years is a “gross betrayal of our democracy“.)
The idea of holding a subsequent referendum (not a ‘second referendum’) whereby the people – now in full command of the consequences and implications of known knowns, known unknowns, or otherwise – can confirm their support for the reality of their initial decision is very much in line with the form of democracy that is associated with the holding of referendums. If the people can be entrusted to make the initial decision to instruct a government to begin a process of change, then certainly that trust must extend to the ability to confirm their wishes have been followed, or to change course if the circumstances have changed.
Sometimes a referendum may be needed earlier: for example, to initiate intergovernmental negotiations. In such cases, the government initiating the referendum should set out precise plans for what will be done in the event of a vote for change; the enabling legislation would set out a two-referendum process, for use in the event that the settlement does not deliver what was promised.
This commission involved politicians and individuals of all variety, including some who advocated for Brexit as part of the official campaign.
It is understandable that in the event of a relatively weak or ‘fluke’ chance that a particular side of a referendum wins despite their expectations, the concept of having a subsequent poll to confirm support can appear to be an attempt to reverse the direction of the initial referendum. However, it is argued that the greater the implications of the outcome – particularly where it can have dire consequences in practice, or where the action may be perceived as irreversible (e.g., secession/independence) – the greater the need exists to ensure that the public remains engaged with developments and given the opportunity to ‘ratify’ the final destination. It should also serve as a cautionary tale to those that play fast and loose with facts and truth: if a follow-up referendum is involved on the final terms of any course of action, it is very likely that any misrepresentation or lies will become apparent and have the potential impact of turning a victory into an ignominious defeat.
So what you’re saying is…
In the end, what matters most is that those actions taken by any government subject to the outcome of a referendum critically require the continuity of legitimacy. It is not sufficient to simply shut down any notion of confirming those decisions with the very people that constitute the powers with which elected representatives are entrusted.
It is also advisable that prior to any drastic course of action (e.g., constitutional, independence, etc.), the government of the day should seek first to build a consensus amongst all citizens. They should not blatantly set the interests of one half of the electorate directly against the other half, that is if the government wishes to continue to be the government of that country rather than party nepotists. It divides societies, and it risks a fundamental chasm opening up between the unity of the citizens of any State.
Referendums typically involve controversial subjects that are potentially divisive. The absence of these risks would make a referendum pointless. Holding referendums also offers the most direct manner of deciding State policy to the citizens exercising their collective right of self-determination. The decision to hold a referendum should not be taken lightly, and the process and contingency planning should involve a clear set of agreed information being provided to those citizens going to vote. Only where there is a clear informed majority supporting a clearly explained outcome to a clear question can any government invest the finances, resources, and efforts in pursuing a legitimate action.
To paraphrase a piece of common sense advice: Measure twice, cut once.
Voters in Catalonia will go to the polls on December 21 in an election triggered by the recent crisis over the region’s declaration of independence from Spain.
If separatist parities succeed at the ballot box it’s likely they will claim this as a legitimate mandate for independence. But this is not a sound interpretation of the international law of self-determination – and the result of the election cannot be seen as a proxy for independence.
Both those for and against the region’s right to claim independence from Spain argue that their position is grounded in international law. The Catalan government, prior to being deposed on October 27, claimed that the international right of all peoples to self-determination afforded the region the “right to independence” and the international legitimacy of their expectations – an argument supported by some commentators.
But self-determination and “a right to independence” are not synonymous. International law supports independence as a legitimate outcome of self-determination only under limited circumstances. There are three circumstances:
The self-determining territory is under foreign colonial rule.
The territory is subject to gross violations of human rights and humanitarian atrocities committed by the state.
The territory is excluded from the political process of the state.
Given that Catalonia is not a colony, post-Franco Spain has not committed gross human rights violations in the region, and Catalonia enjoys political inclusion at every level of government in Spain, it fails to meet these three circumstances. That means international law does not support Catalonia’s claim of an international “right to independence” under the current circumstances.
Quebec and Scotland
In the bids for independence of Quebec and Scotland, domestic political negotiation resulted in the Canadian and UK governments authorising referenda to be held over independence in each place. Holding a referendum does not necessarily give a region the right to secede if voters opt for independence, rather it creates an obligation on the parent state to act in good faith. There is no “automatic” right to secede created.
A landmark 1998 ruling in Canada on the issue of Quebec’s secession is a useful reference point here. For any independence referendum to be effective, the Canadian Supreme Court stated that where there is a clear answer to a clear question with a clear majority, a government cannot ignore the result. However, the extent of that obligation is for the government to enter into good faith negotiations with the region on the terms of departure – and these negotiations may not mean necessarily lead to independence.
Prior to the Scottish independence referendum in 2014, the Scottish and UK governments agreed to legally respect its outcome, and the appropriate constitutional powers were transferred to Scotland. Both sides accepted as a matter of law the consequences attached to the result.
In Catalonia, the independence referendum on October 1 was held outside the powers of the Catalan parliament – a position confirmed by the Spanish Constitutional Court. This is not to say that it was rebellion or sedition to pursue a referendum, rather it was beyond the Catalan government’s legal powers to unilaterally enact its consequences. Therefore, the result – which was in favour of independence – was not recognised either domestically or internationally.
Beyond the ballot box
Self-determination in democratic states is normally fulfilled within the constitutional framework of an existing state. The failure of separatist political parties to achieve constitutional amendments or agreements is not a denial of this right. Except in the extreme circumstances outlined above, relying on self-determination to provide an “automatic right to independence” is a dangerous misrepresentation of international law that threatens those states which adhere to democratic principles.
The electoral success of separatist parties at the ballot box does not give a legitimate mandate for independence. If separatist parties do win on December 21, it will not give Catalonia the right to secede. At best, it will require Madrid to engage in good faith dialogue with Barcelona on potential constitutional change in Spain.
None of this foregoes the possibility of the emergence of an independent Catalonia. There may be several compelling political or social concerns for fulfilling self-determination rights of the Catalans that could be presented as part of negotiations with Madrid. But there cannot be an ultimatum from the Catalan separatists that independence must be on the table in future negotiations.
It is T-minus 81 days until liftoff on my PhD research. I received and accepted my offer to study this week (Tuesday), and I’m still getting it into my head that this is really happening. Don’t get me wrong, I’m very excited and quite eager to get going – in fact, I’m not waiting to begin reviewing the current literature as you will see later. However, as I’m very familiar with the mountain climb that is a PhD (given my friendship with many colleagues who have made the climb), there is a certain sense of awareness about the sheer volume of work required and the toll it will take on one’s life.
Part of the requirements of the programme are regular progress updates on how the research is going. As a result, it got me thinking back to the blog here and what purpose it might serve as I go forward. I have decided to use it as a tool to document and communicate the journey to anybody interested in pursuing a similar endeavour.
As for the subject of the PhD, I have proposed to focus on what I, in the preliminary, refer to as an evolutionary approach to understanding the function of self-determination. I will be examining the legal relationship between ‘peoples’ and the State, the concept of sovereignty and legitimate authority, and the exclusive legal personality of statehood to which some sub-state groups aspire. This is borne out of previous research I have done regarding the Québécois and Scottish independence referendums. I am seeking to test the validity of restrictions on the exercise of the right of self-determination insofar as it may affect the territorial integrity of a democratically-inclusive rights-adhering nation-state. As such, there may be some terminology issues from time to time, and I hope to offer some clarity where I can. At present, a number of recent events have also contributed to the international legal and political landscapes, in particular the recent advisory opinion by the International Court of Justice on Kosovo (referred to the Court by Serbia).
The format will be fairly simple: every title will reference the day of the PhD, and the content will reflect two themes. The first will be some observations based on the previous day(s)’s research – specifically on the topic of the PhD itself. This is for the legally-curious who are into the material. The second half will consist of what my partner refers to as ‘life admin’ – the human cost of the project, where my head is at, and how pursuing this doctorate is affecting my personal life. Each post will conclude with a reference to one or two articles/treaties/documents that I will be reading and reviewing in the next post, along with any benchmark events that are of interest.
So, the blog is shifting slightly towards what one might call a bit of a ‘vanity project’, albeit an important facet to the PhD experience overall. I welcome all questions, criticisms, comments, and concerns that you might leave for me in the (moderated) comments section below.
One last point: I will also audio record these posts allowing for a more accessible format should you wish to give your eyes a rest.
I’m going to keep this post brief. Along with millions of others, I tuned into the US Presidential debate in Las Vegas last night to see what would come of (borrowing from The Daily Show) Democalypse 2016’s showdown between a deep fried Cheeto versus the singularly most qualified American to run for office – with the exception of incumbent Presidents. It’s already clear which way I see this match-up, but that doesn’t necessarily mean I’m a happy lawyer this morning.
However, we’ve all focused so much on the personality of the candidates on both sides that we have forgotten what these debates really are: a glimpse into the next 4 years of geopolitics and international relations.
I am not an American. I have Americans in my immediate family who reside in the continental 48, and have great admiration for the idea of America and the American dream – both which are sadly faded like a Rolling Stones ball cap you refuse to offer up to the moth gods.
The US Presidential debates are a crucial platform that we here in the UK and elsewhere in the world, particularly in Russia, observe with great attention knowing that this is the 50/50 split options in foreign policy that will be affecting all of us in coming years. The only thing I can glean from the debate is what I already knew: Trump will repeat praise from any source, including a warmongering Kremlin, right up until somebody with better sense leans in and whispers to him “You are running for the US Presidency, not the Russian.”
Do you think Putin will be going to The Miss Universe Pageant in November in Moscow – if so, will he become my new best friend?
That’s not to say that I wouldn’t like better relations between NATO and Russia – though I fear war is coming, I absolutely would encourage the avoidance of such a conflict brimming with the possibility of a nuclear exchange. Trump mentioned that he thinks Putin has outplayed Hillary. He’s half-right. Putin’s long game is legendary, and he is currently exercising his realpolitik muscles to their fullest. However, the suggestion that Trump is a suitable adversary is laughable – Hillary may face a credible opposition from the Kremlin, but Trump is little more than slight speed bump at the office car park to Putin – the former KGB operative wouldn’t even think about Trump 5 seconds after he rolled over him in the geopolitical arena.
The economic discussions about global trade were also abysmal. All we heard was ‘Hillary is for TPP, Hillary is not for TPP’. Despite popular opposition based on hypothetical risks to special interests in the USA, greater trade relationships are applaudable. Sorry anti-globalisation folks, the liberalisation of markets around the world have been the largest single contributor to peace and security throughout the world.
Not saying it’s perfect – 70 million refugees and still eye-watering levels of poverty around the world suggest there’s still massive work to be done. But TPP, much like the TTIP agreement between the EU & America, actually increases value in these countries. We, in Europe (esp. UK) and the US are haemmoraging economic opportunities based on populist opposition informed by a YouTube video they watched after binge watching Homeland on Netflix. Say what you will of Donald Trump and his followers, we have our own skeletons in Europe that are coming around to air themselves as they may from time to time.
Will Hillary win on November 8? Yes, very very likely.
Am I confident that I have a clear understanding of the international and military policies that will impact globally for the next four years? No more than I was when this circus pitched its democratic tent. And for that reason, I’m concerned. There needs to be clarity, and hopefully (and despite destroying her Republican rival) she will continue to reach out with information to inform both the US electorate and the rest of the planet as we march inexorably towards the conclusion of this dark, dismal chapter in the tale of democracy. I’m not in a rush to test whether 2020 promises more of the same or worse…