¹ See Scottish Independence Referendum Act 2013, ASP 2013, c 14, online:<http://www.legislation.gov.uk/asp/2013/14/pdfs/asp_g0130014_en.pdf7> [Referendum Act].

² For an overview of a number of unsuccessful attempts at secession, see Crawford, James The Creation of States in International Law, 2nd edition (Oxford: Oxford University Press, 2006) at 403–14.Google Scholar

³ See Reference re Secession of Quebec, [1998] 2 SCR 217 at para 132 [Quebec case].

⁴ See Agreement between the United Kingdom Government and the Scottish Government on a Referendum on Independence for Scotland (15 October 2012), online:<http://www.scotland.gov.uk/ About/Government/concordats/Referendum-on-independence> [UK-Scotland Agreement]. See also Tierney, S “Legal Issues Surrounding the Referendum on Independence for Scotland” (2013) 9 Eur Constitutional L Rev 359 at 362,CrossRefGoogle Scholar affirming that the UK-Scotland Agreement “contrasts sharply with so many States where the issue of secessionist or sovereignist referendums has been the source of such deep and protracted disagreement.”

⁵ See Lecours, A and Kerr, S “Towards the Scottish Referendum” (2012) 3 Federal News 3,Google Scholar online:<http://ideefederale.ca/documents/Dec_2012_ang.pdf>, arguing that the UK government was willing to accept this relatively low threshold because opinion polls consistently show that even it would not be met. Referendum Act, supra note 1.

⁶ See “Panel Base Survey,” Sunday Times (29 July 2013), online: Sunday Times <http://www.panelbase.com/news/TheSundayTimesScottishPollTables290713.pdf>.

⁷ See “David Cameron Promises in/out Referendum on EU,” BBC News (23 January 2013), online: BBC News <http://www.bbc.co.uk/news/uk-politics-21148282>.

⁸ See text accompanying notes 109–13 later in this article.

⁹ See Crawford, James and Boyle, Alan Opinion: Referendum on the Independence of Scotland – International Law Aspects (2013),Google Scholar part V, online:<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/79408/Annex_ A.pdf>.

¹⁰ Compare Clarity Act, SC 2000, c 26, s 1(3), online: <http://laws-lois.justice.gc.ca/ eng/acts/C-31.8/FullText.html>.

¹¹ See text accompanying notes 112–13 later in this article.

¹² Crawford and Boyle, supra note 9 at paras 176–80.

¹³ Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221, ETS No 5 (in force 3 September 1953) [ECHR].

¹⁴ Western Sahara, Advisory Opinion, [1975] ICJ Rep 12 at para 55 [Western Sahara].

¹⁵ Brady, H and Kaplan, C “Eastern Europe and the Former Soviet Union” in Butler, D and Ranney, A eds, Referendums around the World: The Growing Use of Direct Democracy (Washington, DC: AEI Press, 1994) 174 at 175.CrossRefGoogle Scholar

¹⁶ Miller, R “Self-Determination in International Law and the Demise of Democracy” (2003) 41 Colum J Transnat’l L 601 at 612.Google Scholar See also Beigbeder, Y International Monitoring of Plebiscites, Referenda and National Elections: Self-Determination and Transition to Democracy (Dordrecht: Martinus Nijhoff, 1994) at 91.Google Scholar

¹⁷ Crawford, supra note 2 at 402.

¹⁸ See Vidmar, Jure Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice (Oxford: Hart, 2013) at 190, 196.Google Scholar

¹⁹ Western Sahara, supra note 14 at para 55.

²⁰ Ibid.

²¹ Vidmar, supra note 18 at 190.

²² Ibid.

²³ Quebec case, supra note 3 at para 132.

²⁴ Crawford, supra note 2 at 403–14.

²⁵ Quebec case, supra note 3 at para 87.

²⁶ Ibid at para 91.

²⁷ Ibid

²⁸ Crawford, supra note 2 at 561.

²⁹ See Assembly of the Republic of Montenegro, Skupstina Republike Crne Gore (24 May 2006), online: <http://www.skupstina.me/index.php?strana=fiksna&id=401>.

³⁰ See South Sudan Referendum Commission, Results for the Referendum of Southern Sudan (2011), online: <http://southernsudan2011.com>.

³¹ Quebec case, supra note 3 at para 87.

³² Clarity Act, supra note 10 at ss 1–2.

³³ Ibid at s 2(2).

³⁴ Cited in Brady and Kaplan, supra note 15 at 187.

³⁵ Ibid at 188.

³⁶ Ibid.

³⁷ See further Ziemele, I State Continuity and Nationality: The Baltic States and Russia: Past Present and Future as Defined by International Law (Leiden: Martinus Nijhoff, 2005) at 27–29 (Estonia), 32–34 (Latvia), 38-40 (Lithuania).Google Scholar

³⁸ Brady and Kaplan, supra note 15 at 193.

³⁹ Independence, along with the question on foreign and domestic policies, was supported by 97.4 percent of those who voted, with a turnout of 94.1 percent. Ibid.

⁴⁰ With a participation rate of 84.18 percent, 90.32 of votes cast were in favour of independence. This means that 76.03 percent of all those eligible to vote supported an independent Ukraine. See Electoral Geography: Ukraine, online: <http://www.electoralgeography.com/new/en/countries/u/ukraine/ukraine -independence-referendum1991.html>.

⁴¹ See Agreement on the Establishment of the Commonwealth of Independent States, 31 ILM 138 (1992). See also Protocol to the Agreement Establishing the Commonwealth of Independent States signed at Minsk on 8 December by the Republic of Belarus, the Russian Federation and Ukraine, 31 ILM 147 (1992).

⁴² The independence of Azerbaijan was confirmed by 99.6 percent of those who voted, with a turnout of 95.3 percent of all those eligible to vote. Brady and Kaplan, supra note 15 at 193. The independence of Uzbekistan was confirmed by 98.2 percent of those who voted, with a turnout of 94 percent of all those eligible to vote (ibid).

⁴³ The independence of Uzbekistan was confirmed by 98.2 percent of those who voted, with a turnout of 94 percent of all those eligible to vote. Ibid.

⁴⁴ In Kazakhstan, the turnout was 88.2 percent, while 94.1 percent of valid votes responded affirmatively to the question asked (which implied independence). Ibid at 190–91. In Kirghizia, the turnout was 92.9 percent and the question was answered affirmatively by 94.6 percent of those who cast their votes (ibid). In Uzbekistan, the turnout was 95.4 percent and the question was answered affirmatively by 93.7 percent of those who cast their votes (ibid at 193). Unlike Kazakhstan and Kirghizia, Uzbekistan also held a special referendum on independence, which took place after the Soviet Union had already been transformed into the Commonwealth of Independent States.

⁴⁵ The answer to the original question of the all – European Union (EU) referendum was affirmative by 71.3 percent of those who cast their votes, with a turnout of 75.4 percent of registered voters. Ibid. The question on popular election of the Russian president was supported by 69.9 percent of those who cast their votes (ibid at 194).

⁴⁶ Ibid at 193.

⁴⁷ See Terrett, further S The Dissolution of Yugoslavia and the Badinter Arbitration Commission: A Contextual Study of Peace-Making Efforts in the Post-Cold War World (Aldershot, UK: Ashgate, 2000) at 31.Google Scholar

⁴⁸ Arbitration Commission of the Conference on Yugoslavia (Badinter Commission), Opinion 4, (1992) 31 ILM 501 (11 January 1992) at para 3.

⁴⁹ Constitution of the Republic of Croatia (1990), art 87(2), online: <http://narodne-novine.nn.hr/clanci/sluzbeni/232289.html> [author’s own translation].

⁵⁰ See Andrija Hebrang, A Short Summary of Croatian History, online: <http://www.andrija-hebrang.com/povijest.htm#nastanak> [in Croatian].

⁵¹ Act on Referenda of the Socialist Republic of Bosnia-Herzegovina, Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No 29/77 (1977) [on file with author].

⁵² See National Congress of the Republic of Bosnia-Herzegovina, Referendum o nezavisnosti Bosne i Hercegovine [Referendum on Independence of Bosnia-Herzegovina] (1992), online: <http://republic-bosnia-herzegovina.com/?p=306>.

⁵³ Plebiscite on the Sovereignty and Independence of the Republic of Slovenia, Official Gazette of the Republic of Slovenia, No 44-2102/1990 (2 December 1990), art 3 [on file with author] [Slovenian Plebiscite].

⁵⁴ Clarity Act, supra note 10, s 2(2).

⁵⁵ See Government of the Republic of Slovenia, Od plebiscita do samostojnosti [From the Plebiscite to Independence], online: <http://www.ukom.gov.si/10let/pot/ kronologija>.

⁵⁶ See Constitution of the State Union of Serbia and Montenegro (2003), online: <http://www.arhiva.srbija.gov.rs/vesti/2003-02/05/333116.html>, art 60.

⁵⁷ See Vukovic, Dragoljub Crnogorsko javno mnjenje uoci referenduma (23 December 2000),Google Scholar online: <http://www.aimpress.ch/dyn/pubs/archive/data/200012/01223 -005-pubs-pod.htm>.

⁵⁸ International Crisis Group, Briefing No 169: Montenegro’s Independence Drive (7 December 2006), online: <http://www.crisisgroup.org/en/regions/europe/ balkans/montenegro/169-montenegros-independence-drive.aspx> at 1.

⁵⁹ Ibid.

⁶⁰ Act on Referendum on State-Legal Status of the Republic of Montenegro, Official Gazette of the Republic of Montenegro, No 12/06 (2 March 2006).

⁶¹ Ibid, art 6.

⁶² International Crisis Group, supra note 58 at 2.

⁶³ Assembly of the Republic of Montenegro, supra note 29.

⁶⁴ International Crisis Group, Briefing No 42: Montenegro’s Referendum (30 May 2006), online: <http://www.crisisgroup.org/en/regions/europe/balkans/monte-negro/b042-montenegros-referendum.aspx> at 6.

⁶⁵ Ibid.

⁶⁶ Compare Slovenian Plebiscite, supra note 53.

⁶⁷ South Sudan Referendum Commission, supra note 30.

⁶⁸ See Comprehensive Peace Agreement (2005), online: United Nations <http://unmis. unmissions.org/Portals/UNMIS/Documents/General/cpa-en.pdf>. See also Southern Sudan Referendum Act 2009, online: United Nations <http://unmis. unmissions.org/Portals/UNMIS/Referendum/SS%20Referendum%20MOJ -Englis.pdf>.

⁶⁹ Ibid, art 41.

⁷⁰ South Sudan Referendum Commission, supra note 30.

⁷¹ Agreement between the Republic of Indonesia and the Portuguese Republic on the Question of East Timor, UN Doc S/1999/513 (5 May 1999), arts 1–6 [1999 Agreement].

⁷² Security Council Resolution 1246, UN Doc S/RES/1246 (11 June 1999) at para 1.

⁷³ 1999 Agreement, supra note 71, arts 1–6.

⁷⁴ Report of the Secretary General: The Question of East Timor, UN Doc A/53/951 (5 May 1999) at para 2.

⁷⁵ Ibid.

⁷⁶ Crawford, supra note 2 at 561.

⁷⁷ Ibid at 402.

⁷⁸ Ibid.

⁷⁹ See, for example, “The 1979 Referendums,” BBC News (30 September 1979), online: BBC News <http://www.bbc.co.uk/ news/special/politics97/devolution/ scotland/briefing/79referendums.shtml>. See further, for example, Balsom, D “The Scottish and Welsh Devolution Referenda of 1979: Constitutional Change and Popular Choice” (1972) 32 Parliamentary Affairs 394.CrossRefGoogle Scholar

⁸⁰ Lecours and Kerr, supra note 5 at 4.

⁸¹ “Panel Base Survey,” supra note 6.

⁸² Crawford, supra note 2 at 402.

⁸³ Assembly of the Republic of Montenegro, supra note 29.

⁸⁴ Compare Quebec case, supra note 3 at para 87.

⁸⁵ Ibid.

⁸⁶ See ibid at para 126 for an analogy with the so-called “remedial secession” doctrine. The court reasoned: “The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal self-determination — a people’s pursuit of its political, economic, social and cultural development within a framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances.”

⁸⁷ Ibid.

⁸⁸ “The 1979 Referendums,” supra note 79.

⁸⁹ European Commission for Democracy through Law (Venice Commission), Resolution 235 (30 May 2007), online: <https://wcd.coe.int/ViewDoc.jsp?id= 1133019> at para 50.

⁹⁰ Ibid at para 51.

⁹¹ Ibid at para 52.

⁹² The view of the Venice Commission needs to be taken with some caution. The recommendation refers to referenda as an instrument of direct democracy in general, not to independence referenda in particular. It is questionable whether general referenda rules can readily be transplanted to consultations on the legal status of territory. Most independence referenda do impose a minimum threshold, albeit usually in terms of the required turnout. Independence referenda often take place in circumstances of conflict and ethnic tensions and a path to independence with a very narrow relative majority may indeed be problematic. As argued earlier, in the case of Montenegro, imposing a minimum turnout threshold and raising the required majority in fact added to the legitimacy of the vote rather than undermined it. The Venice Commission’s recommendation, therefore, should not be applied across the board to all referenda. The standard may be reasonable in Scotland but is not automatically applicable worldwide.

⁹³ Quebec case, supra note 3 at para 87.

⁹⁴ Ibid.

⁹⁵ Clarity Act, supra note 10, s 1(4).

⁹⁶ In 1980, the referendum question read: “The Government of Québec 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 Québec to acquire the exclusive power to make its laws, administer 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 be submitted to the people through a referendum; on these terms, do you agree to give the Government of Québec the mandate to negotiate the proposed agreement between Québec and Canada?” And in 1995: “Do you agree that Québec 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 Québec and of the agreement signed on 12 June 1995?” reprinted in Dumberry, P “Lessons Learned from the Quebec Secession Reference before the Supreme Court of Canada” in Kohen, M ed, Secession: International Law Perspectives (Cambridge: Cambridge University Press, 2006) 416 at 418, 420.Google Scholar

⁹⁷ Western Sahara, supra note 14 at para 55.

⁹⁸ The Croatian referendum questions read: “1. Do you agree that the Republic of Croatia, as a sovereign and independent state which guarantees the cultural autonomy and all civil liberties of Serbs and members of other nationalities in Croatia, shall enter into an association of sovereign states together with other republics (according to the suggestion of the Republic of Croatia and the Republic of Slovenia for solving the state crisis in the SFRY)? 2. Do you agree that the Republic of Croatia shall remain in Yugoslavia as a unitary federal state (according to the suggestion of the Republic of Serbia and the Socialist Republic of Montenegro for solving the state crisis in the SFRY)?” Decree on the Call for A Referendum on Independence of the Republic of Croatia, Official Gazette of the Republic of Croatia, No 21 (2 May 1991) [author’s own translation, on file with author]. And the Macedonian referenum questions: “Are you in favour of an independent Macedonia with a right to enter into a future association of sovereign states of Yugoslavia?”: “IeH IHTO BegHam CTaHa HCTopuja [Den shto vednash stana istorija]” online: <http://star.dnevnik.com.mk/default.aspx?pbroj=1349 &stID=2147477716> [author’s own translation].

⁹⁹ The Bosnian referendum question read: “Do you support sovereign and independent Bosnia-Herzegovina, a state of equal citizens, peoples of Bosnia-Herzegovina – Muslims, Serbs, Croats and people of other nationalities who live in Bosnia-Herzegovina?” Act on Referenda of the Socialist Republic of Bosnia-Herzegovina, Official Gazette of the Socialist Republic of Bosnia and Herzegovina, No 29/77 (1977) [author’s own translation, on file with author].

¹⁰⁰ The Lithuanian question read: “Are you for the independent and democratic state of Lithuania?” See Francis X Clines, “Lithuania Votes Overwhelmingly for Independence from Moscow,” New York Times (10 February 1991), online: <http://query.nytimes.com/gst/fullpage.html?res=9D0CE1D61E3DF933A257 51C0A967958260> The Estonian question read: “Do you want restoration of the Independence of the Republic of Estonia?” See Taagepera, R Estonia: Return to Independence (Boulder, CO: Westview, 1993) at 193.Google Scholar And the Latvian question read: “Do you support the democratic and independent statehood of the Republic of Latvia?” See Ziemele, supra note 37 at 34.

¹⁰¹ Rai, D Statehood and the Law of Self-Determination (The Hague: Kluwer Law International, 2002) at 349.Google Scholar

¹⁰² Badinter Commission, supra note 48 at para 3.

¹⁰³ UK Electoral Commission, Referendum on Independence for Scotland: Advice of the Electoral Commission on the Proposed Referendum Question (January 2013) at 33,online: <http://www.electoralcommission.org.uk/__data/assets/pdf_file/007/153691/Referendum-on-independence-for-Scotland-our-advice-on -referendum-question.pdf>.

¹⁰⁴ “David Cameron Promises in/out Referendum on EU,” supra note 7.

¹⁰⁵ See “Scotland and the EU: The Polling Evidence,” Newsnet Scotland (16 February 2013), online: <http://newsnetscotland.com/index.php/scottish-opinion/ 6761-scotland-and-the-eu-the-polling-evidence>.

¹⁰⁶ Ibid.

¹⁰⁷ Treaty on the Functioning of the European Union, [2010] OJ C83/47, art 20 [ TFEU].

¹⁰⁸ Compare Van Gend en Loos v Nederlandse Administratie der Belastingen, C-26/62 [1963] ECR 1 at 12 [Van Gend en Loos].

¹⁰⁹ Crawford and Boyle, supra note 9 at paras 142–67.

¹¹⁰ Rasulov, A “Revisiting State Succession to Humanitarian Treaties: Is There a Case for Automaticity?” (2003) 14 Eur J Int’l L 141.CrossRefGoogle Scholar See also Crawford and Boyle, supra note 9 at paras 134–42.

¹¹¹ Ibid at paras 119–33.

¹¹² Van Gend en Loos, supra note 108 at 12.

¹¹³ TFEU, supra note 107, art 20.

¹¹⁴ See Tierney, supra note 4 at 21, giving the examples of Algeria and Greenland but concluding that these situations were different because Algeria was effectively a French colony — and thus an instance of decolonization — while Greenland did not become independent and actually held a referendum on withdrawal from the European Economic Community. According to Tierney, the novel situation in the Scottish case is that Scotland would not be seeking to leave the EU but, in fact, to join it.

¹¹⁵ Crawford and Boyle, supra note 9 at para 171.

¹¹⁶ Ibid at paras 176–78.

¹¹⁷ See, for example, Rudy Grzelczyk v CPAS, C-184/99, [2001] ECR I-6193; Zhu and Chen v Secretary of State for the Home Department, C-200/02, [2004] ECR I-9925; Ruiz Zambrano v ONEM, C-34/09, [2011] ECR I-1177.

¹¹⁸ Rottmann v Freistaat Bayern, C-135/08, [2010] ECR I-1449 [Rottmann].

¹¹⁹ TFEU, supra note 107, art 20(1).

¹²⁰ The court decided, rather, that when a national court decides on withdrawal of a fraudulently obtained citizenship, it needs to consider whether this is proportionate, in light of EU law. Rottmann, supra note 118 at para 55.

¹²¹ O’Neill, A “A Quarrel in a Faraway Country?: Scotland, Independence and the EU,” Eutopia Law (14 November 2011),Google Scholar online: <http://eutopialaw.com/2011/ 11/14/685> <http://eutopialaw.com/2011/ 11/14/685>

¹²² Tierney, supra note 4 at 22.

¹²³ Treaty on European Union, [2010] OJ C83/13, art 50 [TEU]. See Edward, D “Scotland and the European Union,” Scottish Constitutional Futures (17 December 2012) at paras 3–4,Google Scholar online:<http://www.scottishconstitutionalfutures.org/ OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/ articleId/852/David-Edward-Scotland-and-the-European-Union.aspx>.

¹²⁴ TEU, supra note 123, art 50(2).

¹²⁵ Ibid, art 50(3).

¹²⁶ Edward, supra note 123 at para 19.

¹²⁷ See further Tierney, supra note 4 at 24.

¹²⁸ ECHR, supra note 13.

¹²⁹ Crawford and Boyle, supra note 9 at paras 134–41.

¹³⁰ Kuric and Others v Slovenia, No 26828/06, [2013] 56 EHRR 20 [Kuric].

¹³¹ Ibid at paras 21–39.

¹³² Ibid at para 337.

¹³³ Ibid at para 355.

¹³⁴ Ibid.

¹³⁵ Ibid at para 356.

¹³⁶ Ibid at para 357.

¹³⁷ Compare Edward, supra note 123 at para 12.