Is The Treaty of Union Already Dead?

Due to the renewed interest in Scotland's status of existence or not, recently dragged up by Governor General Moore et al, it seems there has been a resurgence in interest in an article I had published in Newsnet Scotland in July of 2011. As I'd never previously included it in the blog, I've decided that perhaps now would be a good time to do just that.

The question I posed at the time was: Is the Treaty of Union Already Dead?

The Treaty of Union 1707, we live every day of our lives with its effects – but should we?

Could we, if we choose, simply denounce it, has that already been done, or have events simply transpired to void it entirely? Are we at liberty, under international law, to simply “walk away’.

For almost all of us it consumes much of our waking time, consciously or otherwise as we struggle to pay the taxes and debts imposed by its after effects. It has done so for generations of Scots.

Our forebears fought and died because of it, through it, in support of it or against it.

Yet under international law It certainly appears void, if not simply revoked. It just seems there’s a distinct lack of willingness to test this by any relevant party.

In view of the above this article specifically does not advocate or focus on a single course of action; although it certainly uncovers several intriguing and interesting potentialities available to us Scots, should we choose. Law is about interpretation, what follows is one very reasonable such interpretation.

Our land and our nation has often been derided, pilloried and a comic joke because of it [this Union], mainly from within.

Even in the halls of power, that corrupt underbelly that we call Westminster, proven so in the courts of our lands, that place which is supposed to uphold our nation and care for it in this Union there is little respect demonstrated for Scotland.

There is an interesting and entertaining aspect to international law, it’s called the Vienna Convention, and it exists in a stratosphere of law that governs international treaties.

This article of law was adopted on May 23rd, 1969. It didn't exist in 1707, but it does claim jurisprudence over almost all international treaty and law since its ratification. And it has very definite retroactive implications.

If it had existed in 1706/1707, there would have been no Union Treaty as we know it. That is irrefutable.

The signatory states to the Vienna Convention agreed that international law and treaty law as defined by it would have jurisdiction over their own national laws. Basically if the UK [and thereby its constituent nations] signed up to it, they agreed to be bound by it.

It can be regarded as entertaining because the signatories to it, including the United Kingdom which ratified it on June 25th 1971, and implemented it on January 27th 1980, on the surface did not appear to fully understand the entire scope of their actions.

The UK and its constitutional law brigade certainly thought it may have covered its bases, yet there is a section or two in the Vienna Convention that indicates it may not have. The language is not categorically unambiguous, but the intent certainly appears clear.

We really should test it. At the very least it would prove interesting. 

Where the Vienna Convention specifically does not remove itself from treaties of a historical nature are when their principles are overtaken by new or ratified principles of recognized international law, or when they have been voided prior to inception and would be regarded as so being by evolving international law (article 64).

This aspect of the Vienna Convention specifically itemizes the following areas as voiding treaty agreements.

Article 49

Fraud

If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State, the State may invoke the fraud as invalidating its consent to be bound by the treaty.

Article 50

Corruption of a representative of a State

If the expression of a State’s consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State, the State may invoke such corruption as invalidating its consent to be bound by the treaty.

Article 51

Coercion of a representative of a State

The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of its representative through acts or threats directed against him shall be without any legal effect.

Article 52

Coercion of a State by the threat or use of force

A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.

A quick examination into the founding aspects around the Union Treaty is worthwhile – did it significantly contravene articles 49 through 52 of the Vienna Convention. Investigations and perusal of records show there is a relatively simple case to be made for contravention, not just of one the above, but potentially all of the above.

Any single contravention of the above articles would be more than valid enough reason to negate the Treaty of Union since inception.

It would certainly leave us with an entertaining constitutional conundrum.

Interestingly even article 14 of the Treaty of Union itself can be used as verification of corruption. Article 14 stating; “the Equivalent, granted £398,085 and 10 s sterling to Scotland to offset future liability towards the English national debt”. In essence as history records, it was detailed as being subsequently used as a means of compensation [bribery] for investors in the Darien Scheme, and Union supporters.

This sum noted above was only paid after signature. None of the above funds were recorded as being distributed to anyone who opposed the Treaty of Union, nor could they be given to “Scotland’s government” – it no longer existed. They are reported and acknowledged to have been distributed solely amongst those who worked for passage of the Union Treaty.

Direct bribery was also known to be a factor. £20,000 (£240,000 Scots) was dispatched to Scotland for distribution by the Earl of Glasgow. James Douglas, 2nd Duke of Queensberry, the Queen's Commissioner in Parliament, received £12,325, himself.

Now under Article 45

Loss of a right to invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty

A State may no longer invoke a ground for invalidating, terminating, withdrawing from or suspending the operation of a treaty under articles 46 to 50 or articles 60 and 62 if, after becoming aware of the facts:

(a) it shall have expressly agreed that the treaty is valid or remains in force or continues in operation, as the case may be; or

(b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be.

It can be clearly seen these do not apply to Scotland – the civil unrest and popular (dis)Unity has been widespread since treaty inception, and, in its most basic form, absent an independent government it was unable to fall into the first category. Without an independent government, Scots could not expressly agree.

So much for the past, this is the present, and it’s within article 45[b] that past meets present. There was an interesting quirk in 1999 when Winnie Ewing made her famous statement.

Certainly Winnie was acting as a government representative – certainly she had full authority to make the address, just as certainly her words have never been officially disputed either by Westminster or Holyrood. Arguably just as certainly she served notice on Westminster that under 45b that Scotland did NOT acquiesce.

The actual words of Winnie Ewing have been widely acclaimed; "The Scottish Parliament, which adjourned on 25 March 1707, is hereby reconvened."

Basically and effectively Ms. Ewing served notice on the Westminster government that the treaty of Union was ended.

The Scottish government had re-convened. It went undisputed. Treaties can be terminated by universal, bi-lateral or unilateral acts. They can also be terminated by the fundamental reason d’être of the treaty no longer being valid.

In 1999 a fundamental change took place within the Treaty of Union – there were again two parliaments.

The primary reason for the Union Treaty was to remove the dual parliamentary system. The Scots through their representative declared that their parliament was “re-convened” the English under international law in its most basic interpretation have no right of interference in the internal politics of another country.

Arguably, on 12th of May 1999 Ms. Ewing told our nation “if you want a Union – now go negotiate one” – perhaps that is just what Alex Salmond should do – declare the treaty of Union dead as of a set date [12th May 1999] based upon the facts, and request of the Scottish people the authority to renegotiate a treaty that is fair and reasonable towards Scotland – if such can be achieved. The actual official date of termination, and the end of all obligations under that ancient agreement could be June 24th 2014.

We should therefore invite England to the negotiating table. That would require a separate English parliament however.

Let them decline if they choose. It would also solve that pesky “West Lothian question”.

If the English do come to the negotiating table, and agreements are reached, then let the Scots vote on the new treaty, allowing terms can be arranged that the Scots might accept.

Perhaps we should simply take that “Independence” word right of the table. It is certainly appearing an option. The question then becomes do we devolve our government to Westminster again, and if so, what aspects?

Last but not least, and worthy as a footnote is an interesting Westminster quirk – Westminster now sees itself categorically as England’s parliament and Scotland’s overlord.

It views itself as a UK government of dominion, not of partners. It has demonstrated it would retain dominion.

If Westminster / the UK parliament had any other pretexts these are effectively dismissed by the list of countries with whom it can “do business”, conclude treaties etc.

Scotland is on that list, England is not. Northern Ireland is also on this list, but as Wales was taken by right of conquest it doesn't have to be. Wales is absent. The only discernible reason England would not be on that list is because Westminster views itself as England’s Parliament.

Although the UK Government’s website does list Scotland as a nation with which it can enter and execute treaties, it has none listed for review against our nation. Not the treaty of 1328 (Treaty of Edinburgh-Northampton) recognising our nationhood “for all time coming” or the treaty of 1707 where we entered the Union of Parliaments.

The treaties recognising our borders are also conveniently absent, as is the existence of a treaty where the latest 6,000 miles of seabed was “grabbed by England” in the last decade – meaning under UN rules that act can also be construed as basically illegal – void.