Saturday, 21 October 2017

The Right To Self Determination

How many times have we all read that Catalonia and Scotland have a right to self determination?  I would reckon thousands of times, probably hundreds of times just in the last week or so.  There are countless Yes blogs and tweeters reiterating this right by the second but does this right really exist?  What is the source of the right?  To whom does the right apply?  Let's find out together.

This particular post is going to address the rights of  any people to seek self determination. Before we crack on with the show please remember not to shoot the messenger.  There are uncomfortable truths in this post (I found some of them uncomfortable) and long-held assumptions will be challenged (mine certainly were) but I am neither a fascist nor a Nazi enabler. The same is just as true of Jean-Claude Juncker and Guy Verhofstadt.  In fact, can everyone please stop calling everyone else Nazis because the sitaution in Catalonia regarding free speech and journalistic freedoms is actually rather dire and that comes just as much from the independence movement as any other.  If we can all just calm down we might stop fanning the flames.  Now that disclaimer is out of the way let's crack on with the legal right of peoples to seek self determination.

The Right To Self Determination


Does Catalonia have a right to self determination?  If it does have this right and that right is being denied then maybe the EU should really be bolder here.  The problem is that that Yes tweeters and bloggers talk about the right to self determination but I'm not absolutely sure what they mean.  Is this a moral right?  Moral rights are a bit vague for me because we all have different moral standards and it is almost impossible to adjudicate on that.  Every story has two sides, after all.  I really need to see that right written down in some kind of document that we can all recognise, perhaps something from the United Nations in the form of a declaration.

If I'm going to understand the legal consequences of any document I'm first going to have to understand the terminology used in it.  Words like "people" and "self determination" itself pop up all the time so we need to try to understand what they mean before we can try to to decode any legal document on the topic. What is a "people"?  More to the point, what is "alien subjugation" when it's at home?  Many tweeters talk about "the people of Catalonia" but do they mean it in a legal sense with respect to a legal definition of self determination provided by international law? We're going to have to find out by looking at the source documents.

The UN has a number of historical declarations that refer specifically to self determination.  Modern tools like google search make it embarrassingly easy to find these declarations.  It didn't take me long to stumble across Article 55 of the Charter of the United Nations and the Declaration on Colonial Independence and the Declaration on Friendly Relations.  I'm basically stupid but I'm also tenacious so I spent a few hours working my way through them taking notes, going over sentences again and again until they made sense.  It turns out that the key sections of text are actually quite short but after reading them I was left more confused than I was at the start.  The problem is that they are self contradictory, introduce terms that are never defined, and sometimes vague.  I started to wonder if my basic stupidity had triumphed over my tenacity until I stumbled across an academic history of self determination as a legal term. This has proved a valuable resource in that it turned out I wasn't quite as stupid as I thought: these declarations are confusing and self contradictory.  Moreover, understanding the historical context of the declarations really helped to clarify the legal intentions and their possible interpretations.  I've borrowed my understanding of the timeline from that history of self determination so I obviously urge everyone to read that at their leisure.  You're not getting off that easily: I obviously urge everyone to read the UN declarations as well.
 

 League of Nations


We  now think of it as a legal right but self determination actually started out as a principle.  Woodrow Wilson was one of the first prominent figures to make pronouncements about self determination when in 1918 he declared,
"self-determination is not a mere phrase. It is an imperative principle of action which statesmen will henceforth ignore at their peril."  
Self determination was in the air back in 1918 but it wasn't yet a legal concept.  With the reshaping of borders in Europe being determined by blunt political needs rather than the needs of "peoples", laws were surely needed to help out here.  It's just that there weren't any.  The League of Nations didn't have any laws on self determination, even though it made positive noises at the time.  Self determination was no more than a principle and certainly not a right defended by international law.  The case of the Ă…land Islands gives a flavour of the times and the ambiguity that surrounded self determination. 

In 1945, the League of Nations was replaced with the United Nations and the Charter of the United Nations was signed to mark its inauguration. Article 55 contains the only significant mention of self determination but, to be  honest, it isn't very helpful in determining whether Catalonia can claim a legal right to govern itself.  I urge everyone to read that for themselves.  It is short but also short on the kind of detail that might be of any use to anyone whatsoever.  When it comes to moving from an ambiguous principle to a definitive right, the UN wasn't any more effective than the League of Nations.

Decolonisation


The idea that self determination could be a legal right really took root in the 60s and 70s with the end of the European empires.   The United Nations took a leading role here with its "Declaration on Colonial Independence" in 1960.  I've read through this a few times and it is a confusing document.  It turns out that it is confusing and contradictory and my handy historical guide confirmed it.  The declaration makes significant reference to an unconditional end to colonialism and is entirely about ending colonialism but then paragraph 2 declares the right  to "all peoples". 
2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
 Hmm.  It does not define "peoples" but it does give caveats to those rights: "freely determine their political status and freely pursue their economic, social and cultural development".  Does that sound like an attempt at a definition of colonial rule? It might be but I honestly don't know. Catalonia isn't under colonial rule and I really cannot argue that economic, social, and cultural development is denied to Catalonians. What about political status?  This strikes me as another vague term.  Spain is a democratic nation with local, regional and national elections.  Does that count as determining political status?  I don't know.  It would only be clear if it specifically mentioned the right to form an independent state or a right to national identity or something like that.  Perhaps it can be argued that the intention of the declaration is only to be used within the context of declonisation.  On the other hand, perhaps the authors really intended a wider application of the declaration. I don't know about that. I'm not a lawyer so please make your own judgement. We can say for sure, though, that it has only been applied within the context of decolonisation. I think we can all agree that Catalonia is not a colony of Spain.

What else is confusing about the Declaration on Colonial Independence?  In paragraph 5 it suddenly introduces the concept of Non-Self-Governing Territories but up until that point it had been entirely about "peoples". 
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

 Are "peoples" and "Non-Self-Governing Territories" the same or do they mean different things?  Could a territory contain multiple peoples?  Could a people span multiple territories or incorporate partial territories?  Do people take legal primacy over territories?  We'll actually get to some of that later but this analysis has a narrow focus so I'm only going to worry about it if it pertains to Catalonia.  A Non-Self-Governing Territory is one that is subject to the process of decolonisation.  Catalonia isn't on the UN's list so we can just ignore this ambiguity within the context of this specific declaration.
 
There is yet more confusion in the Declaration on Colonial Independence.  This is the first time that we encounter the term "alien subjugation".  What does it mean?  I honestly don't know but a google search did point me to a compilation of erotic fiction of dubious literary merit.  It may be well be a fantastic read with "perfect tales dripping love, romance, and seduction" but that doesn't really help.

It's time to take a quick breather.  We're nowhere near a modern interpretation of self determination but I hope we're all getting a sense that this is complicated stuff.  Even attempts at sorting out the specific case of decolonisation ended up being filled with ambiguities, undefined terms, and confusions of legal primacy.

Friendly Relations 

 

In 1970, the United Nations adopted the Declaration on Friendly Relations.  Reading about this online leads me to believe this is the legal gold standard for a definition of self determination.  Is it also a confusing and contradictory document?  Yes, it is but far less so than the preceding Declaration on Colonial Independence.  We're going to dive in and we'll be underwater for some time so take a deep breath and steel yourself.

The declaration has a specific section on self determination and it begins with a near reiteration of a statement we've already seen in the Declaration on Colonial Independence
 "...all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development...".  
This isn't exactly unambiguous because it doesn't define "peoples" or "political status". Let's read on to see if it all becomes clearer.  The declaration then goes on to state the aims of self determinism.  The aims are to create friendly relations between States and to bring a speedy end to colonialism according to the wishes of the peoples involved.
  1. To promote friendly relations and co-operation among States; and
  2. To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;
This sounds like a very narrow focus is intended here so this is perhaps a clarification of the  Declaration on Colonial Independence.  That idea is undermined by a later paragraph, which seems to suggest a much wider focus.
The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.
This certainly suggests that self determination includes the establishment of an independent state and it might even be argued that Catalonia falls under the category of a people with that right. This looks really promising but we're not at the end yet.  This document follows a cohesive whole, like all legal documents, so we need to read every last line.
Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.
This paragraphs basically says that the principle of territorial integrity or political unity takes primacy over the right to self determination except in the case where a people is attempting to escape the clutches of a government that discriminates on race, creed or colour.  It's clear to me that Catalonia does not have a legal right to self determination under the Declaration on Friendly Relations because the territorial integrity of Spain trumps everything.   The only conditions under which Spain's territorial integrity does not take precedence over Catalonian rights to self determination would be if it discriminated by race, colour or creed. Spain categorically does not do any of that in Catalan.

 

Conclusion


It's a rare event indeed for this blog to draw a firm conclusion but it really seems as though Catalan does not have an automatic legal right under UN law to claim self determination.  The same is true of Scotland.  If Catalan's leaders thought it did have that right would they not have tested it at the International Court Of Justice?  I obviously can't be sure but I think it is telling that it hasn't happened.

I feel like I've uncovered an uncomfortable truth.  I had always assumed that the right to self determination was enshrined in international law and that there was a legal conflict between the Spanish constitution and international law.  I was completely wrong; I can't see any conflict here at all.  Something similar happened when I tried to find an EU law that Spain had broken by denying the Catalonians the right to hold a referendum.  I expected to find an appropriate law but I couldn't find any such law because no such law exists.  Only then did it become clear why the EU was floundering around looking generally like useless idiots.  The situation with the UN, however, goes much further than that: a law does exist and it expressly does not provide for the legal right to self determination, except in specific circumstances that to not apply in this instance.

If the Spanish government hasn't broken international law and it hasn't broken EU law then it is useful to ask if it has broken Spanish law.  For example, is it doing anything that runs counter to its constitution? I'm trying to work that out right now and it will likely be the subject of my next post.

PS  Do whatever you want this post but in light of this report please stay calm so as not to fan the flames. Do please read the report from Reporters Without Borders. It is a genuinely sobering read.

21 comments:

  1. Interesting...

    And thought provoking.

    My take is that self determination is whatever the 'peoples' involved & the international community accept it to be. Which is hardly the definition of a law...

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    1. The very specific legal right to self determination is a question for the International Court of Justice and the way that it upholds declarations of the United Nations. The assumption of that legal right is a false assumption, which was a surprise to me. We simply cannot say that Spain is denying the rights of Catalonian citizens. We also cannot say that the UK government is denying the rights of Scottish citizens. No international laws are being broken by denying the right to self determination because, in most cases, that right does not exist.

      Recognition of an independent nation having gained independence is quite another affair. That certainly boils down to the international community recognising a newly independent nation as a nation. Getting that recognition is a tricky business if the process of independence led to territorial disputes. This is a complicated problem because there are very few cases where independence was achieved through truly democratic means. That isn't surprising because there is rarely a legal case for self determination under international law that might lead to a legally agreed separation. At the same time, it seems that democratic process is key to international recognition because it is the only way to guarantee that there are no territorial disputes. Something of a conundrum.

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    2. In no small part it comes down to arguments about whether a place is a colony or not. Is Scotland a colony of England's? Is Catalonia a colony of Spain's? Is there a legal definition of colony? Or is 'colony' the equivalent of 'marriage' which at one time was defined as a specific type of relationship involving one man & one woman but is now accepted in many countries as being a defined relationship between two people regardless of gender? And let's not forget that the current UN laws were drafted at a time when post-colonialism was the driving force for the codification of new agreements & new UN legislation may be required for the likes of Catalonia & Scotland with the existing arrangements being used to set the precedence.

      I find your analysis very interesting indeed but am very aware that all laws are very mutable.

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    3. The UN maintains a list of all colonies, which the UN refers to as "non-self-governing" territories. There are currently 17 territories on the list, with 10 belonging to the UK. The UK territories look like historical hangovers from the days of empire eg Gibraltar, Cayman Islands etc.

      http://www.un.org/en/decolonization/nonselfgovterritories.shtml

      Gibraltar is on the list. Extrapolating a bit, I would guess that Gibraltar's democratic decision to remain part of the UK is protected by the UN Declaration on Decolonisation. Spain cannot claim it as Spanish territory because the people of Gibraltar expressed their self determination to be UK citizens.

      I think this is as clear as any law could ever be: if you're not on the list, you cannot be legally defined as a colony and the Declaration on Colonial States does not apply. Honestly, I don't see any wiggle room here.

      How would any territory or people get themselves added to the UN's list? What criteria are applied? That isn't immediately clear. I could only find this waffle from the UN Special Committee on Decolonization:

      The Special Committee annually reviews the list of Territories to which the Declaration is applicable and makes recommendations as to its implementation. It also hears statements from NSGTs representatives, dispatches visiting missions, and organizes seminars on the political, social and economic situation in the Territories. Further, the Special Committee annually makes recommendations concerning the dissemination of information to mobilize public opinion in support of the decolonization process, and observes the Week of Solidarity with the Peoples of Non-Self-Governing Territories.

      To be on the list of non-self-governing territories would require the Special Committee to come to a decision. It's not absolutely clear how they arrive at decisions, though. I think it would be near impossible to argue that Catalonia or Scotland have been colonised given that they both many years of peaceful history as part of a geographically cohesive state. Others may take a different view but we definitely know which body is responsible for making it.


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    4. The current "law" is harming people and needs changed. Governments everywhere are simply telling us all what to do and we follow like wee sheep just because of these "laws" made by those WE voted into power. We can still band together to get such dictators OUT of that power if we really act as one!...But we need to start somewhere and we need to back up others trying to do this...like Catalonia or Scotland....by completely opposing any more "laws" which are removed by such governments that prevent freedom of speech etc...as is happening now with alarming speed. Remember WE are the "peoples"...and government were created to serve US....NOT the other way around!!!!

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    5. Thanks anonymous.

      Could you be a bit more specific please? For example, which law would you like changed more than any other? If this blog is about anything, then it is about detail.

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  2. I'm a bit troubled by the concept of a "law" being the basis on which alleged "breaches" are judged, without any qualification as to whether that law was in itself just. What if the original law had been designed to restrict the rights of specific groups? If we extend that logic, could the surviving Nazis have been exonerated at the Nurnberg Trials if Hitler had had the foresight to pass a law stating that it was illegal for Jews to exist in the Reich?

    It seems to me unsupportable that a clause inserted into the Spanish Constitution by Franco's generals following his death can be held to be binding decades later when events have clearly changed the political, economic and demographic scenario in the interim.

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    1. I think you're referring to the indivisibility of Spain in Section 2 of the Spanish constitution. I couldn't find any evidence that it was put there by fascist generals so let's put that to one side.

      Having a constitution that forbids the indivisibility of a nation is perfectly normal in democratic countries. It's right there in Article 5 of the Italian constitution ("The Republic is one and indivisible"). It's right there in Article 2 and 3 of the Austrian constitution (Article 2 lists the states of the federation, Article 3 says that Article 2 can only be amended by constitutional change to the federation and to the state seceding). I could go on and on like this but it is a plain statement of fact that the Spanish constitution is exactly like that of almost any other democratic nation with a written constitution. I couldn't come up with a single nation that expressly allows secession in its constitution.

      There are many sound reasons to include the indivisibility of national territory in the constitution. One is concerned with the fair distribution of wealth ie to stop a rich state leaving poor states behind. Another is self defence ie to stop a foreign power taking control of national territory. Another is to stop the theft of land and assets. There are many genuinely reasons to include this provision in a constitution. It is very hard to argue that Article 2 of the Spanish constitution is bad in itself because it is based on principles in line with social democracy.

      How do we solve this crisis by legal and democratic means? I'm limiting myself to legal and democratic means because that is my personal choice (I'll come back to this later). The only resolution I can see is an extra provision in the Spanish constitution that allows states to secede under specific conditions of democratic representation and accountability. But how do we change the Spanish constitution? That requires the democratically elected representatives of Spain to agree on this with a majority as laid down in the Spanish constitution itself. Constitutions can always be changed but that change is subject to democratic representation. Is that going to happen? I don't think so. It strikes me that the democratically elected representatives of Spain want to uphold the constitution as it is now. If they wanted it changed, they would change it.

      I'd like to people to think carefully before they froth at the mouth at Spain or the EU on this ver specific issue of the constitution and law. They are asking Spain to abandon its commitment to uphold an Article of the constitution that is in line with many, many other democratic nations (I couldn't come up with a single nation that expressly allows secession in its constitution). If they ask the EU to intervene then they are asking the EU to be complicit in that abandonment of democratic and constitutional principles. What does that sound like? What word do we use for states that abandon democratic representation and pay no attention to its own constitution?


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  3. Awesome research.

    Frightening and rather unsatisfactory results.

    And yet there is a logicality about them.

    When you think about it, why would any constitution allow for secession? What country is set up to lose part of its territories?

    If we had a constitution, would it allow for secession of Scotland? If so, would it them allow for the secession of Shetland? If so, then why not Falkirk? Or Monifieth High Street?

    This is not what I wanted to hear, of course.

    This was a lot to take in and I may have missed something. But in the case of Scotland and England/Wales, the union was as a result of a treaty. A treaty which, had there been any kind of democracy in Scotland at the time, would not have been signed. (It was designed to help the rich and reward the aristocracy, without harming the educated classes (lawyers, clergymen, doctors, educators, which is why Scots law, religion and education have never been assimilated into the British forms).

    Could that treaty be revoked? Probably only at the wishes of both parliaments, and for as long as Scotland is useful to the UK, there's no chance of that.

    Need to think much more about that.

    Thanks for the work that must have gone into writing this piece.

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    1. It is unsatisfactory, indeed. It is also open to challenge by anyone who can point me to other documents and declarations.

      I'm writing a post right now about the indivisibility of nations. There are progressive, liberal and democratic reasons to include this in a constitution. I couldn't find any state that provided for secession in its constitution.

      Scotland is a different case from Catalonia. Every case is different, as far as I understand it.

      I've read many times, albeit mainly in the context of an alternative to A50, that treaties can be undone by another treaty. I would guess it would also be true for Scotland's secession. That would require an agreement form all parties if it is to be done smoothly/legally/democratically. Personally, especially after seeing what is happening in Catalonia, I would want it achieved democratically. Apart from anything else, UN recognition of an independent state will be very difficult if there are residual territorial disputes. Without UN recognition there is nothing: no EU, no WTO, no UN, no Council of Europe etc.

      The UK is different in that it does have a constitution but definitely not all in one place and I'm not absolutely certain that it is all written down. I need to check that. UK law provides for a Section 30 request but the response to that request is, to me at least, something of a grey area. Now, the UK is a very pragmatic nation and, despite all of its faults, it occasionally has the ability to play fair and recognise political mandate. I believe that granting a Section 30 is about protocol rather than strict law. I really need to find out more about this.

      In this post I wanted to find out if Scotland or Catalonia had an inalienable right to seek self determination. I don't think either does but that isn't the end of the story.

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    2. I'll add my thanks too, Terry.

      Tris, all it would take is for Scotland's elected representatives to declare the Act of Union null & void & treaties do not need both parties to agree to their termination. Of course, should one party object then there are possible consequences to deal with. But the argument will be a) who are those representatives (MPs or MSPs or others?) and, b) do they have a
      authority to do so. The hurdle is getting Westminster to recognise that declaration as valid & for the institutions of Scotland & rUK to act as if it is.

      The legal position of the UK is that Scotland doesn't have the right to act in such a manner but that is merely an interpretation & open to legal challenge, though I'm not sure which court is competent to hear the case should it be brought.

      Section 30 etc. is simply part of the means by which Scotland hopes to have a prior agreement from Westminster that the decision of the referendum will be accepted as a legal mandate for independence to occur (not be granted, because that implies the UK has a legal right to grant or block it).

      The Spanish/Catalonian situation is legally quite different, though arguably morally much the same.

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    3. Many thanks for clearing that up, Hugh. It certainly sounds like a messy situation. I wonder which court would look at that. Maybe the Supreme court? I honestly have no idea.

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    4. I should add the caveat that the above is my understanding of the situation, not hard 'fact'. But like all things in law, interpretation is everything. And messy.

      UK Supreme Court? Possibly...but I was thinking more in terms of an international court because I don't see a UK institution being fair and impartial in the eyes of Scottish indy supporters.

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  4. Likewise, thank you, Hugh.

    I don;t think I'd trust the Supreme Court with a decision about it. Like Terry I think an international court... but which one?

    ECJ probably wouldn't have jurisdiction over it. The World Court in the Hague? I'm not sure about what it really does. Must look it up.

    http://www.law.columbia.edu/media_inquiries/news_events/2013/september2013/donoghue-world-court


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    1. I'm not sure any court outside the UK can adjudicate on UK domestic law. This isn't a dispute between states, for example. It also isn't a question for The Charter of the United Nations.

      It's not a breach of EU law so ECJ definitely doesn't have jurisdiction. The International Court of Justice adjudicates on international law, which is a broad term. It sounds optimistic to think it would adjudicate on a Section 30 ruling. How about a human rights ruling at ECtHR? From what I've recently learned I don't think this can be framed in those terms. I'm not sure which UK court is best but it sort of strikes me that this is a domestic issue.

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    2. Not a dispute between different states? That is precisely what it is if we are talking about declaring the Act of Union null & void. Two states, Scotland & England (incorporating the Principality of Wales) signed that Act which united both countries into a single entity. It is a valid legal argument to say that these two states still exist today (in fact, I'm pretty sure that is how the UK is defined at the UN) so an international court, like the one in the Hague, could hear the case. But that is what lawyers are there for & it is well above my pay grade. Perhaps it has been looked at & deemed unlikely to succeed. Who knows...

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    3. I think the problem might be that Scotland doesn't have representation at, say, the UN. This is also above my pay grade.

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    4. That's no barrier Terry. No newly independent country has representatives at the UN until they are recognised by the UN.

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  5. We'd best hope that Maybot sees what can happen if central government refuses to allow a democratic vote and doesn't put us in a position where we have to look for a court capable and empowered to adjudicate on this.

    I've always been utterly against UDI.

    And I'd hate violence on the streets here.

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    1. I'm wildly guessing that May is more worried about the timing of an indyref than anything else.

      I'm struggling to think of the circumstances that would lead me to support UDI. Not living in Scotland, I wouldn't even be able to defend them because I wouldn't have to live with the consequences.

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    2. UDI would be perfectly acceptable to me if it was known that a sizeable majority was in favour of independence. 2/3rds, 3/4rs, 90%, something like that. But how do you tell? That's what a referendum achieves without doubt.

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