THE RESPONSE WAS MASTERFUL

Lots of people who read this blog regularly are very impressed by regular columnist Mia when arguing her case for Scotland. This series on the Claim of Right sees Mia in her element. she writes the most devastating replies to challenges, in a very polite and proper way, but devastating none the less. Earlier this week she wrote a lengthy response to another reader who, also politely challenged and disputed the main article on the Claim of Right. Today and tomorrow I plan to publish Mia’s reply as it often both explains and illustrates, in an understandable form, the opportunities and importance of the Claim of Right.

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@daveytee19

“So what’s a sovereign state? The dictionary says, IMO quite correctly, that it’s a state with a defined territory that administers its own government and is not subject to or dependent on another power”

Wonderful. 

That is exactly what Scotland was when it entered voluntarily into the International Treaty of Union 1707. It could not possibly be any other way, because to enter a treaty you have to have capacity and competence. I hope that unless until here we both agree.

Now let’s take a look at Article 6 of the Vienna Convention in the Law of Treaties:

Article 6 – “Capacity of States to conclude treaties”
“Every state possesses capacity to conclude treaties”

What this article implies is that a state does not lose its statehood by entering a treaty. From this, the conclusion is that Scotland did not give away its sovereignty and statehood by entering into an international Treaty. It lent it. If you look in the treaty of union you will see that nowhere it says Scotland has to give up its parliament. Nor it says anywhere that it cannot open another one or one hundred if it so wishes, whenever it likes.

This fantastic series of articles about the Claim of Right clearly shows a Scottish constitution that is very much alive and that declares absolute rule unlawful. The Claim of Right, an expression of that constitution, is what underpins the Treaty of Union. If the nobility in 1707 were giving away Scotland’s sovereignty on signing the treaty, they would have never bothered demanding the Claim of Right to be a fundamental condition of the Treaty, nor the keeping of Scotland’s crown, seal and a mint in Scotland, or a separate body of law for Scotland and another few things. They clearly had a very strong determination to keep Scotland’s nationhood and distinctiveness in perpetuity. That is not what a nation who is ready to surrender its sovereignty does.

I think you find that the perception of loss of sovereignty is a fabrication through continuous and calculated misinformation and erosion, accompanied by a relentless attack on Scotland’s language and heritage.

I invite you to read about the Malt Tax and the 1713 attempt to repeal the Union. At that point, only 6 years after the treaty of union had been signed, Scotland’s representatives, in both the house of commons and the house of lords, did not appear to believe your version that Scotland had surrendered its sovereignty in perpetuity, hence it could no longer dissolve the treaty and end the union. At that time, they brought a bill to parliament to end the treaty of union and they lost by just a handful of votes.

I have no doubt that had those Scottish MPs be sitting in a parliament in Scotland and the union would have ended in 1713. Scotland got its parliament back in 1999, so there is nothing stopping a majority of pro indy MSPs passing an Act to repeal the Act of Union and end the treaty in the same parliament where the Act of Union was passed back in 1706.

I am convinced that it is precisely to hide this fact that we are being fed over and over again the idea that Holyrood is an appendage of Westminster and it has to abide by Westminster rules and therefore it does not have power even to open its own doors. I think this is nonsense because because those sitting in that parliament are not elected by England MPs. They are elected by us, the people of Scotland. We decide who sits in those seats, not England MPs. Therefore we decide what that parliament has power for and for what not.

So whose opinion are we to consider more credible, that of those that had witnessed the signature of the treaty and knew the conditions in the treaty were not a mere decoration and were prepared to end the Treaty of Union back in 1713, or the England MPs of today, the disinformation units funded by England as the UK government and the useful idiots north and south of the border bribed to help preserve the union?

I most certainly trust far more the judgement of those MPs in 1706.

On the 12 March 2019, there was a heated discussion in Westminster regarding the “Withdrawal Agreement: Legal Opinion”. The discussion was not about the Treaty of Union, as you can imagine. it was about the backstop and NI Protocol. The discussion was a lot around the fact that this protocol did not have an explicit exit clause, just like the Treaty of Union 1707 does not have one.

England MPs were fretting about how to exit the Withdrawal agreement quickly and on demand without an explicit exit clause. If like you say the Treaty of Union was irreversible because it does not have an exit clause, so it would be the NI Protocol the MPs were discussing on 12 March 2019.

Well, you would be delighted to find out that this is not the case at all. If there was something all MPs agreed was in the fact that the Protocol , without its exit clause, could still be ended.

It appeared to be common knowledge in the UK parliament that you would always be able to exit an international treaty without an exit clause if you could demonstrate that your partner used “bad faith”. This is in reference to Article 26 of the Vienna Convention on the Law of Treaties:

Article 26
“Pacta sunt servanda”
“Every treaty in force is binding upon the parties to it and must be performed by them in good faith”

Well, the England MPs, were really concerned about having to rely only on the EU’s “bad faith” to be able to exit the protocol on their say so. It was obvious that most MPs thought they would not be able to prove easily that the EU was operating in bad faith. At the end of the day the EU is not like perfidious Albion, is it? 

What they were saying is that not having an exit clause does not mean you can not exit the treaty, it means that in normal circumstances you may have to rely on being able to demonstrate bad faith from the partner of the treaty to declare it void, as bad faith is a fundamental assumption in International law as reflected in several of the articles of the Vienna Convention on the law of treaties.

The Attorney General was trying to put across that “bad faith” is very difficult to prove. Well, heaven forbid the EU dared to pull the same fast one England has been pulling on Scotland for 300 years on the back of a silly treaty and a few silly conditions. As Howe said, “a thief thinks everybody steals”. England MPs clearly know all about how to disguise bad faith as good faith because they have been doing it for 300 years by deliberately misinterpreting the treaty of union 1707 and its conditions to continuously abuse Scotland, trash its heritage and culture and ransack its assets, haven’t they? I mean, the imposition of the Malt Tax in 1713 was already, 6 years in, a breach of the conditions.

There is no wonder that during this discussion in 2019 they were terrified of the EU, much bigger in size than the UK, using bad faith to twist the treaty because they knew very well the consequences of such an action as England’s representatives had been doing it to Scotland for centuries.

But incidentally, when somebody challenged the Attorney General on that point he also said this:

“It is extremely important to remember that there is always a right to terminate a treaty unilaterally if circumstances fundamentally change. There is no question but that we have a right to exit if those circumstances apply.”

So there you have it. The Uk Attorney General in 2019 speaking to UK Parliament and telling us all that a treaty can always be terminated either by proving bad faith or by demonstrating a change in circumstances. I am sure the UK Attorney General knew what he was talking about when addressing HM Parliament and said that, don’t you agree?

I have no reason to question his word. Do you?

This was March 2019. At that point, the circumstances of the UK union had fundamentally changed. In fact, the circumstances had changed continuously in 2016, 2017, 2018 and 2019 with the successive assaults on our democratic rights, our constitution, the Scotland Act, even the Sewel convention. If Nicola Sturgeon and the SNP were really pursuing independence instead of taking the yes voters for a ride of fools and using our votes to preserve the union, they would have initiated right there and then, the dissolution of the treaty on the basis of material change in circumstances. And they should have done so, because also in the Vienna Convention on the Law of Treaties there is this jewel:

“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”

In other words: use it or lose it.

I am sure you will agree with me that it would be absolutely unforgivable and nothing short of betrayal and gross dereliction of duty, if the deliberate and calculated lack of action from Nicola Sturgeon and her SNP to declare the Treaty of Union void in the face of the many breaches of the treaty of union and the many changes in circumstances unacceptable to us, we might have lost the opportunity to terminate this treaty under articles 46 to 50 and articles 60 to 62.

Has that opportunity passed us by because of her stubbornness, or perhaps because her political allegiances might lie at the opposite side where she claims she sits? Have her lack of action made it now too late for Scotland to use any of the doors the Vienna Convention on the Law of treaties offers for Scotland to exit this union, because her lack of action might be interpreted as “acquiescence of Scotland to the validity of the treaty” ? Such thing would be akin at her forcing on us an unlawful treaty. In other words, we would not be in this union because England is forcing us to. We would be in this union because Nicola Sturgeon has been denying us access to the mechanisms at our disposal to legitimately terminate a Treaty that has become toxic for Scotland. Would you agree with me on this point?

MORE TOMORROW AS MIA WARMS TO HER TASK.

BEAT THE CENSORS

Sadly some sites had given up on being pro Indy sites and have decided to become merely pro SNP sites where any criticism of the Party Leader or opposition to the latest policy extremes, results in censorship being applied. This, in the rather over optimistic belief that this will suppress public discussion on such topics. My regular readers have expertly worked out that by regularly sharing articles on this site defeats that censorship and makes it all rather pointless. I really do appreciate such support and free speech in Scotland is remaining unaffected by their juvenile censorship. Indeed it is has become a symptom of weakness and guilt. Quite encouraging really.

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