'Even Children Lisp the Rights of Man': International Human Rights Law and National Minority Jurisdictions

Abstract

This chapter was prompted by a political fallout between the Supreme Court of the United Kingdom (UKSC) and the Scottish Government shortly after the UKSC began first hearing cases in 2009. It involved an attack by the Scottish government on the London-based court for meddling in domestic Scottish affairs, notably Scottish criminal law, on the grounds that certain aspects of Scottish criminal procedure violated the provisions of the Human Rights Act 1998 (HRA) and were therefore beyond the competence of the Scottish government. Whereas there are many possible readings of the political motivation of the Scottish Government in this particular spat, the incident raises an interesting issue for international human rights law. Taking the Scottish governments’ protestations in good faith, this chapter explores whether the position of the Scottish Government can be normatively justified and defended in the practice of human rights law. Emphasising the fact that all human rights norms require some form of ‘domestication’ in their implementation in state legal systems, it provides a sketch of a normative argument for national minority autonomy in the ‘domestication’ international human rights norms in national minority institutional structures by drawing upon liberal theories of minority rights and theories of constitutional patriotism as well as briefly exploring the extant doctrinal, normative and structural resources of the practice of international human rights law which could potentially vindicate such autonomy.