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Scottish Independence and Scotland's Future
Comment made on Scottish Borders by Dr James Wilkie

On reading this tissue of superficiality from authors who evidently just don't know Scotland, I would advise them to go away and study history.

The line of the border between Scotland and England was fixed by the Treaty of York, dated 12 November in the year 1273, between Alexander II, King of Scots, and Henry III, King of England, and apart from a minor adjustment in the west in 1552 has never been altered to this day. That border runs from the middle of the Solway Firth to the mouth of the River Tweed. The Royal Border Bridge at Berwick, opened by Queen Victoria in 1850, is proof that this was recognised even in the 19th century. That was the line that was in force at the moment of union on 1 May 1707 and is the line that will apply at the moment of independence. The issue is cut and dried and there is no room for any negotiation.

The Scottish Royal Burgh of Berwick received its founding Charter in the year 1174 from David I, King of Scots. Because of the strategic importance of the town and its castle, right on the border, they were the victims of a number of English depredations over several decades. These, however, were pure military aggression with no constitutional significance, and furthermore were in flagrant breach of the Treaty of York. The town did not simply "change hands", as is often alleged, as if a state of lawlessness had prevailed at the time, because since 1273 at the latest its Scottish status has never been in doubt.

King James IV wanted to marry the daughter of the English King Henry VII for dynastic reasons, and in 1552 under pressure agreed to leave the town and castle of Berwick under English administration, while remaining under Scots law, with no alteration to the Tweed border. In 1746, however, in panic measures taken after the Jacobite scare, tartan and bagpipes were banned, and in Section 3 of the Wales and Berwick Act it was decreed that Berwick would henceforth be subject to English law. Unlike the other proscriptions, that one has never been repealed to this day, not even by the 1978 Interpretation Act, which repealed the 1746 Act. As from independence, however, Berwick will once again automatically revert to Scots law, which was in force there at the moment of union.

The "force majeure" agreement on English administration was confined to the town and castle of Berwick and did NOT include the landward area north of Berwick up to Marshall Meadows and Lamberton that forms part of the English-administered enclave within Scotland. That territory was added to the Berwick enclave in Victorian times, with what constitutional justification is best known to its authors. It, too, will revert to Scottish administration at the moment of independence.

There are therefore several grounds for determining that Scotland's marine border in the North Sea starts from Berwick harbour light at the end of the breakwater right in the middle of the Tweed estuary (5545‟53.28"N159‟03.12"W), and runs eastwards along a parallel of latitude until it meets the median line at the Netherlands EEZ.

There is no doubt about this border between the Scottish and English jurisdictions, because it has existed and been legally observed for centuries, as participants in the fishing industry can testify. The principle of a degree of latitude constituting the border has been accepted by the UK, and was confirmed and archived with the United Nations in the UK's 1968 submission on the law of the sea.

Regarding the "equidistance method", Article 15 of the UN Convention on the Law of the Sea (UNCLOS) states quite specifically: "The above provision does not apply, however, where it is necessary by reason of historic title or other special circumstances to delimit the territorial seas of the two States in a way which is at variance therewith." Scotland's "historic title" to the Tweed border and the 5545'53.28"N latitude marine border, after hundreds of years of usage, can hardly be successfully challenged.

I doubt whether any international tribunal would base its judgement on such a catalogue of unredeemed mediaeval chicanery - and I haven't even started on the skulduggery of the 1999 Order, that purported to shift the marine border to the north without consultation with Scotland - a fundamental constitutional issue that was given nothing even approaching the relevant legislative consideration and democratic approval.

To conclude, I suggest that politicians, journalists and academics should not be invited to comment on Scottish affairs until they have demonstrated that they have sufficient knowledge of Scotland to enable them to do so.

See also paper on Scotland's National Borders

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