The Edinburgh Agreement includes a major agreement signed by David Cameron, Prime Minister, and Michael Moore, Secretary of State for Scotland, on behalf of the British Government, Alex Salmond, Prime Minister, and Nicola Sturgeon, Deputy Prime Minister, on behalf of the Scottish Government. This main agreement outlines the principles to which both governments are committed – it reads more like a “declaration of principle” that provides more detailed commitments (see the similar structure of peace agreements with the Middle East!). This agreement is accompanied by a Memorandum of Understanding and draft Section 30, which states that “this shall be part of this Agreement”. From a technical point of view, the Edinburgh Agreement therefore includes all three documents. From a more esoteric point of view, the legal status of the Edinburgh Agreement is important for questioning the predisposition of lawyers, considering the law as always available to those who want to create binding obligations and considering legal agreements as always more binding than non-legal alternatives. As I have already said, the Edinburgh Agreement puts this legal perspective into a different perspective. The debate highlights our sense of law for the availability of law in Denun. The Edinburgh Agreement could not be signed in a legally binding form, as there is no simple and appropriate legal form for this type of agreement in our legal system. This is not so important in Scotland, where violence and instability are not a problem. But this was very important in other contexts where negotiations between governments and sub-state actors (governments or so-called governments) take place in a context of violence, where central governments want to change pro- and anti-peace agreement parties in the middle of the process and perhaps break the commitments of their predecessors without loss of reputation. Well, yes: lawyers love to consider hypotheses, and it`s 99.99% likely that this discussion is purely hypothetical. Let me be clear: I am not claiming or trying to suggest that the Edinburgh Agreement is fallacious, that it is probably dishonoured or that it does not resolve the issues it claims to resolve. But during an academic discussion, it may not be ridiculous.
Hypotheses are not just imaginative intellectual exercises; they help us understand the legal consequences of a situation. And it is not interesting to ask whether the law is important or not in the context of two governments that want to commit to finding a common solution to a subject of enormous constitutional importance. Does the agreement have a contractual dimension? It is clear that this is not a contract between two private parties. But like other arrangements between the UK and decentralised governments, it is probably quasi-contractual in nature, as it establishes common reciprocal agreements and obligations with regard to the organisation of the referendum. . . .
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