Independència or Unidad? The Catalonia Crisis and the right to self determination
Considering the recently escalated fight for Catalonian independence, Tim Hagemann explores the legal preconditions for seceding under international law and its applicability to the Catalonia crisis.
When on 27th October, Catalonian President Carlos Puigdemont officially declared the region’s independence from Spain after winning a controversial referendum that led to violent clashes between separatists and the Guardia Civil on 1st October, he made this with a clear reference to Catalonia’s supposed right to self determination under international law.
Catalonia, integral part of the Spanish state for centuries, but nevertheless fostering its own culture and language, voted in 1978 in favor of the new democratic constitution of Spain, that guaranteed Catalonia in Article 147 its own statute of autonomy. Nevertheless, at the latest when the Spanish Constitutional Court nullified a long disputed new autonomy draft in 2006 upon initiative of then conservative opposition leader and current prime minister Mariano Rajoy, the Catalonian call for independence intensified, although the Catalonian population remained divided on the issue.
While being interesting subjects worth being further explored on their own, this article will not deal with any presumed historical, political nor moral claim to independence of Catalonia, but with the legal foundation of state partition or – more specifically – with the question, if the right to self-determination grants minority regions the right to separate from a multiethnic state, if so, under which preconditions, and finally, if these conditions are met in the specific case of Catalonia.
The Right to self determination under international law
The right to self determination is an often cited, but unfortunately very scarcely defined right, which in recent years became the source of much dispute, predominately surrounding supposed violations in the Crimea and Kosovo secession process. To date, the right to self determination can be found in a broad variation of international treaties, including the International Covenant on Civil and Political Rights, the Friendly Relations Declaration and most notably, Article 1 UN Charta.
While in most treaties, the right to self-determination only exists by name, the UN Friendly Relations Declaration gives the best idea to what kind of claim it entitles and who is covered by its scope. Basically, the right to self-determination comprises the rightful claim of all peoples (i.e. all groups of humans that share a common cultural, lingual, religious or ethnic identity and maintain it) to freely determine their political status and to pursue their economic, social and cultural development.
As result of the condemnation of colonialization by the United Nations in the 1960s, the right to self-determination became the principle on which colonized peoples could base their right to independence. Accordingly, the FRD outlined that colonies have a distinct status from their homeland and thus the right to freely exercise their right to self-determination in way of declaring and exercising sovereign independence from their former colonial power. This interpretation was hence supported by the International Court of Justice, that used the opportunity to interpret the right to self-determination in its Namibia and West Sahara advisory opinions, holding that indeed all colonies are covered by this right. Additionally, in East Timor, the court underlined the importance of the right to self-determination by stating its erga omnes character, meaning that a rightful claim to self-determination has binding effect on all states and shall thus be respected. However, the ICJ referred in all these decision to the rights of peoples as part of colonial empires and did not include other forms of coexistence.
The right to self-determination as right to secession in a multiethnic state
While primarily conceptualized as means for decolonization, the right to self-determination has lost its original purpose after the high phase of decolonization in the 1960s and 70s and found its definite end with the release of Palau as last Non-Self-Governing Territory in 1994. Since then, the right to self-determination has gradually been applied to other contexts, especially to the dismemberment of Yugoslavia and the secession of Kosovo and South Sudan. For that reason, the right to self-determination is regularly equated with the right of secession from multiethnic states in the political context as one can currently see in Catalonia. However, the right of peoples to freely determine their political, economic, social and cultural development does not necessarily entitle them to found their own nation on the territory of an already existing state. The FRD itself states, that even though peoples may exercise their self-determination right,
„...nothing [...] 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 color.”
By implication, this means that minorities that enjoy a certain degree of autonomy – particularly in cultural matters – and that are not target of discrimination by the central government, have explicitly no right to impair the territorial integrity of a state under its right to self-determination.
In its Kosovo Advisory Opinion, the Court prominently avoided the question whether the right to self-determination may confer upon part of the population of an existing State a right to secession, stating that a unilateral declaration of independence by itself, however, would not be subject to a violation of international law as there is no existing legal rule that would prohibit such conduct and shall thus be regarded as an internal matter. As unilateral declarations of independence are nothing but a claim of sovereignty towards a state, they can either be accepted by the state, in which case a consensual secession takes place, or rejected, in which case the declaration is simply void.
Even though not acting under the same authority as the ICJ, the Supreme Court of Canada analyzed the arguments for secession under the right to self-determination in a landmark decision concerning the potential secession of Quebec from Canada in 1998. The Court – referring to international law – hold, that there are but three cases where a part of a population may have the right to secede from a state. The first two cases, when a people breaks away from a colonial empire or is subject to alien subjugation, domination or exploitation outside a colonial context, are well established in international law. Although leaving open in how far it actually reflects an international law standard, the Court refers to international scholars and the Vienna Declaration to propose a third possible scenario, namely in circumstances where:
“...a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession.”
The Court justifies this assertion by paralleling it with the first two cases, in which the ability of a people to exercise its right to self-determination internally is somehow being completely frustrated due to a government that does not represent the entire population belonging to its territory without distinction or discrimination of any kind. By implication, the Court underlined, however, that where a people has
“...meaningful access to government to pursue their political, economic, cultural and social development”
international law confers no right to secession and the claim of independence remains a question of internal affairs. In any case, the Supreme Court of Canada stressed that a unilateral declaration of independence may in no case be sufficient for a rightful secession, but would always require a negotiation process between the seceding population and the state as well as a free and equal referendum on the question in the effected territory.
Territorial integrity versus right to self-determination
It goes without saying that the right to self-determination will in case of secession necessarily impair the state’s right to territorial integrity. As seen above, the Court held in East Timor, that the right to self-determination poses a ius cogens norm, i.e. that as a superior norm of international law, a people’s right to secession has to be tolerated by all other states including (!) the one from which the territory is split. In practice, this would mean that the impaired state must not utilize any police or military force to hinder the secession process. As this restrains the territorial integrity of multiethnic states to a serious degree, the threshold for a right to secession outside the colonial context must be evenly high. In this context, it is important to clarify the rationale for a high threshold for overcoming a state’s territorial integrity by secession.
Firstly, on its external dimension, territorial integrity creates clarity on a state’s dominion and thus supports the preservation of international peace and stability. Lowering the threshold for secession would mean to give rivaling border countries the key to legally integrate neighboring territory by supporting and infiltrating their neighbors’ separatist movements, acknowledging their secession process and finally overtaking it by political means or even by (invited) force. Secondly, on its internal dimension, a low threshold could lead to a high degree of mistrust and particularism between a country’s ethnicities. On the one hand giving minority regions a profitable instrument for blackmailing a central government to concessions by threatening its separation or even integration into another state if certain demands are not met. The other way around, it is easily comprehensible that a central state would most likely hesitate to invest in a minority region’s well-being if it had to fear its separation and hence a loss of investment. It goes without saying that a low threshold for secession would in this context work as the perfect breeding ground for internal conflict, human rights violations or even civil war and thus inherits an undeniable threat to international peace and stability.
Accordingly, a right to secession should only arise in cases, where the adherence to territorial integrity of a state poses a higher threat to international security than the secession would. In particular, this means circumstances where the alienation between central state and minority has already reached such a degree that national reconciliation cannot be expected anymore.
Such a situation can only be assumed when a part of a state’s population is constantly denied its fundamental rights and its – especially cultural – self-determination. While in circumstances of serious discrimination, oppression, ethnical cleansing or even genocide, the requirements for secession would undoubtedly be reached, in terms of missing participation, a balanced evaluation is necessary. In cases where the tenacious denial of cultural self-determination and equal participation amounts to a situation where all mediation efforts are rejected by the state authorities and the foundation for internal unrest has reached such a degree that violent conflict is programmed, secession could exceptionally be the lower threat to international stability and thus pose a viable option.
The right to secession in the Catalonia crisis
In accordance, the requirements for a justifiable claim for secession that arises from the right to self-determination outside the colonial context are an affected part of the population that falls under the definition of people (1.), circumstances in which their discrimination or denial of equal participation by the state amounts to a degree where attempting reconciliation would be futile (2.) and an expression of secessionist will by a majority of the affected population, e.g. via referendum (3.).
In the case of Catalonia, the classification of its population as “people” is undoubted regarding their cultural, lingual and historic identity. Likewise, the criterium of an expression of secessionist will could arguably be satisfied as the referendum on Catalonian independence has been sufficiently free and fair from Catalonian side and its obstruction the result of Spanish interference. Nevertheless, Catalonia is clearly neither the subject of serious discrimination nor of equal participation based on their Catalonian identity. It is, in fact, quite the other way around: Catalonians do not only participate freely and equally in the Spanish decision-making process, they also enjoy a constitutionally protected statute of autonomy that grants the region several economic, cultural and political privileges – including their own parliament. Although the force exercised by the Spanish police against voters during the attempted referendum on 1st October could be considered disproportionate and the triggering of Article 155 of the Spanish Constitution by the parliament as a result of the Catalonian declaration of independence revoked its autonomy rights, neither oversteps the critical threshold of secession as the latter is only temporary in nature and both did not result in a situation where reconciliation cannot be expected anymore. The opposite is the case as can be seen by the latest political polls in Catalonia, showing a decent loss of approval for the Catalonian government after the declaration of independence. Moreover, the independence of Catalonia has not been recognized by a single state up to this date.
While the recognition of a state is only declaratory in nature, it nevertheless serves as a strong indicator for the successful acquisition of statehood of a region. In the case of the equally contested secession of the Republic of Kosovo from Serbia in 2008, 110 out of 193 states recognized its independence, including most states in Europe (with the prominent exclusion of Spain). This is hardly surprising when considering the main difference between Catalonia and Kosovo: In the case of the latter, the situation included discrimination, denial of equal rights of participation as well as cultural self-determination and already escalated to a civil war like state while the Serbian government rejected any concessions or a return to the negotiation table.
Overall, from the application of facts to the necessary criteria it becomes clear that Catalonia did not have a right to secession arising from the principle of self-determination. Neither did Spain exclude Catalonians from equal participation in its political institutions nor were they refused the right to cultural self-determination. On the contrary, its numerous privileges made the region one of the EU’s regions with the highest degree of autonomy inside a non-federal state. Although its autonomy rights have been revoked by the central government pending the snap election on 21st December, the nature of this measure is temporary and thus not sufficient to claim a violation of Catalonian self-determination rights. With the current president of Catalonia flown to Brussels and a heated-up atmosphere with hardened fronts on both sides, the further destiny of Catalonia will rest to a high degree on the outcome of these elections, which will either deescalate the situation and clear the way for finding a viable compromise both sides find acceptable – or aggravate the situation to a point of no return.
 Cf. http://www.elnacional.cat/en/news/catalan-republic-declaration-independence_200778_102.html
 Cf. Baròmetre d'Opinió Política. 2a onada, 2017
 Cf. http://www.un-documents.net/a25r2625.htm
 Cf. Inter alia FRD
 Para 154
 Para 154f.
 Much like the Russian Federation acted in the Crimea Crisis.
 In how far the obstruction of the referendum was legitimate under the Spanish constitution is not a question of international law and thus not part of the assessment.