In an address to the Parliament of Catalonia on 10th October 2017, the President of Catalonia issued a ‘suspended’ unilateral declaration of independence (“UDI”) from Spain. The ‘suspended’ UDI followed a controversial independence referendum on 1st October 2017. The referendum, which was mired by protests and attempts by federal police forces to prevent people from voting, had resulted in a vote of 90% in favour of independence with a reported 42% turn-out.
However, the Constitutional Court of Spain has consistently insisted any such referendum would be illegal because it violates the Spanish Constitution of 1978. Article 2 of the Constitution refers to the “indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards”, while it also “recognizes and guarantees the right to self-government of the nationalities and regions of which it is composed”. The Prime Minister of Spain has announced it will seek to activate Article 155 of the Constitution, which would allow it to “take all measures necessary” to ensure compliance with the law, including suspending the self-government (autonomy) of Catalonia.
In organising the referendum and in declaring independence, the secessionists relied explicitly on the right of the Catalan people to self-determination under international law. In effect, the secessionists have equated the right to self-determination with the right to secede. This blog post will analyse how these separate concepts relate to one another under international law.
Decolonisation and the Right to Self-Determination
The right to self-determination of peoples became the bedrock of the decolonisation agenda of the UN, following its inclusion in the UN Charter. When the UN General Assembly condemned colonialism and called for its unconditional end in 1960, it relied explicitly on the right to self-determination. The General Assembly also included the right to self-determination as one of seven principles of international law in its historic Declaration Concerning the Friendly Relations among States of 1970. In this context, numerous former colonies (so called “non-self-governing territories”) achieved self-determination through the establishment of sovereign and independent States.
The International Court of Justice (“ICJ”) had the opportunity to comment on the legal effects of these political developments in the cases surrounding the decolonisation of Namibia, Western Sahara and East Timor. In the cases of Namibia (1971) and Western Sahara (1975), the ICJ held that international law had developed such that the right to self-determination applied to these and indeed all “non-self-governing territories”. In the case of East Timor (1995), the ICJ held that the right of people to self-determination is of an erga omnes character (i.e. is binding on all States). However, in all these three cases the ICJ referred to the right to self-determination as a means to an end: bringing all colonial situations to a speedy end.
Unilateral Declarations of Independence and Secession
After Kosovo issued a UDI in 2008, the ICJ was asked to issue an advisory opinion on the legality under international law of that UDI. The ICJ held that there had been no breach of international law because there was no law explicitly prohibiting such declarations. This is hardly surprising; declarations of independence are essentially claims of sovereignty, which can either be rejected or recognised by sovereign States. If they are recognised, the independence is a fait accompli, and if they are rejected, they become irrelevant, regardless of their legality.
However, the ICJ refused to analyse arguments surrounding the right to self-determination and the secession of Kosovo from Serbia. Instead, the ICJ just stated that there were radically different arguments on whether the right to self-determination confers upon part of the population of an existing State a right to separate from that State. The ICJ thought it was unnecessary to analyse these arguments because it had no direct effect on the legality of the UDI of Kosovo, which was the subject matter of the advisory opinion.
The Supreme Court of Canada did analyse these arguments, in a landmark case concerning the potential secession of Quebec from Canada. The Court held that the “right to secession” only arises under the right to self-determination of a people under international law in three specific situations. First, where a people is governed as part of a colonial empire; secondly, where a people is subject to alien subjugation, domination or exploitation; and thirdly, possibly, where a people is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. According to the Court, in the absence of these situations, international law has established that the right to self-determination of a people is fulfilled through internal self-determination: i.e. within the framework of an existing state.
Returning to the situation in Catalonia, it thus appears that international law does not support the equation of the right to self-determination of a people with the right to secede. If one adopts the view of the Supreme Court of Canada set out above, then the current internal self-government (autonomy) of Catalonia could satisfy Spain’s obligation to respect the right of the Catalan people to self-determination. Whether this is actually the case, would require a factual assessment of the degree of Catalan autonomy, which is beyond the scope of this post. However, rather ironically, attempts by Spain to restrict or suspend the autonomy currently enjoyed by Catalonia, such as by activating Article 155, would actually give credence to the claim that Catalans are denied any meaningful exercise of their right to self-determination within Spain and therefore have the right to secede.
Catalonia is in fact a colony of Spain. It was taken over by force by Spain after the UK betrayed them in signing the Treaty of Utrech in 1713. The UK in the same treaty gained Gibraltar. Recently the Spanish Foreign Minister Alfonso Dastis stated that “The existence of a colony in Europe in the 21st century is an anachronism. We want to get back our territorial integrity.’’ I am sure the Catalans agree with him.
Catalonia is NOT in fact a colony of Spain. You only get that view when start reading by the middle of the book.
I am a Spanish Geographer and thus I have a basic knowledge in Spanish History.
Catalonia has NEVER been a country. This fact obviously does not disallow them to become a country in a future.
It all begins with the muslim occupation of the Peninsula. After they arrived up to the Pyrinees the Franks forced them to retreat and created a buffer area called “Marca Hispanica”, and then remained under control of Carolingians until they were allowed to become independent, but they weren’t a single unit. At that time, the Christians started to reconquer the areas previously lost several kingdoms appeared, among them Aragon Crown, in which, through marriage unions (like Petronila and Berenguer in 1137) glued some of these Catalan counties and the Aragon administrative unit, later expanded.
This process continued until the marriage of the Catholic Kings (1469). By then there were 5 kingdoms in the Peninsula: Portugal, Castile, Navarra, Aragon and Granada, and with this marriage Castile and Aragon were united.
You are pointing out an important event (and by that time there was also the Spanish Succession War equally important), but forgetting the context. It is like taking a 400page book and starting by the 200.
Furthermore, the role of the UK in this story is quite residual. What you pointed out was important, but more important was the Spanish War of Succession (also in that century) were the Ancient Aragon Crown lost its institutions after a dynastic war.
I expect your reply and I would politely request you to read a bit more in order to be better informed.
Yes, you’re Spanish and Geographer, but History you know very little. We had kings, and Aragon was given to our King by their King Ramir because he didn’ts trust the Castillian. Seriously, focus on geography and let others explain History. You suck at it!
There is no significant difference comparing Kosovo case as a Serbian autonomous province according to their Constitution? Actually there are no any …
I’m not a lawyer, so I might be wrong, but I see a lot of articles (not only this one) referring to point 2 of the resolution 1514 (XV) of 14 December 1960 of the UN:
2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
But in the same resolution:
6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.
7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.
Worth mentioning that some members of ERC – the main political party promoting the independency – come from the terrorist organization Terra Lliure (https://en.wikipedia.org/wiki/Terra_Lliure).
Furthermore, no country – or a few number – recognized Catalonia independency and I doubt that any European country would recognize them, as Spain is not Yugoslavia, despite they try to convince the world that Franco is still alive and ruling Spain…
In my opinion, the independency is a maneuver of a few to avoid to declare their wealth to the Spanish Revenue. CiU (now PDeCAT, political party from Catalonia) is so corrupted as PP (political party from Spain).
Finally, I’m surprised of people being socked because of article 155 being applied to Catalonia (in my opinion, it’s necessary at this point, but not desirable) and I didn’t heard anything when UK applied the equivalent (UK does not have a document named such that) to Northern Ireland. No one spoke about HR being violated.
Anyway, just a few reflexions.
The resolution (point 6) what it says is that no other country can invade another and take away territory as it has pressed with Crimea. In no case speaks of a territory can not self-determine. But what sense does point 2 have?
and that ERC has its origins in Terra Lliure, is a joke.