Daniel Grütters

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 President 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 Assemblycondemned 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.

Conclusion

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: The Right to Secede and the Right to Self-Determination

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