Catalonia and International Law (as I understand it)

Tomorrow Catalonia either will or won’t succeed in holding a vote on secession from Spain. The referendum was duly approved by Catalonia’s regional parliament (albeit under somewhat sketchy circumstances), but is considered illegal by Spain’s national government and constitutional court. The national government’s response has been surprisingly harsh ("decisive," if you prefer), and it is difficult to see how any referendum is going to be able to go ahead in light of the measures taken to prevent it.

The Spanish position is one thing – what about international law? Catalonia’s counterargument to Spain’s constitutional court is basically that notwithstanding what the Spanish constitution says, settled international law – specifically consistent with Article I of the Charter of the United Nations and as affirmed in several international treaties – guarantees the right of "all peoples" to "self-determination." Are they right?

Well, I wouldn’t be typing this if the answer were a simple "yes," so you don’t get any points for guessing that the answer is "yes and no." Unsurprisingly, this aspect of international law is murky to the point where it’s probably fairest to say that it’s evolving. That being the case, to know what the current state of international law is, you have to know something about the history of the principle and its current trajectory. There are better places on the internet to read about that than here – but in my understanding the bullet points version is:

  1. There is clearly a recognized right to self-determination of peoples in international law
  2. There is currently no recognized right to unilateral secession by a people in international law; whatever "self-determination" includes, it doesn’t include "unilateral secession"
  3. A recognized exception to that previous point involves the right of colonies to break away from their imperial masters under some circumstances
  4. There seems to be an informal consensus that the Canadian Supreme Court’s 1998 ruling explaining why Quebec does not have a unilateral right to secede is the textbook document for the current understanding of what the law on secession is
  5. The countervailing principle in international law is "territorial integrity" – which seems to have expanded beyond defending stability in borders to defending stability in national continuity
  6. There is an additional tension between the way several resolutions are worded and the way they have been interpreted
  7. The case of Kosovo complicates all of this and may end up providing a foundation for an international recognition on a right to secede in the future

So, where does Catalonia sit with regard to this?

There’s no doubt whatever that Catalonians are "a people" with a comensurate "right of self-determination" for the purposes of international law. They speak an identifiable language, have an identifiable culture and historical heritage, have an awareness of themselves as "a people" and occupy a defined territory. Those last two points – self-identification as a people and "territorial integrity" – are actually the decisive ones; the previous two just establish that the self-identification is not arbitrary or opportunistic.

They are not, however, a colony. Catalonia joined Spain as part of a dynastic union with the Kingdom of Aragon at Spain’s initial foundation. It is recognized in Spain’s modern (1978) constitution as an integral part of the nation. It has recognized regional rights within that constitutional framework. Most importantly, that constitution was ratified with overwhelming support in Catalonia (as everywhere in Spain – including the Basque Country). In fact, popular support for it in Catalonia was higher than anywhere else except the Canary Islands. So, the colonial exception to the general understanding that there is no right of unilateral secession does not apply to Catalonia.

It’s worth noting here that even if Catalonia were to be considered a colony, it’s not clear that international law would sanction a unilateral right of secession. While a lot of international law affrims the right of colonies to secede from conquering empries, it doesn’t seem to apply in as straightforward a fashion to attempts to redraw the boundaries of post-colonial nations, unless there is significant repression of the subgroup in question. So, to take a counterfactual – imagine that India had remained a British colony right through the 1960s, when all of this was already established. International law would recognize a unilateral right to secede; Britain’s opinion would be mostly irrelevant. It would further recognize a right of Pakistan to partition off from India – if for no other reason than that there seems to be a lot of leeway to split up what imperial masters considered a single unit. But it might not recognize a right of "East Bengal" to split off from Pakistan and form Bangladesh. That, by contrast, depended on evidence of systematic discrimination against Bangladesh by Pakistand (and evidence in this case was clear). In general, international law seems to recognize a right of post-colonial nations to have a go at proving themselves before further splintering them – a principle created for the case of and frequently affirmed when settling issues in Africa. So, even if Catalonia were a colony – which it isn’t – it far from clear that it would have a unilateral right to secede.

There is a lot of tension in international law between clear wording, on the one hand, that would seem to affirm the right of any "people" (possessing some kind of territorial integrity) to decide to secede, and those actual cases that have arisen. For example, the Åland Islands, a monolingually Swedish region of Finland, has made moves in the past to join Sweden. When you sift through everything, the reason it is not is simply down to the fact that Finland has been highly accomodating of its regional status. It has a lot of autonomy within Finland, and this seems to satisfy its right to "self-determination" under international law. In general, the rule seems to be that you save territorial integrity for any nation that is functioning to the extent you can. If a region in an otherwise functioning nation seems to be distinct, there is an expectation that that nation reach some accomodation with it to ensure that it exercises some autonomy, but no expectation that this accomodation go as far as granting it independence. It is only when no reasonable accomodation can be reached – basically when the matrix nation is acting in clear bad faith – that any right of secession would be recognized.

Catalonia is currently trying to claim oppression on the basis of Spain’s over-the-top reaction to attempts to hold the referendum, but this is a smokescreen. In general, Catalonia is well-accomodated within the Spanish constitutional framework. It exercises broad autonomy over its institutions, having its own parliament, its own police force, its own financing and its own educational system – an educational system that promotes its language by using it nearly exclusively as the language of instruction. There is really no question of Spain being in violation of international law in allowing Catalonia "self-determination."

Where there might be a wedge issue is on the matter of whether to allow some referendum on independence at some point in the future. Currently, the Spanish constitution doesn’t allow this – but while international law doesn’t seem to require it, there does seem to be a consensus that it’s a good idea to allow distinct entities within a nation the possibility. What the Canadian Supreme Court found with regard to Quebec was not that Quebec had no right to hold a referendum on whether to secede, but rather that it had no right to hold such a (binding) referendum without first negotiating the terms with Canada. It wasn’t secession per se that was found to be unconstitutional, but rather secession "without prior negotiations with the other provinces and the federal government." Indeed, at least some of the ruling can be read to require the rest of the nation to negotiate in good faith with Quebec should a "clear majority" express a desire to leave:

The clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations and conducting them in accordance with the underlying constitutional principles already discussed.

They never say clearly that there is a right to hold a referendum on that question, but they do say this:

This observation suggests that other parties cannot exercise their rights in such a way as to amount to an absolute denial of Quebec’s rights, and similarly, that so long as Quebec exercises its rights while respecting the rights of others, it may propose secession and seek to achieve it through negotiation. The negotiation process precipitated by a decision of a clear majority of the population of Quebec on a clear question to pursue secession would require the reconciliation of various rights and obligations by the representatives of two legitimate majorities, namely, the clear majority of the population of Quebec, and the clear majority of Canada as a whole, whatever that may be. There can be no suggestion that either of these majorities "trumps" the other.

So, there is nothing illegal about Quebec "proposing" secession, and there seems to be something like a right to hold a referendum on the matter, provided that referendum is (a) clear and above board and (b) understood to be non-binding, a poll that opens Quebec’s negotiating position. The rest of the country would be obligated to recognize it only to the extent of being required to negotiate a way for Quebec to exercise more sovereignty in good faith, and independence would have to be on the table.

Spain is not Canada, and Spain’s constitution more directly addresses the question of secession by declaring Spain’s unity to be "indissoluble." Within the Spanish legal context, Catalonia has no path to secession. So, even more than in Canada, unlateral secession is off the table. That said, given the weight Canada’s clarification ruling on Quebec seems to have in international law, and given how well it fits into the backdrop of other resolutions and treaties on the subject, someone could make a cogent case that Catalonia has the same right to "propose" secession that Quebec has, and that should they do so, the rest of Spain would have to respond in good faith. And can I just add that personally, whatever the actual current state of international law, this seems morally right to me in any case.

All that said, it’s pretty clear that Catalonia’s current referendum should get no sympathy from the international community. Quebec held the referendum in 1995 because negotiations on ratifying the constitution had broken down. Its secessionist party won the provincial election with a clear majority and mandate. There was protacted discussion of the matter among secessionists, and everyone was clear on what they were voting for. The Canadian government majorly dropped the ball by not getting clarity on the implications of the vote before it happened, but we now know that privately their position was that the vote would not be considered binding, and in the event of a "yes" (VERY narrowly avoided in the event) Quebec would not leave Canada, but that the result would be respected by opening the process to amending the constitution to let them go on negotiated terms (no doubt with the secret intention of using the process to head off this outcome).

Puidgemont loves to cite the Canadian example as a reason Spain should let him hold this referendum, but it’s clear that the referendum Quebec held in 1995 for unilateral secession was illegal even in Canada. Moreover, given the esteem in which the case is held in international law, it’s fair to say that this is the going principle internationally as well. Unless you are (a) a colony asking for independence or (b) a recognized people who is being systematically denied any kind of self-determination, you cannot unilaterally secede. Any move toward secession has to be the result of good faith negotiations with the matrix nation. I think Catalonia has a case that Spain is not willing to negotiate in good faith as regards secession – but that alone does not allow them to hold a binding referendum on unilateral secession – at least, not so long as their other self-determination rights are as well-respected as they currently are.

In conclusion, from an international law perspective, Catalonia has a wedge issue and nothing more. The current state of international law doesn’t seem to offer them much support. That said, international law is a moving target everywhere – and especially on these issues, it seems – and the trajectory, given Quebec and Kosovo, is currently pointing toward eventual recognition of more secession rights. Catalans who want to leave Spain need to be careful, then. The world (quasi-)legal order depends too much on the principle of national integrity for anyone to be in a position to make unilateral secession a recognized right of self-determination any time soon. However, there does seem to be a growing willingness to recognize a right to negotiated secession, and along with it a right to petition for secession. If Catalonia plays its cards right, Spain could find itself the precedent-setting case for opinions on what counts as an allowed constitution – with the world coming down against theirs.

Fortunately for Spainish nationalists, the current Catalan government seems incapable of even sitting still at the poker table.

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