Catalan Independence: An international law perspective

Helen Taylor

On the 1st of this month 2.26 million Catalans voted in an “illegal” referendum to determine whether Catalonia should become independent from Spain. According to the government of Catalonia, 90% voted in favour of independence. The Constitutional Court had suspended the Catalan law holding that the referendum was to be binding on the grounds that it breached the Spanish Constitution of 1978, which refers to “the indissoluble unity of the Spanish nation”. Since the referendum the region has faced police violence and mass protest. This article gives a brief overview of the current situation and considers important questions regarding the nature of our rights to self-determination. The article uses international law in order to guide this discussion.

The question of Catalan independence has historical roots but Catalan nationalist sentiment was revived after the 1978 Constitution reinstated the regional autonomy that had been suppressed under the Franco dictatorship. Current constitutional arrangements allow the Catalan government powers over education, health, culture, urban development and the environment. Yet, many Catalans seek full independence owing to the fact that they feel a pronounced sense of cultural identity. Moreover, many hold economic grievances. For instance, according to the Spanish Treasury data, each year Catalonia pays around 10 billion euros more in taxes to the Spanish government than it gets back.

The position in international law helps us explore the question of whether Catalonia should have the right to independence. The ICJ has confirmed the recognition of the right to self-determination in international law on multiple occasions. For instance in East Timor (Portugal v Australia) [1995] it said the following:

"The principle of self-determination of peoples has been recognized by the United Nations Charter and in the jurisprudence of the Court… it is one of the essential principles of contemporary international law’.

It does not, however, follow that international law recognises an automatic right to remedial secession. Notably the Supreme Court of Canada in 1998 opined that

‘[T]he international law right to self-determination only generates, at best, a right to external self-determination in situations… where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development’.

This is supported in the Separate Opinion of Judge Cançado Trindade and Judge Yusuf in the ICJ’s advisory opinion on the Accordance with International Law of the Unilateral Declaration of independence in Respect of Kosovo [2010] which accepts as a matter of principle that secession could be available to a State but only in the case of oppression.

The above indicates that from the point of view of international law, the people of Catalonia do not have a right to independence. This appears at odds with the position of some political commentators. For example Owen Jones compares the situation in Spain to one of divorce. He explains that just as the question of divorce is up to each individual couple, it is up to the Catalans themselves to decide their own future. Is this, however, too simple? Traditionally self-determination has referred to the legal right of colonies to decide their own political future. The problem: Catalan is not a colony and so when we apply the logic of an absolute right to self-determination in such situations we run into problems. A position that allows any group of people within an area of a State to become independent if they so wish is unsatisfactory. The point is illustrated when we consider the economic structure of a nation, this structure often entailing a pooling and then redistribution of resources. Catalonia is already one of the richest regions in Spain but consider the hypothetical scenario that the region was  ten times richer than the rest of Spain and provided crucial economic support to the other regions. In such a situation would we really be able to accept the idea that Catalonia could declare independence and on a whim withdraw all of its economic support?  

Taking the above into consideration there is therefore some merit in having the oppression requirement when it comes to the right to remedial secession. Turning back to Catalonia, can we say that there is sufficient oppression? On the face of it: no. The region has its own language and its own government with various competencies. But do recent events change things? The unsettling images showing the Spanish police storming the polling stations in order to stop the voting has prompted mass outcry. Indeed one Spanish student told me that in his opinion the events of the 1st October have been the most serious for Spanish democracy since the Spanish coup in 1981. At the very least, scenes such as this and the discontent of the Catalan people demonstrate that the situation at the moment is far from satisfactory.  

Where does this leave us? The obvious  conclusion is that both sides need to establish a meaningful dialogue with each other. However it is also suggested that the Spanish government should be willing to allow Catalans to exercise their right to. (Should this say self-determination?--they already have democracy? or do you mean some intermediate state) If the people of Catalonia wish to show their desire for independence it seems against the spirit of freedom of expression and liberty to deny them. Thus the key issue is the legal significance of any such “expression” of a desire for independence. This is a difficult question to answer but it suffices to say that whatever the future of the Spanish nation, it is important that the Catalan people are able to retain their own “sense of independence”, whether this be inside or outside of Spain. Indeed if it gets to the point that this is denied, the Catalan government may be able to  overcome the current domestic constitutional barriers guarding against their ability to successfully declare independence for Catalonia by invoking their rights as recognized in international law.