Self-Determination as the Route to Independence? The Case of Catalonia

Self-determination is a principle used by many modern separatist movements as the legal basis for their claims to the right of political independence as nation-states (Fazal, 2018). This article will first identify what the principle of self-determination is within International Law. It will then argue that, following the 1998 Quebec Ruling in response to threats of unilateral secession of Quebec from Canada, the principle of self-determination has come to act as a powerful legal block against independence, in the context of nationalist movements seeking secession from democratic states. The case of the Catalan government's declaration of independence in 2017, citing the principle of self-determination, will then be used to illustrate how self-determination actually acted to legally undermine this decision.

Scottish Independence March in Glasgow [Photo]

Self-Determination in International Law

The principle of self-determination first emerged in the aftermath of the First World War, to encompass the creation of new nation-states in Eastern Europe and the Balkans arising from the dissolution of the large pre-war Empires of Germany, Austria-Hungary, Russia, and the Ottoman Empire (Philpott, 1995). However, it is clear that this principle did not extend to the peoples of the extensive overseas colonies of the victorious empires. Instead, it was not until 1945 that the principle was first enshrined in international law in Article 1 of the UN Charter, as one of the four key purposes of the United Nations:

“2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;”

However, despite its mention in the UN Charter, the principle itself remained undefined until the 1960 General Assembly Resolution 1514 “Declaration on the Granting of Independence to Colonial Territories and Peoples”. This Resolution became the cornerstone of post-Second World War decolonisation policy, addressing the growing number of overseas colonial-territories seeking legal recognition as independent states (Koskenniemi, 1994). Resolution 1514 defined the principle as:

“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;”

This definition was later confirmed in the 1970 General Assembly Resolution 2625 “The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States”, further cementing the principle into law. Despite this, these Resolutions left the "self-determination" principle very broad in scope and open to wide interpretation.

First Session of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States (1964) [Photo]

First, there is no clarity on what constitutes a community of “peoples”, leaving the interpretation to encompass anything from a state, nation or tribe to an ethnic, linguistic, religious or geographical group (Margalit & Raz, 1990). Furthermore, the point at which one of these community´s right to self-determination overrides the rights of another community is unclear - for example, the rights of those identifying with a wider nation-state community, over those identifying primarily with a smaller linguistic-geographical community within that same state (Quane, 1998). Secondly, there is no definition of when economic, social, and cultural development is considered "freely pursued", which barring obvious instances of oppression leaves the definition again open to conflicting interpretations.

Finally, how "political status" should be "freely determined" is not defined. An autocratic state imposing openly repressive measures to remove voting rights or powers of self-administration of a particular group may be in clear breach. However, the definition becomes blurred once it is determined a state is democratic, with nothing to specify at what stage of democracy the so-called "peoples" is considered to be free to determine their own political status (Margalit & Raz, 1990). This determination of political status is subjected to two main interpretations. The first is “external” or “national” self-determination, requiring that a community have their own independent nation-state to meet the right of self-determination – which is the ultimate goal of nationalist movements seeking secession (Margalit & Raz, 1990). The second interpretation is that of “internal” self-determination, in which a community´s self-determination rights are met within an existing state.

The Quebec Ruling – “Internal” vs “External” Self-Determination

The Canadian Supreme Courts “Quebec Ruling” in 1998 expanded on the GA Resolution 1514 to emphasise the supremacy of internal self-determination within a democratic state. This ruling stemmed from threats by the Province of Quebec to unilaterally secede from Canada, should it have won popular approval for Quebec secession in the 1995 independence referendum (Harris & Sivakumaran, 2015).

The Ruling first confirmed that "external self-determination" only remained a "right" for ex-colonies, or in special instances of oppression or denial of socio-political development. Accordingly, the use of external self-determination to legitimise decolonial secession was confirmed as an exceptional and unique circumstance within International Law, and not a general legal principle (Pentassuglia, 2017).

Figure 3 : Demonstrators Against Quebec Independence, 1995 [Photo]

The Quebec Ruling then emphasised that, as an autonomous territory within a democratic nation-state, Quebec was not being denied its right to self-determination, and hence had no right to secession solidifying the "internal" interpretation (Quebec Ruling, 1998). With the domestic legal context of the seceding entity the key-variable, for the argument of the right to external self-determination to be valid, it would first need to be proven that internal self-determination is unmet within the existing state. However, the court also ruled that some democratic legitimacy would be given to instances of unilateral secession that followed a clearly worded referendum voted for by a "clear majority" expressing a desire to secede. This means that, while the court did not rule unilateral secession legal, nor did it rule it completely illegal - with the democratic context needing to be taken into account. Consequently, Connolly (2013) argues the ruling was crucial in emphasising the importance of internal self-determination, but that it does leave ambiguities.

Clearly then, the principle of self-determination does remains open to interpretation on moral, political, and constitutive grounds (Philpott, 1995). That said, the principle has been fleshed out since its introduction into the UN Charter in 1945. The "external" interpretation was crucial in the process of decolonialisation. Yet importantly, outside this unique context, self-determination has largely fallen onto the side of the "internal" interpretation. Regardless, the "right" of "self-determination" remains the cornerstone of modern secessionist movements seeking to break away from liberal democratic states (Fazal, 2018).

The Legal Route to Independence? The Case of Catalonia

Over the last fifteen years, the Catalan independence movement, seeking secession from Spain, has greatly increased in prominence and support. This culminated in the heated and highly controversial 2017 independence referendum, held despite being declared illegal by the Spanish Supreme Court, with images of Federal Spanish Police attempting to violently disperse peaceful voters broadcast around the world (Bernat & Whyte, 2020). This was followed by a dramatic announcement from the Catalan government that declared unilateral secession from Spain in line with the Catalan people's right to self-determination, with the referendum claimed as evidence of the peoples will (Coleman, 2016). This section will analyse the legal validity of this declaration from the perspective of international law.

Figure 4 : Catalan Leader Carles Puigdemont Signs Declaration of Independnece, 2017 [Photo]

Since the end of Franco´s dictatorial regime, Catalonia has formed an "Autonomous Community" with a decentralised assembly as part of a democratic Spanish state under the 1978 Spanish Constitution. This autonomy was increased by the 1979 Statute of Autonomy granting Catalonia’s regional government a range of exclusive political, economic, and cultural powers, alongside regional education, policing, and healthcare systems – displaying a very high degree of internal self-determination (Guibernau, 2014). Further autonomy and "nation" status was granted in the 2006 Statute of Autonomy, approved by another popular referendum.

However, the Spanish Supreme Courts (SSC) 2010 amendment to this 2006 Statute sparked popular anger and increased support for secession, after striking down or limiting 36 of the statutes articles as unconstitutional under the 1978 Constitution, despite having already been approved by referendum and the Catalan Parliament and Spanish Congress (Coleman, 2016). Catalan nationalists claimed this amounted to judicial discrimination by the Spanish State whose objective was to prevent Catalan internal self-determination, which was argued under the Quebec Ruling to justify a right to external self-determination (Guibernau, 2014). Yet these claims of judicial bias were undermined by the SSC ruling in Catalonia´s favour in thirty-five out of thirty-eight cases from 2010 to 2013 (Minder, 2017).

Furthermore, Andrew Coleman (2016) argues the 2006 Statute´s recognition of a Catalan "nation" was clear in violating the 1978 Spanish Constitution´s promotion of Spanish unity, thus legally justifying the SSC amendments. Here the internal self-determination principle is supported by the stronger democratic legitimacy of the 1978 Constitutional referendum, in comparison to the weaker democratic legitimacy of the 2006 Statute referendum. The 1978 Constitutional referendum was voted in with an overwhelming 95% majority within Catalonia on a 67% turnout, fulfilling the "clear majority" clause of the Quebec Ruling (Coleman, 2016). By contrast, the 2006 Statute referendum, despite 74% voting in favour, was undermined by a turnout of less than 50% (Coleman, 2016). This would imply a clearer Catalonian popular mandate for the 1978 Constitution on which the SSC amendments were based, undermining legal claims of Catalonian self-determination being violated.

Figure 5 : Spanish Federal Police Confront Catalan Voters in Girona, 2017 [Photo]

Nevertheless, this amendment was a watershed for the independence movement, as support solidified until the 2017 independence referendum. This referendum was deemed illegal by the Spanish state, but the Catalan government proceded with it regardless and subsequently saw only a 43% turnout with most of the electorate refusing to participate (Ciprut, 2017). Yet the 90% who voted in favour of independence was used as the pretext for a declaration of unilateral secession by Catalonia’s leadership - claiming to act on behalf of the Catalan people (Coleman, 2016). The SSC ruled the referendum to have been in breach of constitutional law and basic parliamentary guarantees, and furthermore failed to require a minimum turnout that could enable a "clear majority" (Garrido-Muñoz, 2018). Although the Catalan government made an immediate revocation of the declaration of secession, its illegality in breach of the 1978 Constitution led to arrest warrants for Catalonia’s leadership (Fazal, 2018).

This SSC opinion is thus consistent with the Quebec ruling, especially with no clear signs of discrimination infringing Catalonia’s internal self-determination, and the low referendum turnout meaning there was no legal or factual basis for the Catalan leaderships claim to act on behalf of the "clear majority" of Catalan people. Indeed, with most European states actively condemning the Catalan secession and refusing to host the Catalan politicians that fled the arrest warrant, this has potentially put back the cause of Catalonian statehood (Fazal, 2018). This would reinforce that "internal" conceptions of self-determination remain dominant, and further cement that there is no "right" to external self-determination, especially as part of a democratic federal state (Garrido-Muñoz, 2018)

This case also proves that, in the event a peoples "internal" self-determination is proven be met, then the existing nation-state is under no international legal obligation to grant an independence referendum. The 1978 Spanish Constitutions emphasis on Spanish unity, in conjunction with Catalonia´s high level of internal self-determination, has provided solid legal grounds for denying a referendum. It is here that the principles of international law can find themselves clashing with the principles of democratic spirit – which in other democratic nation-states may have led to a legal referendum being granted to the Catalan people regardless.

Conclusions

Despite being frequently cited by secessionist movements in democratic states, the principle of self-determination is just as likely to be used as a powerful legal argument against independence. Self-determination, although open to interpretation, seems to have fallen on the side of "internal self-determination", acting as a powerful legal block against secession, as proven by the Court proceedings in Canada regarding Quebec, and Spain regarding Catalonia. That said, secessionist movements are afforded some legitimacy in seeking "external self-determination" in the form of independence, should they be able to mobilise a large enough segment of the electorate to vote in a referendum. Nevertheless, the case of Catalonia shows the existing state is under no legal obligations to grant such a referendum, with this issue then boiling down to moral or philosophical arguments of democratic spirit and legitimacy, for which existing international law has few answers.

Bibliographical references

Bernat, I. & Whyte, D. (2020) Spain must be defended: explaining the criminalization of political dissent in Catalonia, State Crime Journal, 9 (1), 100-117. Ciprut, J. (2017) The Kurdish and Catalan Referenda, Begin-Sadat Center for Strategic Studies, 463. Coleman, A. (2016) The Nature of Catalonia’s Claim to Statehood, Journal of the Philosophy of International Law, 7 (1), 39-46. Connolly, C.(2013) Independence in Europe: Secession, Sovereignty, and the European Union, Duke Journal of Comparative & International Law, 24 (1), 51-105. Fazal, T. (2018), Go Your Own Way: Why Rising Separatism Might Lead to More Conflict, Foreign Affairs, 97 (4), 113-123. Guibernau, M. (2014) Prospects for an Independent Catalonia, International Journal of Politics, Culture, and Society, 27 (1), 5-23. Garrido-Muñoz, A. (2018) Prime Minister v. Parliament of Catalonia, American Journal of International Law, 112 (1), 80-88. Harris, D. & Sivakumaran, S. (2015) Cases and Materials on International Law, (8th ed) Sweet and Maxwell. Klabbers, J. (2006) The Right to Be Taken Seriously: Self-Determination in International Law, Human Rights Quarterly, 28 (1), 186-206. Koskenniemi, M. (1994) National Self-Determination Today: Problems of Legal Theory and Practice, The International and Comparative Law Quarterly, 43 (2), 241-269. Margalit, A. & Raz, J. (1990) National Self-Determination, The Journal of Philosophy, 87 (9), 439-461. Minder, R. (2017) The Struggle for Catalonia: Rebel Politics in Spain, Hurst & Company. Pentassuglia, G. (2017) Self-Determination, Human Rights, and the Nation-State: Revisiting Group Claims through a Complex Nexus in International Law, International Community Law Review, 19 (4/5), 443-484. Philpott, D. (1995) In Defense of Self-Determination, Ethics, 105 (2), 352-385. Quane, H. (1998) The United Nations and the Evolving Right to Self-Determination, The International and Comparative Law Quarterly, 47 (3), 537-572.

Legal Cases & Materials

Charter of the United Nations (1945) 1 UNTS I, in: <http://legal.un.org/repertory/art1.shtml> [accessed 17/05/2022]. Constitution of Spain (1978) (1978), Article 141(1), 64, Agencia Estatal Boletín Oficial del Estado in <https://www.boe.es/legislacion/documentos/ConstitucionINGLES.pdf > [accessed 27/05/2022].

General Assembly Resolution 1514 (XV), Declaration on the Granting of Independence to Colonial Territories and Peoples (1960), G.A.O.R. 15th Sess., Supp. 16, in: David Harris & Sandesh Sivakumaran (2015), Cases and Materials on International Law, 8th ed., London: Sweet and Maxwell, 101-102.

General Assembly Resolution 2625 (XXV) The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (1970), in: David Harris (2010), Cases and Materials on International Law, 7th ed. London: Sweet and Maxwell, 911-914.

Reference re Secession of Quebec (1998), 2 S.C.R. 217, in: <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do> [accessed 22/05/2022]. Statue of Autonomy (1979), Section One: Powers of the Government of Catalonia, 9-28, in: <https://web.gencat.cat/en/generalitat/estatut/estatut1979/titol_primer/> [accessed 25/05/2022].

Statue of Autonomy (2006), Organic Act 6/2006 of the 19th July, on the Reform of the Statute of Autonomy of Catalonia, in: <https://web.gencat.cat/en/generalitat/estatut/estatut2006/> [accessed 25/05/2022].

Visual sources

Cover Image : Ramos, D. (2014) A man dressed in the Catalonian flag confronts officers as police move in on the crowds as members of the public gather outside to prevent them from stopping the opening and intended voting in the referendum at a polling station where the Catalonia President Carles Puigdemont will vote later today on October 1, 2017 in Sant Julia de Ramis, Spain [Photo], Getty Images, Retrieved from : https://www.cnbc.com/2017/10/01/catalan-referendum-riot-police-clash-with-voters-injuries-reported.html, last visited 02/6/2022 Figure 1 : Perry, R. (2019) Pro-Independence Marchers in Glasgow [Photo], EPA, Retrieved from : https://www.theguardian.com/politics/2019/may/04/glasgow-march-scottish-independence-under-one-banner, last visited 02/6/2022. Figure 2 : First Session of the Special Committee on Principles of International Law Concerning Friendly Relations and Co-operation Among States, Mexico City, Mexico (1964) [Photo], Retrieved from : https://legal.un.org/avl/ha/dpilfrcscun/dpilfrcscun.html, last visited 02/6/2022. Figure 3 : Kraft, B. (1995) Canadian Demonstrators Against Quebec Independence [Photo] Getty Images, Retrieved from : https://actualites.uqam.ca/2020/referendum-de-1995-la-fin-dun-cycle-politique, last visited 26/5/2022. Figure 4 : Catalan Leader Carles Puigdemont Signs Declaration of Catalan Independence (2017) [Photo], The Economist, Retrieved from : https://www.economist.com/europe/2017/10/12/the-spanish-government-calls-the-catalans-bluff, last visited 26/5/2022. Figure 5 : Ensesa, A. (2017) Voters at a school in Girona clash with riot police who were trying to seize ballot boxes [Photo], El País, Retrieved from : https://english.elpais.com/elpais/2017/10/01/inenglish/1506863181_245274.html, last visited 26/5/2022.