The Struggle of Independence for Catalonia

Catalonia struggled for its indepence from the 15th century and its constitution and autonomy was abbolished when it unsecussfully revolted against Spain in the mid of 17th century. In the 19th century the movement reemerged which continued to grow into the 20th century and more effects were made to revive the Catalan language so as to strenghten their dinstinct identity. By this in September 1932, the autonomy of Catalonia within the spain was established and it gained full autonomy in 1979. But in 2010, the Constitutional Court of Spain modified the Statue of Catalonia’s autonomy which ruled that Catalonia was not a nation even though Catalans could constitute a nationality. Current constitutional arrangements allow the Catalan government powers over education, health, culture, urban development and the environment. But still many Catalans seek full independence owing to the fact that they feel a pronounced sense of cultural identity. And many hold economic grievances. Like 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.1

On 1st October 2017, the people of Catalonia voted to separate from the Spain in an independence referendum which has been declared illegal by Spain. The members of the European Union failed to condemn the Spainish government who attempted to interfere with the referendum and engaged in tactics which some have criticized as repressive and shocking. The EU insisted that the referendum was an internal matter for Spain and the Spanish Constitution and the rule should be respected. One of the biggest issue for Catalonia when claiming independence is that, it is illegal under the Spanish constitution. Other main reason was the refusal of the Spanish government to allow a referendum to take place. The refusal by the government to accept the possibilility of Catalonia independence manifestly nagtes the idea of self-determination. These sort of denials by the governments can sanction the immutability of borders, and sentence millions of people across the world to remain permanently trapped under the jurisdiction of governments that they do not recognise.2 According to Article 4(4) of Catalonia’s Law on the Self-determination Referendum, the affirmative outcome of the October 1 referendum gives the Catalan parliament the right to declare independence.3

Under international law it seems very complex on the surface to answer the question on whether secession through a unilateral declaration of independence is legitimate or not. It is a question of both domestic constitutional law and international law. Court of Spain decided that the referendum was illegal. But the question here is that, is a host state’s approval essential if a country is to declare independence? The answer must be no, because to argue otherwise is contradictory with international law. Article 1.2 of the UN Charter4 recognises the principle of self-determination. The main or fundamental princple of the international law states that the state constitution’s provisions can not be deemed inherently legal and must equate properly with the international law.5

International Covenants on Human Rights guarantees the right of peoples to self-determination which also includes the right to freetly decide of its political status and the Spain is a party to it. This is universal in nature as it is granted to everyone which inclued also the people of Catalonia.6 The interventions of the Spanish police on October 1st referendum was a clear breach of the freedom of expression and assembly of the citizens of Catalonia which is granted to the inhabitants of Catalonia by the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and the European Convention on Human rights. The use of excessive force was also in violation of the right to life, the right not to be subjected to degrading treatment, to the right to liberty and security as well as other rights recognized in internatonal law.7 In the international law it states that the self-determination is the right of all people and they have the right to freely determine their right political status and pursue their economic, social, and cultural development. This safeguards the principle of teriitorial integrity. In the international law the application of the right of self-determination which was established in the UN charter, contravenes with the integrity og the sovereign states.

Legislation which was passed in the Catalan parliament on 6th September states that the outcome of the referendum is binding, and if it produces more affirmative than negative votes then this implies the independence of Catalonia. The legislation describes Catalonia as a social and democratic republic of law in which the people of the region are sovereign. It also says that the European Union and international law will continue to apply and defines the sovereign territory of Catalonia. It states that the EU rules which were in force in Catalonia when independence is declared will continue to apply under the same conditions established by the law of the bloc. It also says EU laws passed after an independent state is declared will be automatically integrated into Catalan law. International treaties which are signed by Spain are incorporated into Catalan law provided that they are considered compatible with application there. The Catalan government will decide within one year which treaties to authorize.8

The Prime Minister of Spain has announced that it will seek to activate Article 155 of the Spanish Constitution which allow it to take all necessary measures to ensure compliance with the law which also included the suspension of the self-government of Catalonia. This can give a meaningful reason to Catalan that it is been deprived from rights and would be easier for it to claim secess.9

The referendum of Catalonia has brought back the memories of Kosovo situation in 2008. Many criticized by saying that EU why they declared Kosovo’s secession from Serbia legal which violated the international law and the foundation of the European law but it failed to recognize the Catalan right to an independence referendum.Kosovo declared independence from Serbia in 2008. While Spain has not recognised Kosovo, 82% of EU states and 86% of NATO states have done so. That the US, UK, Germany, France and many others recognise the unilateral secession of Kosovo, but denied Catalans the same right which clearly showed that the political powers has much more to do than the legal or theoretical principles. Spain’s membership of both the EU and NATO means that it is being treated differently, and this lays bare a selective approach to international law. Claims by many that Kosovo deserved independence because its people had suffered a lot from the Belgrade government, is in itself a unconvincing argument. It can be argued that the states which has recognized Kosovo as an independent nation has breached the legal obligation to respect the territorial integrity and sovereignity of Serbia.10 The International Court of Justice in its 2010 advisory opinion on Kosovo have contributed to restoring the original scope of the right of self-determination. This rights includes the right to establish a sovereign and independent state enshrined in the Charter of the United Nations as interpreted by the Declaration on Friendly Relations and in the International Covenants on Human Rights to which Spain is bound and which it must perform in a good faith according to the article 26 of the Vienna Convention on the Law of Treaties.11

The international court of justice recognizes the right of self-determination for “the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation.” It also ruled out that internatioal law does not prohibit such declaration. The reason given by ICJ was that, that even though the UN Security Council issued resolutions condemning situations which involve unilateral declarations of independence, the resolutions condemned only the aspects of unlawful use of force or other violations of international law rather than the aspect of unilateral declaration. Therefore, Kosovo’s unilateral declaration of independence did not violate general international law. The ICJ found out that the documents did not prohibited Kosovo’s unilateral declaration of independence and hence ruled that Kosovo’s unilateral declaration of independence does not violate international law.

However, most of the international scholars agree that international law does not entail right to secession and it can only be tolerated in rare circumstances like in Kosovo and in Bangladesh. As Spain is a democratic nation which respects human rights and international (recognized righ to self-determination which leads to remedial secesssion) so the Catalan does not have International law based argument becasue the international law tolerates secession in extreme and rare instances. The situtaion of Kosovo has been different due to the fact that when Kosovo was the part of Serbia whch was under the rule of Slobodan Milosevic who engaged in brutal tactics to surpress an independence seeking rebellion brewing within Kosovo. Therefore, the international communities got involved like NATO led the air strikes, EU led administrative, security based and civil missions. Within a very short time it was recognized as a new state by many international communities like US, Germany, etc. but not by Spain. Many countries distinguish Kosovo as a unique situation which should not create any type of precedent in the international law. On the other hand Spanish government had never engaged in the violation of the human rights in Catalonia and the situation remained peaceful. Therefore, the international community has been involved in Catalonia and it remians an internal matter. Secession is only legal under International law if the parent states agrees to it. This usually happens in civil war. But the country usually prohibits the secession.

According to the section two of the Spanish constitution of 1978 declares that it is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards. So under the Spanish constitutional law it is illegal to claim independence. Unlike Kosovo situation where the constitutional framework for Kosovo UNMIK did not prohibit the declaration of independence, the referendum of 1st October 2017 is deemed unconstitutional under the Spanish Constitution.12 There is no legal basis to recognize Catalonia as an independent state under the international law because of the reasons like they had their representative in the central government, they were not oppressed, discriminated or colonised. Mere distinct culture does not contribute to right for self-determination under international law. Catalonia was not subject to any military or political occupation Catalonia was not subject to any military or political occupation so no international force was needed to liberate it. It was an internal affair and there was not any right to secced under international law for Catalonia.13

The Supreme Court of Canada analysed in the case of potential secession of Quebec from Canada that the “right to secession” only arises under the right to self-determination of a people under international law in three specific situations: -14

1.Where a people is governed as part of a colonial empire.

2.Where a people is subject to alien subjugation, domination or exploitation.

3.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 the international law has established that the right to self-determination of a people is fulfilled through internal self-determination in the absence of these situations.