Author: Oto Šereš
In this case study, arguments for and against Catalonian independence will be presented. Both sides will be based on different interpretations of the right to self-determination held by peoples, in this instance the Catalonians. Specifically, it will be contemplated how far can one extend its application, and what are the claims that support a more democratic normative perspective as well as the legal one. The pro-independence perspective will take a normative approach and explore an interpretation of the right to self-determination which favors the aspirations of the independists. The anti-independence view will adopt a more legalistic perspective in shedding light on the Catalonian strive for independence in the context of international law. Before diving into the arguments, a short examination of the situation at hand will be given in order to provide a context for the perspectives themselves.
The tenuous relationship between Barcelona and Madrid has its historical roots in the beginning of the 18th century when Catalonia lost its independence in the War of the Spanish Succession. However, the current push for independence does not seem to stem as much from nationalistic reasons as it does from the general complications in negotiating with the Spanish government. After the return of Spanish democracy in 1977, Catalonia did not focus on political independence. Instead the main goal was to gain more autonomy for the region. However, it is possible to see a change in this trend in 2010, when the Constitutional Court of Spain evaluated the constitutionality of multiple articles of the Statue of Autonomy which was amended in 2006 to further expand the authority of Catalonia. As fourteen of the articles have been rewritten and twenty-seven reinterpreted, following a massive demonstration in Barcelona, demands for independence started to become more serious.
For an outsider it might seem that Catalonian demands for independence as well as the referendum in 2017 are purely the manifestations of nationalistic sympathies of local Catalonians. This picture, as idealistic as it is, seeking freedom and independence based only on identity, leaves out a few important parts. As (Serrano, 2013) contemplates the results of his research using multiple surveys: “The evidence points out that the relation between identity and support for independence must not be taken as necessary in the sense that it cannot be assumed as a function of exclusive identities following a simple ethnocultural pattern.” The connection between identity and support for independence is a significant one, however it is important not to overemphasize this significance.
A very similar conclusion has been reached by (Levrat et al, 2017, p. 41) when analyzing the results of the Barometer survey on justifying voting in a referendum on independence. It is noted that identity played a significant role in half of the respondents who would vote no. However, only less than a quarter of respondents who would vote yes justified their participation by pledging allegiance to their identity. The majority of them (29,40%) stated that greater capacity and a desire of economic self-management were their primary reasons. Therefore, there is a considerable legitimacy to a claim that Catalonian pro-independence demands for a referendum do no stem only from identity, but also from a democratic approach to secession stemming from a wider interpretation of the right to self-determination, which emphasizes the peoples’ “ability to freely determine their political fate and form a representative government” (Scharf, 2003).
It could be argued then that Catalans were not primarily aiming for independence, and only after the problematic constitutional ruling in 2010, they decided to adopt a more democratic approach to secession, claiming the so called “right to decide” about their political fate. Furthermore, by granting this right it is possible to see positive consequences on the state of democracy emerge, as they did in Scotland: “the referendum led to significant gains in regenerating local democracy, reinvigorating political debate and initiating a re-evaluation of Scotland’s relationship with the UK” (Calzada, 2014). In conclusion of the pro-independence perspective, it is worth noting that one of the reasons for the emergence of the independentism was also a grievance over the denied fiscal autonomy demands for Catalonia in 2012 (Sierra, 2017). Altogether, a stubbornness and unwillingness of the Spanish government to negotiate fair terms with Catalonia alongside a wider and more democratic understanding of the right to self-determination labelled the “right to decide” provide sufficient normative basis for providing Catalonia with a referendum on independence in order to bring closure and settle this dispute.
The anti-independence view
While the pro-independence view was based on an approach that blends the right to self-determination and the right to secession together and proposes a more direct democratic approach, the anti-independence view sees a clear divide between these two rights and uses an approach based on international law. In order to assess the Catalonian situation from legal perspective, a benchmark decision of the Supreme Court of Canada on the potential secession of Quebec from 1998 is used as a reference point.
One of the questions in the case of Quebec was concerned with exploring whether a right to unilateral secession exists under international law. The Court held that although the right to self-determination applies to all “peoples” it was not necessary to further determine who constitutes as the “peoples” in the context of Quebec because: “a right to secession only arises under the principle of self-determination of people at international law where “a people” is governed as part of a colonial empire; where “a people” is subject to alien subjugation, domination or exploitation; and possibly where “a people” is denied any meaningful exercise of its right to self-determination within the state of which it forms a part. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state” (Reference re Secession of Quebec, 1998). Therefore, it is worth exploring whether Catalonians constitute as the “peoples” who would have the right to secede from Spain.
In the Catalonian case it is certainly not possible to apply a colonial context and neither talk about a subjugation, domination or any of the other aforementioned limitations on Catalonians’ right to self-determination as “the Catalan have not been oppressed by Spain and have enjoyed meaningful internal self-determination rights” (Sterio, 2018). Therefore, what is left is the third option of achieving self-determination within the state which is supported by two robust arguments. The first refers back to the court decision and supports territorial integrity over the right to self-determination as: “a state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self‑determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states” (Reference re Secession of Quebec, 1998).
While the second argument follows the Section two of the Spanish Constitution which stresses the indissoluble unity of the Spanish Nation and the homeland of all Spaniards (Spanish Const., 2005). Therefore, even if we dismiss the argument about territorial integrity prevailing over the right to self-determination, it is possible to fall back on the third option in the first text cited from the court ruling on Quebec which refers to the achievement of the right of self-determination back to the state’s framework. In that case, considering the Spanish Constitution, the dispute is settled and Catalonians do not possess the right to secede.
Calzada, I. (2014). The Right to Decide in Democracy between Recentralisation and Independence: Scotland, Catalonia and the Basque Country, Regions Magazine, 296:1, 7-8
Levrat, et al. (2017). Catalonia’s legitimate right to decide. Paths to self-determination, Retrieved from http://exteriors.gencat.cat/web/.content/00_ACTUALITAT/notes_context/FULL-REPORT-Catalonias-legitimate-right-to-decide.pdf
Reference re Secession of Quebec, (1998) 2 SCR 217, 1998 CanLII 793 (SCC), <http://canlii.ca/t/1fqr3>, retrieved on 2018-11-21
Scharf, Michael P. (2003). Earned Sovereignty: Judicial Underpinnings, 31 DENV. J. INT’L L. & POL’Y 373, 373–79
Serrano, I. (2013). Just a Matter of Identity? Support for Independence in Catalonia, Regional & Federal Studies, 23:5, 523-545, DOI: 10.1080/13597566.2013.775945
Sierra, R. (2017, September 14). Catalonia: A push for fiscal autonomy, not independence [Blog post]. Retrieved from https://www.economicperspectives.co.uk/spain–the-catalonia-question.html
Spanish Const. (2005), Section 2
Sterio, M. (2018). Self-Determination and Secession Under International Law: The Cases of Kurdistan and Catalonia, Insights, 22:1