—Milena Sterio, Cleveland-Marshall College of Law
The people of Catalonia voted on October 1 to secede from Spain. The Catalan independence referendum was heavily contested by Spain, which declared it unconstitutional, and which attempted to meddle, through security and police action, in the voting process itself. Despite reports of possible human rights violations by the Spanish authorities, the European Union failed to condemn the Spanish actions and instead continued to refer to Catalonia as an internal affair which should be resolved (presumably peacefully) through negotiation between the parties, and according to the Spanish constitutional framework. If Catalonia were to separate from Spain, it would accomplish this through a secession. Is secession ever legal, from an international law standpoint, or from a constitutional standpoint? And which authorities are to judge the legality and legitimacy of a secession: international organizations or only domestic ones? Is the case of Catalonia distinct from Kosovo, Kurdistan, Quebec or Scotland?
First, what does international law have to say about the lawfulness of secessions? International law bestows on all peoples the right to self-determination; throughout decolonization in the 1960s and 1970s, self-determination was one of the main theoretical vehicles utilized by colonized peoples to legitimize their quest for a separation from their colonizers. The right to self-determination is enshrined in the United Nations Charter, as well as in other treaties and documents, such as the International Covenant on Civil and Political Rights and the Friendly Relations Declaration. In the post-decolonization era, courts and scholars have distinguished between two different types of self-determination: internal and external. The former entails the establishment of an autonomy regime for the minority people, within the framework of a larger mother state. The latter entails a separation from the mother state, through the exercise of remedial secession. It is uncertain that the right to external self-determination truly exists in the non-colonial paradigm. The Canadian Supreme Court, in its famous Quebec secession opinion, hinted that it might, in instances of extreme oppression by the mother state. As of now, however, we have not witnessed any confirmed exercises of non-colonial external self-determination, and the dominant scholarly view remains that the right to self-determination, absent colonization or occupation, should be exercised in the internal manner. Even if one were to accept that international law may recognize the right to external self-determination in non-colonial cases of extreme oppression by the mother state, remedial secession is only the process through which external self-determination is exercised, not a right in and of itself. International law does not contain a positive right to secession, and some scholars have argued that international law merely tolerates secession in particular instances (like perhaps Kosovo).
Second, what about constitutional law? If secession is a matter of internal constitutional law, then arguably every state could have a different approach to secession, with some states allowing constitutional secessions, accomplished through legitimate referenda with significant participation rates, and other states disallowing secessions in all circumstances. In the cases of Scotland and Quebec, independence votes were conducted within a constitutional framework of their larger mother states, the United Kingdom and Canada, and presumably these larger states would have respected pro-independence referendum results. Spain has argued that the Catalan referendum is illegal under the Spanish constitution. Iraq has similarly argued that the Kurdish referendum was illegal. And Serbia denounced the Kosovar declaration of independence as illegal. Is there such a thing as legitimate v. illegitimate constitutional law? Is every democratic nation required, by some customary norm of comparative constitutional law, to have a particular constitutional framework which always allows peoples to freely express their political preferences through a referendum? If the answer to this question is yes, then Spain is wrong and the Catalan would have a constitutional right to an independence referendum. Under this approach, secession becomes constitutionally legal – a process guaranteed by every legitimate constitutional regime. If the answer is no and there is no uniform requirement of constitutionally-allowed independence referenda, then Spain could deny the people of Catalonia the right to have an independence referendum. While it is relatively easy to answer the international law question about secession (no, international law does not recognize a right to secession), it is much more difficult to answer the constitutional law question, in my humble opinion.
Third, which institutions are competent to judge the legitimacy of a proposed secession (and the independence referendum itself), and by which criteria? The international community and international institutions have gotten involved in the past – in the case of Kosovo, NATO led a series of air strikes against the Federal Republic of Yugoslavia, in order to halt the Serbian repression of a Kosovar independence movement, and then the European Union and other European and international organizations proceeded to engage in nation-building within Kosovo. As soon as Kosovo announced its unilateral declaration of independence, many in the international community accepted Kosovo as a new sovereign partner and essentially approved the Kosovar secession. With respect to Kurdistan, international authorities have been relatively quick to condemn the independence referendum. And, as mentioned above, with respect to Catalonia, the European Union similarly decried the independence referendum and encouraged parties to instead settle their differences within the Spanish constitutional regime. It appears that actors in the international community have failed to adopt a consistent approach toward secessions and attempted secession. If international authorities do not consistently pronounce themselves on the legality of a secession, then presumably this question is left for the domestic authorities, which may reach a particular result, either pursuant to their own constitutional framework, or pursuant to their own political and/or economic interests (which typically lead toward denouncing a secession attempt and toward arguing that the secessionist region should remain within the existing mother state).
Finally, is Catalonia more similar to Quebec and Scotland – cases of attempted secessions from a larger democratic nation, exercised through a referendum whose legitimacy seemed recognized by all parties? Or, is Catalonia more similar to Kurdistan, where the independence referendum was denounced by the mother state and by most in the international community? And what about the Kosovo “precedent” – a secession exercised against the wishes of the mother state but “blessed” by the international community? The answer to this comparative question may be found in the legitimacy of the mother state’s regime – that secessions may be recognized as legitimate by the international community if they are attempted through a constitutional framework with the blessing of the relevant mother states, or if they are attempted against a mother state whose regime is viewed as illegitimate by the international community. Thus, if Spain were to agree to a Catalan independence referendum, the Catalan secession may be viewed as legitimate (as was the case in Quebec and Scotland). However, if Spain does not agree to allow a Catalan independence referendum, then like in Kurdistan, the international community will likely continue to denounce the secessionist movement. Moreover, if Spain does not agree, the international community is unlikely to support secession because, unlike in the case of Kosovo where the Serbian regime was viewed as illegitimate, the Spanish central government is generally perceived as legitimate and worthy of international support and protection.
Suggested citation: Milena Sterio, Catalonia: Is There a “Right” to Secession? Int’l J. Const. L. Blog, Oct. 10, 2017, at: http://www.iconnectblog.com/2017/10/catalonia-is-there-a-right-to-secession/