Catalonia and The Right of Self-Determination

International Human Rights Law is concerned, above all with the equality and dignity of every human being. It, therefore, sets limits to the collective rights of both majorities and minorities, neither of which can be used to overrule the freedom and equal dignity of the individual.

Asbjórn Eide

On September 27th, 2012, the Catalan Parliament approved the holding of a referendum on Catalonia’s independence from Spain. Regional President Artur Mas has demanded that a referendum on independence be held in 2014; but thus far he has been unable to get the central government’s approval for such a vote. Some have suggested that Catalonia demands its independence under the international law right of self-determination.

The principle of self-determination is prominently embodied in Article I of the Charter of the United Nations. The right to self-determination is the right of a people to determine its own destiny allowing them to choose its own political status, and to determine its own form of economic, cultural and social development. The right to self-determination is also recognized in other international instruments, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

The right to self-determination is indisputably a norm of jus cogens, which are the highest rules of international law and must be strictly obeyed at all times. Additionally, both the International Court of Justice and the Inter-American Commission on Human Rights of the Organization of American States have ruled on cases in a way that supports the view that the principle of self-determination has the legal status of erga omnes. Ergas omnes obligations of a State are owed to the international community as a whole and, thus, may be seen as broader even than jus cogens.

Under present international law, the following four factors are relevant to answering the question of whether a “people” may achieve independence. These factors are: 1) location, 2) the will to exist, 3) denial of “internal” self-determination, and 4) brutal oppression. The fourth concept, brutal oppression, establishes secession as the remedial aspect of self-determination.

Location

The language “all peoples have the right of self-determination” has no territorial limitation, however, most scholars agree that “a people” must exist within a confined and established territory. The ICJ has found that groups found in East Timor, Western Sahara, and Palestine had a right to self-determination as peoples. The concept of location is not exact, yet its importance rests in localizing the will of all peoples concerned.

Will to Exist

“A people” comes into existence when a group asserts its will to exist and becomes aware of its identity based on given political considerations. If the majority of a group remains genuinely passive in safeguarding its identity, the group is not a bearer of the right to self-determination. Under international customary law, leaders of groups claiming self-determination on behalf of the group must actually represent the entire group and not merely factions or parties within the collective.

Denial of Self-Determination

Political rights, in particular the right to participate in elections—to vote and to stand for election—on the basis of universal and equal suffrage; to take part in the Government as well as in the conduct of public affairs at any level; and to have equal access to public service are essential to determine if the group within the larger region is deprived of fundamental rights. For minorities to participate effectively in public affairs, they must have an ability to express their opinions on decisions affecting them. This includes the right to participate substantively in decisions on the regional and national levels. To ensure such participation, states should reserve seats for minorities in decision-making bodies. Political representation without considering minority aspirations in the decision-making processes undermines the concept of self-determination.

Brutal Oppression

Brutal state oppression of its domestic groups confined within state borders results in a clear deprivation of the right to self-determination, and in questioning state’s borders. In the external aspect of self-determination, all peoples have the right to “determine freely their political status and their place in the international community based upon the principle of equal rights.” Minorities must undergo a parallel form of brutal oppression to exemplify characteristics of “a people” with a remedial right to self-determination. Without the total denial of “internal” self-determination, courts will stop short of examining whether a group constitutes “a people.”

Remedial Aspect of Self-Determination — Secession

Secession is the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state, with a view to achieving statehood for a new territorial unit on the international plane. Any claim of right to secede will be interpreted very strictly because if the right to secede were universal, the resulting fragmentation could undermine peace and security, and create several thousand independent states (some say as many as 5,000). However, remedial secession may exist for “peoples” under specific circumstances.

Secession over territorial integrity might be legally permitted under very narrow circumstances such as when a state (1) persistently refuses to grant participatory rights to a religious or racial group, (2) grossly and systematically tramples upon their fundamental rights, (3) denies the possibility of reaching a peaceful settlement within the framework of the state structure, and (4) commits gross fundamental human rights breaches.

Even if it is an option, the right to secession may be unwarranted if the state stops the discrimination and institutes legal remedies. In absence of concrete evidence showing human rights violations, and denial of participation in government rising to the point of calling into question the state’s territorial integrity, alternate modes of self-determination compatible with territorial integrity should be exercised. They may include enhanced local self-government in a demographic area, or union with confirmation of territorial unity.

The Case of Catalonia

To assert a successful claim of self-determination through secession, Catalonia would have to show that it had been the victim of severe current oppression.

The Catalans already have self-determination within the Spanish State. Spain is a democratic country in which Catalans have full and equal rights as Spanish citizens. Catalonia joined the Kingdom of Castile as a partner in Spain over five centuries ago through legitimate means. Although since then Spain has increasingly imposed itself on the administration of Catalonia, and Catalan language and culture have been banned for periods, Catalonia today enjoys autonomy within Spain, under a Constitution that was written by seven respected legal scholars, two of whom were Catalans. Catalan nationalists regularly win elections within Catalonia to govern Catalonia and to represent Catalonia in Madrid.

The current Catalan self-government is founded on the Spanish Constitution of 1978. This Constitution recognizes 17 autonomous regions. Autonomous Catalonia has a constitution of its own and is represented and governed, to a considerable extent, by the Generalitat de Catalunya, the regional “Government of Catalonia,” composed of a Parliament, a President and an Executive Council.

The powers of the Generalitat are exclusive, concurrent and shared. When it comes to exclusive responsibility – for example, culture, development of Catalan Civil Law and tourism – the regional government has both executive and legislative powers. The concurrent powers are those areas of competence in which both the state and the region have jurisdiction. As a rule, the central government establishes the basis for legislation and the Generalitat assumes the further legislative development and execution. Regarding the shared powers, the region can assume the execution of state legislation. The areas of the Generalitat responsibility embrace a wide sector of social life. The most important issues are: regional economic policy; regional planning, building and housing policy; energy and environment; culture and media; education, universities and research; public health and social services; tourism, leisure and sport; police and public order.

Although many Catalans may not be satisfied with the level of autonomy granted to Catalonia under the current constitutional regime, they are able to, and do indeed, affect change through constitutional and democratic means. The United Nations Charter sanctifies existing states except under extreme scenarios; if Catalonia cannot meet these legal standards, Catalan nationalists must find another means to achieve their goal of self-determination independent of the Spanish State.

In 2010, the Spanish Constitutional Court reached a decision regarding Catalonia’s autonomy charter, the Catalan Statute of Autonomy. The verdict came after four years of debate over the limits of Spain’s decentralized method of rule. The Catalan statute dates back to 1979, and a commission of the Catalan Parliament convened to reform it in February 2004. In their decision, the Court rejected 14 of 223 articles in a decision that otherwise approved the statute. In particular, the Court refused to acknowledge Catalonia’s self-recognition as a nation in the legal sense, emphasizing the “indissoluble unity of the Spanish nation.” Spain’s decision allowed Catalans to claim Catalonia as their nation in a historical sense, as the constitution still labeled Catalonia a “nationality,” but denied the attempt to create a legally recognizable nation.

Since the 2010 decision, a powerful nationalist movement has surfaced seeking to confer Catalonia legal nationality. Some argue that Catalonia’s governmental leaders might be utilizing the claim to self-determination as a political tool to distract from their bad management of resources in the region. Others claim that Spain is taking advantage of Catalonia’s resources, which constitute about 1/5 of the Spanish economy and failing to provide appropriate economic support to the region. Regardless of the position one takes on the issue of Catalonia’s independence under international law principles Catalonia does not appear to have a valid claim for self-determination as international law establishes express limitations on the exercise of minority rights and autonomy, amongst which the loyalty to the central government.

However, the question remains: Should an internationally recognized claim of self-determination be absolutely necessary for a region to secede? Can a region demand to be recognized by the international community as an independent country even if it does not meet the requirements for self-determination as of right? Should Spain’s central government do as England with Scotland, and allow for a referendum on the issue of whether Catalonia should become independent from Spain?

6 thoughts on “Catalonia and The Right of Self-Determination

  • October 14, 2013 at 6:01 am
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    I am surprised that after presenting the four options international law acknowledges for a people legitimately to attain independence, the author states quite bluntly that “Catalonia would have to show that it had been the victim of severe current oppression”. What about denial of Self-Determination, the third option? It would clear to me that the Draft Statute of Autonomy, adopted by 89% of the Catalan Parliament in 2005, was severely reduced by the Spanish Parliament in 2006. This explains the lukewarm response to the text when put to the referendum. But more serious still is the 2010 decision of the Constitutional Court. The treatment of the only surviving reference to the word nation in the preamble is a red herring. Even just commenting on the limited number of articles actually deemed unconstitutional is an utterly superficial reading of the decision, which holed the Statute below the waterline in essential aspects by offering skewed and restrictive interpretations.
    Catalans are systematically barred from top posts in politics and the judiciary. How many Catalan prime ministers have there been in the last 130 years for instance? And remember that eliminating Catalonia’s (limited) home rule which many sectors of Spain’s corridors of power increasingly call for as a solution to the current plan to hold a referendum, or poll, on independence, was one of the main reasons for the last war in Spain.
    The very refusal to allow Catalans to freely and collectively express their freedom of expression on the subject is, if maintained, a flagrant violatipn of a fundamental human right.
    Finally, many leading Catalans open claim that the Catalan people, under the present system, face complete – if gradual – assimilation and disappearance. Right now it is surprising that the aggressive offensive to destroy the main instruments of social cohesion in Catalonia has not led to violent opposition.

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  • October 15, 2013 at 11:41 am
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    Good article on basic overview of the law except it seems to only focus on black or white situations where oppression is clear. It does not appear to account for cases where oppressive acts that are done systemically and systematically within a seemingly democratic framework.

    If you examine Catalonia’s case carefully, you would find subtle and sometimes overt examples of long-standing oppressive treatment of Catalans. From denial of top posts except to those who fall in line with Spanish nationalist rhetoric and a stacked constitutional court of rightwing conservatives determined to limit democratically passed Statute of Autonomy, to outright musings of military intervention by Generals and even individual cases of people prosecuted criminally under trumped up cases simply for speaking Catalan to Spanish law enforcement within Catalonia. Not to mention subtle efforts to erode the linguistic autonomy in the Catalan government’s jurisdiction to have control over its own education system with the recent passage of education jaws meant to break up Catalan education (a more drastic version of which was imposed by the local branch on the Balearic Islands). The current Spanish Prime Minister and ruling party consistently rebuffs any offer to negotiate or compromise, condemns any attempt to do so, continues to provoke via Ministerial interference on regional jurisdiction, and refuses to sanction any party musings of military attacks on the Catalan people. Also, the economic crisis has provided a platform of re-centralizing powers from autonomous regions, especially from those the Spanish government believes are too strong.

    In many ways and ironically, the current Spanish rightwing government’s absolute majority in Parliament, coupled with its traditional disdain for Catalan rights from its Francoist origins, contributed to much of the current rise in secession sentiments.

    Either the law does not contemplate such scenarios as Catalonia where systemic and systematic oppression can occur within a democratic framework through a federal-regional structure, in which case it ought not to be disallowed simply because there might be no precedent, or the article failed to consider such analysis to take into consideration where facts do not fit neatly into the present legal jurisprudence.

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  • October 17, 2013 at 4:47 pm
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    International Law is very often about the balancing of competing interests–the issue of self-determination is an example in which those interests are even more in evidence. This is in large part due the passions that independence movements stir in the hearts of all those involved. Much blood has been spilled from Northern Ireland to South Africa in the legitimate yearnings of peoples to be free and independent.

    However, as Professor Rengel correctly attempts to do, these issues, when analyzed from a legal standpoint must be looked at with an intellectual rigor that is difficult to have as a proponent (or opponent) of independence for a particular territory or people.

    The international law is abundantly clear on several points. First, Spain as a sovereign nation has a right under international law to maintain its “territorial integrity” as set forth in the UN Charter. At the same time, the Charter also allows for the right of “self-determination of peoples.” The International Court of Justice in Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. 141 (ICJ 2010) in determining whether Kosovo’s Declaration of Independence violated international law discusses the difficulties of balancing these two competing interests in a post-colonial world.

    In the context of Kosovo, the Court found that the unilateral declaration of independence did not violate the law given the oppression suffered by Kosovo under Serbian rule, as well as the peculiar situation with the UN Mission for Kosovo (UNMIK) as a caretaker administration for the territory. However, the language in dicta in the opinions of Judges Cançado Trindade and Koroma clearly indicate the limits of the right to secede to peoples that have been subjected to particularly egregious violations of rights under international law. Judge Koroma argues that so readily attaching such a broad right of self-determination would do grave violence to the principle of territorial integrity and thereby to international law itself, in addition to opening a “Pandora’s Box” of secessionist claims. Catalans would have a very difficult time establishing egregious violations of their human rights.

    There is little doubt the people of Catalunya feel oppressed and that there may be instances of unfair treatment toward them, but that is not the measure under international law. As the Supreme Court of Canada has written in the context of the Quebec issue, internal self-determination is met by a people’s pursuit of political, economic, social, and cultural development within the framework of the existing state. Catalunya cannot claim a right to independence merely by refusing to negotiate terms of participation with the existing state. Feeling slighted, or even marginally excluded from the process is not sufficient to interfere with Spain’s right to its territorial integrity.

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    • December 16, 2013 at 12:05 am
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      You are basically saying that someone does not have the right to end an abusive relationship because of the legal right of the abuser to maintain its existence, since the abuse has not been “sufficient”. Maybe we need some common sense here. This conflict is not going to end one morning. It can only get worse until there is a split, exactly as if it were a personal relationship. We have to be pragmatic, for the good of all.

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      • December 16, 2013 at 1:26 pm
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        Mark, are you saying that International Law, and perhaps all law, should be disregarded whenever we do not wish to comply with it? As do so many in the Catalan independence movement, you choose not to address the issues from a legal standpoint. Might this be because the LAW does not support the desire of some in Catalunya to unilaterally and irrevocably break away from Spain. You, as well as the previous people who posted, do not cite a single example of an “egregious violation” (as that term is defined in International Law) of your human rights perpetrated by the Spanish State. It would be much better for the cause of Catalan independence for people to start thinking of actual legal arguments and not just bold statements and self-righteous platitudes in trying to convince the world that you truly merit self-determination under international law. I am not Spanish and could actually care less if Catalunya became independent, what I cannot fathom is simply disregarding the whole of international law because you say you want to be independent because you are culturally different; speak a different language; or pay more taxes, no matter how often or loudly you say it.

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        • December 16, 2013 at 8:28 pm
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          “Mark, are you saying that International Law, and perhaps all law, should be disregarded whenever we do not wish to comply with it?”

          No. It is obvious I did not say that. “Perhaps all law” is very offensive.

          “As do so many in the Catalan independence movement you choose not to address the issues from a legal standpoint.”

          Researching the internet until finding a blog post from an apparently neutral expert, reading the article and the comments is clearly addressing the issue from a legal standpoint, at least momentarily. As you may have noted, I am not an expert and my comment had more of a moral and practical nature. I think the article was open to a discussion not entirely tied to an strict interpretation of the law, specially for the final questions. Nonetheless, knowing it was not the best place to post it, I kept it short and to the point.

          “Might this be because the LAW does not support the desire of some in Catalunya to unilaterally and irrevocably break away from Spain.”

          I understand the word law, you don’t have to shout it in capital letters. “Some in Catalunya” might be a reference to a democratic majority and it is not something despicable. If the International Law does or not does support this desire is not as clear as you state it. There is no official statement.

          “You, as well as the previous people who posted, do not cite a single example of an “egregious violation” (as that term is defined in International Law) of your human rights perpetrated by the Spanish State.”

          You are reducing the matter to the validity of an abuse claim which, in an authoritarian position, you are not going to consider “sufficient”. Maybe it’s not that simple. A little more humility is desired in most discussions.

          “It would be much better for the cause of Catalan independence for people to start thinking of actual legal arguments and not just bold statements and self-righteous platitudes in trying to convince the world that you truly merit self-determination under international law.”

          Some experts do think of actual legal arguments, but the common people don’t, of course. I hope you don’t accuse all of them of being against the law. One can accuse people who participated on notorious civil movements of the last century in a similar way as you do. You can judge any comment as a bold statement and any moral consideration as self-righteous. But when you are doing this with a possible majority within a nation you are being insulting. What do you mean, “convince that you truly merit self-determination”? Merit? What does it mean you merit something? More importantly, what does it mean to say to a group of people they don’t deserve something?

          “I am not Spanish and could actually care less if Catalunya became independent”.

          Your comments have signs of strong emotion that are difficult to understand in this context. It could be because of a percieved offense against International Law. If this is the case, I apologise. It was not my intention to disrespect any law. If an international jury decreeds that Catalonia does not have the right to self-determination, I won’t oppose it. I’m glad you were instantly notified of a reply, you answered and we could sort this out.

          “simply disregarding the whole of international law because you say you want to be independent”

          I did question the morality of an interpretation of the law, which said “not sufficiently abusive”. I also considered it was not practical, which is a little stupid from a legal standpoint, I have to admit. But even if I had questioned the morality of a particular law, you could not accuse me of “disregarding the whole of International Law”. Questioning a part is different from disregarding the whole, except for a subject with manipulative intentions.

          Professor Rengel ends the article with three questions, the first one being “Should an internationally recognized claim of self-determination be absolutely necessary for a region to secede?”. I interpret this as an invitation, or at least as an open position to the possibility to discuss the matter without being constantly accused of disregarding the law or being a member of a group of horrendous people.

          “no matter how often or loudly you say it”

          It’s not about being right for saying it often and loud, as you want to imply, but about getting enough attention to discuss the matter internationally. Maybe some in the Ilustro Colegio de Abogados from Madrid would want to bury this discussion, but this can not be the solution.

          Reply

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