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.
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.
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 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?