Catalonia Independence, More Like Can’t-alonia: A Paper on the Validity of Catalonia’s Claim to Secession from Spain.

James LeGallais, Queens University.

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Introduction

This article seeks to address the question: Does Catalonia have a valid claim to become an independent state from Spain, and if so, is it likely to become an independent state? I will begin this argument by first giving a brief summary of the events surrounding Catalonia’s quest for succession. This article will then proceed to describe how both domestic and international legal regimes, to which Spain is a signatory, apply to Catalonia’s claim for self determination. I will demonstrate here that under international law Catalonia does have a valid claim to independence. However, the refusal of other states to recognize this bid for independence has made Catalonian independence impossible to achieve.

 

Exposition

The aspirations regarding Catalonia’s independence first began with the Spanish constitution of 1978 proclaiming the “indissoluble unity of the Spanish Nation”[1], while simultaneously recognizing that “provinces with a historic regional status may… form Self-governing Communities”[2]. This granted Catalonia the status of an autonomous community, and the Catalonian government in 2006 approved a bill, called the Statute of Autonomy, which sought to increase the autonomy of the region.[3]. This statute was found by the Spanish constitutional court to be largely invalidated, which gave rise to the large demonstrations seen in 2010.[4] This was followed by the Catalonian government putting forth the Act of popular non referendum consultations and other forms of citizen participation[5], which asked citizens if they wanted Catalonia to become a state, as well as if they wanted this state to be independent[6]. Despite the Spanish constitutional court holding a stay on all voting, on November 9, 2014 a majority of 80% Catalans voters voted in favour of these two questions, however they only made up approximately 40% of the population[7]. In response, the Spanish government decided to enact Article 155 of the 1978 constitution[8]. This article allowed the Spanish government to remove the Catalonian government and call for a new election to be held, jailing those who had attempted to instigate the referendum[9].

The independent sovereignty claimed by Catalonia and call for recognition by the international community was largely refuted by states and institutions, such as Germany, France, the UK and even the EU, who refused to recognize their claim[10]. However, some states such as Scotland, did recognize their claim and called for Spain to do the same[11].

 

Does Spain’s Domestic Law Support the Validity of Catalonia’s Claim?

The Spanish constitution, as mentioned above does give aspects of autonomy to “provinces with a historic regional status”[12], although it does not support Catalonia’s claim for independence. Article 2 of the constitution, states that autonomy of regions is recognized to the extent that it does not result in the divisibility of the Spanish state. These laws, despite the fact that since 2006 Catalonia has sought to enter into talks with the government concerning the ratification of a referendum, have invalidated Catalonia’s referendum[13].

 

Do International Legal Regimes Support the Validity of Catalonia’s Claim?

First, Spain as the signatory of many International Legal regimes which promote peoples right of self determination has an obligation to uphold the right to self determination. For instance, Spain as a member of the United Nations (UN) is a signatory of the UN charter, and as well has signed the International Covenant on Civil and Political Rights, and the 1993 Vienna Declaration and Programme of Actions which support claims for self determination. Although these documents are international customary law, and are nonbinding, they are considered laws which should be followed.

Secondly the reliance of the international community on the decision reached by the Supreme Court of Canada, in regard to Quebec’s referendum, furthers the validity of Catalonia’s claim for independence. The Supreme Court stated specifically that outside of exceptional circumstance, self determinism cannot trump territorial integrity unless there is a history of oppression or colonialism. They found it theoretically possible that oppression, or the prevention of a people from exercising their right to self-determination internally could give people the right to do so externally. Spain, in response to Catalonia’s claim for a referendum, continuously stayed proceedings and ultimately found any efforts for a referendum “unconstitutional”, deciding that their claim for “sovereignty was invalid and unconstitutional”. The Spanish President has on record stated he would reject the request for a referendum if put forward to the central government[14]. Furthermore, attempts by Catalonia to negotiate with the Spanish government in regard to the referendum were largely ignored. The findings from the Quebec Secession case, which has been relied upon in international law, demonstrates that Spain’s refusal to allow for Catalonian’s right to self determination only further legitimizes their external claim to sovereignty.

Thirdly, Catalonia’s claim for self determination is validated through their attempts to adhere to the recommendations put forward by the Venice Commission, which was largely prevented due to oppression from the Spanish government. The recommendations from the Venice Commission include: participation by the majority of voters which has a clear majority, both parties acting in good faith, and an obligation on both parties to agree upon the referendum process before hand[15]. Catalonia had tried to begin talks which were refuted by the government such as with the resolution 17X which was a resolution meant to spur a “dialogue with the Government of the Spanish State with a view to enabling a consultation on the future of Catalonia”[16] since 2006[17]. Secondly, Catalonia was not able to have a majority of 50% of the electorate vote in the referendum, although they did have a clear majority of over 55% of voters in favour of independence. The reason the majority of voters did not participate in the referendum can be attributed largely to the interference by the Spanish government. During the referendum Spain mobilized large numbers of police units to prevent the vote on the referendum from taking place and with the objective of maintaining the “rule of law”[18]. Police during the referendum seized over ten million ballot papers which were planned to be used in the vote[19], and closing ninety-two polling stations[20]. Additionally, over seven hundred people were injured as a result of police force, and the Spanish government had detained many junior politicians who they believed to have been complicit in promoting the referendum[21]. These instances demonstrate that Catalonia has attempted to adhere to the recommendations put forward by the Venice Commission, of which Spain is a member.

 

The Recognition of Catalonia as an Independent State

The International Court of Justice found no international legal obligation prohibiting declarations of independence. Meaning that even without proper legal recognition from Spain, or the ability to properly satisfy the Montevideo criteria used by many to determine statehood, Catalonia could still be considered a state in the international legal system given enough international recognition. However, Catalonia does not satisfy any of these conditions, and as a result any claim for independence or self determination will be impossible.

 

Implications of These Findings and Omitted Analysis

States should be cautious in refusing to acknowledge the right to self determination in other nations- specifically when it involves the constitutional blocking of that right. The continuation of this practice could potentially create a dangerous precedent of state practice to ignore considerations/ the recognition of peoples right to self determination when it is being blocked by the nation’s constitution. This is due to the potential for violence to erupt from the frustration of those who are attempting to, through legal means, make a legitimate claim to self determination, which are being consistently blocked by the government.

Secondly, the implications of this case are that Catalonia will likely find it impossible to gain autonomy unless there is a change in perspective of either the international system or the Spanish government. This is because without the recognition of members of the international system, who view this as an internal Spanish dispute, their only option is to put forward a request for a referendum to the government. However, despite their efforts since 2006 to enter into talks with Spain over the referendum, the government continues to deny their only legal route for the incorporation of a referendum. This meaning that in the foreseeable future, Catalonia will not have the ability to secede.

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References

“Catalonia’s bid for independence from Spain explained” (18 October 2019), online: BBC <https://www.bbc.com/news/world-europe-29478415>

“Catalan referendum: ‘Hundreds hurt’ as police try to stop voters” (1 October 2017), online: BBC<https://www.bbc.com/news/world-europe-41461032>

Council of Europe: Parliamentary Assembly, code of good practice on referendums, 25 October 2018, CDL-AD(2007)008rev-cor. <https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2007)008rev-cor-e>

Currie, International Law, 2nd ed. (Toronto: Irwin Law, 2014), 181.

Elena Holodny & Alexandra Ma, “Spain’s prime minister fires the Catalan government after it declares independence” (27 October 2017), online: Business Insider <https://www.businessinsider.com/spain-article-155-catalonia-independence-referendum-2017-10>

Elisabeth O’Leary, “Scottish lawmakers call for international recognition for Catalan independence” (2 November 2017), online: Reuters

<https://www.reuters.com/article/us-britain-scotland-catalonia/scottish-lawmakers-call-for-international-recognition-for-catalan-independence-idUSKBN1D20VN>

Frederic Berard & Stephane Beaulac. The Law of Independence (Toronto: LexisNexis Canada, 2017).    

Hannah Strange, “Spain’s constitutional court suspends Catalan referendum law” (7 September 2017), online: The Telegraph

<https://www.telegraph.co.uk/news/2017/09/07/catalonias-independence-referendum-intolerable-act-disobedience/>

James Badcock, “Catalan referendum: Spain battling to halt the vote” (27 September 2017), online: BBC<https://www.bbc.com/news/world-europe-41398627>

Parliament of Catalonia, Resolution 17/X of the Parliament of Catalonia, 13 March 2015, proc. 250-00226/10. <https://www.parlament.cat/document/intrade/9784>

Parliament of Catalonia, Resolution 5/X of the Parliament of Catalonia, 23 January 2013, Proc. 250-00059/10 and 250-00060/10. <https://www.parlament.cat/document/intrade/7176>

Shaw, Malcolm. “International law and municipal law”, (6 November 2019), online: Encyclopædia Britannica<https://www.britannica.com/topic/international-law/International-law-and-municipal-law>

“Spain Catalonia: Court blocks independence referendum” (8 September 2017), online: BBC       <https://www.bbc.com/news/world-europe-41196677>

Spanish Constitutional Act, 1978.

United Nations, Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001. <http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf>

UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: https://www.refworld.org/docid/3ae6b3aa0.html

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[1] Art. 2 C.E.

[2] Art. 143 C.E.

[3] Frederic Berard & Stephane Beaulac. The Law of Independence (Toronto: LexisNexis Canada, 2017) 110.

[4] Frederic Berard & Stephane Beaulac. The Law of Independence (Toronto: LexisNexis Canada, 2017) 110, 113.

[5] Ibid

[6] Ibid

[7] Ibid

[8] “Catalonia’s bid for independence from Spain explained” (18 October 2019), online: BBC

[9] Ibid

[10] Elena Holodny & Alexandra Ma, “Spain’s prime minister fires the Catalan government after it declares independence” (27 October 2017), online: Business Insider

[11] Ibid

[12] Art. 143 C.E.

[13] Frederic Berard & Stephane Beaulac. The Law of Independence (Toronto: LexisNexis Canada, 2017) 113.

[14] Frederic Berard & Stephane Beaulac. The Law of Independence (Toronto: LexisNexis Canada, 2017) 155.

[15] Council of Europe: Parliamentary Assembly, Code of Good Practice on Referendums, 25 October 2018, CDL-AD(2007)008rev-cor.

[16] Parliament of Catalonia, Resolution 17/X of the Parliament of Catalonia, 13 March 2015, proc. 250-00226/10.

[17] Frederic Berard & Stephane Beaulac. The Law of Independence (Toronto: LexisNexis Canada, 2017) 113.

[18] Elena Holodny & Alexandra Ma, “Spain’s prime minister fires the Catalan government after it declares independence” (27 October 2017), online: Business Insider

[19] James Badcock, “Catalan referendum: Spain battling to halt the vote” (27 September 2017), online: BBC

[20] “Catalan referendum: ‘Hundreds hurt’ as police try to stop voters” (1 October 2017), online: BBC

[21] Ibid