Since the end of last year there have been a series of street protests[1] and digital petitions[2] circulating online calling for the creation of an independent Catalan State to be carved out of the Kingdom of Spain. The new State would be comprised at a minimum of the current Spanish region of Cataluña centered around Barcelona. There are political, social and historical arguments both for and against such independence. There are also serious questions about the scope or scale of any such independence (territorially speaking), how such a decision would be made, who would be nationals of the new State and about whether such a new State should be allowed into the European Union. This first post on the question of Catalan independence will address the preliminary issue of whether there is a right for Cataluña to secede from Spain and form an independent State. The analysis here will be in the context of secession and not “self-determination” as this second term has found its greatest application in the colonial context, which this s not.
An Brief Overview of the History of Cataluña
International law on secession requires a look to the historical situation of a territory and its people. For this reason, it will be useful to provide a basic overview of Catalan history before delving into the details of the legal regulation of secession.
Cataluña has always had an identity distinct from that of the central Spanish authorities in Madrid. Spain has always been blessed (and cursed) with a great linguistic and cultural diversity. Two northern regions have local populations that speak indigenous Iberian languages other than Spanish (Castilian), which is the local language of the regions around Madrid. The area around Bilbao in the north forms part of the Basque country[3] where the local language is one of the most unique in the world with no apparent relationship to any known language.[4] Likewise, the language spoken n the northeastern region of Cataluña is distinct from Spanish. Unlike Basque, however, both Catalan and Spanish are Romance languages independently descended from Latin. After the fall of the western empire the regions around Madrid and Barcelona formed part of different kingdoms and followed their own distinct historical paths. Cataluña only became part of what would eventually be known as Spain, the Kingdom of Castile and Leon, in 1469 when the crowns of Castile and Aragon were united with the marriage of Isabella and Ferdinand, the Catholic Monarchs. Spain itself would not be “united” until 1492 with the conclusion of the “Reconquista” and the defeat of the last Moorish kingdom of Grenada.
The relationship between the central authorities in Madrid and the people of Cataluña has not always been smooth, but for much of ther history together, the two regions mostly tended to their own affairs. The relationship between Cataluña and Castile began to erode as early as the 1700’s (if not before) due to increased tension provoked by Madrid’s attempts to centralize authority and the intervention of other European powers. Several wars were fought as part of larger European conflicts and tensions remained through the Spanish Civil War. The situation remained strained during the regime of Francisco Franco. Franco’s nationalist regime included campaigns to “spanish-ize” the region and reduce the influence and use of the Catalan language.
Legal Framework
Secession in cases where the “mother” country does not consent to the territory’s separation, outside of the colonial context, is not a common occurrence. As a result there are very few international decisions on the subject and even fewer that likely carry substantial legal weight. There are two judicial decisions, one international and one national, that are generally referenced when analyzing the issue of non-colonial secession and independence. These are the Aaland Islands Case and the Quebec Case.
The Aaland Islands Case is notable for its context in that the territory in question wanted to secede from a newly formed State that had just itself seceded from another State, namely Finland from the Russian Empire. The question of Aaland separation from Finland was referred to a panel of experts by the League of Nations, the UN-type body formed after the end of the First World War. The Aaland islanders, a predominately Swedish speaking people, wanted to leave Finland and join the Kingdom of Sweden. The islands had been part of the Russian Empire and administratively part of its Finnish provinces. The argument went that if Finland could secede from Russia, why could they not secede from Finland?
The expert panel responded by saying that secession would be possible but only if two conditions are cumulatively satisfied. These conditions were, in broad strokes, that the territory in question was well defined and that its people were the victims of systematized discrimination. While the panel felt that the Finns had a defined territory and were subject to discrimination by the Russian authorities, there was no evidence of such treatment of the Aaland Islanders by the Finnish authorities. Furthermore, the islanders were permitted to use their own language and were given administrative autonomy. Under those circumstances the panel felt that secession would not be appropriate.
The Quebec Case, heard by the Supreme Court of Canada, dealt with the right of Quebec to secede from Canada. Quebec is of course the primarily French-speaking region of an otherwise Anglophone country. The region has a different linguistic and cultural history from the rest of Canada and from time to time there is a flair up in nationalistic sentiment and talk of secession to form an independent State. The Supreme Court in hearing the case adopted the criteria of the Aaland Islands Case that in order to secede a group must have a defined territorial unit and that they people must suffer from persecution by the central authorities from which they would like to separate.
However, the court added another consideration that was not present in the Aaland Islands Case, that of democracy. The Supreme Court considered that participatory democracy and the full inclusion of a people and the territory would act as a cure legally removing the right to secede. Essentially, by having full participatory rights, if the people of a territory did not like the way they were being governed they could remedy the problem by modifying government policy with their votes. To have a right to secession in a democracy it would have to be shown that for whatever reason the ballot box is an inadequate remedy.
There are more recent occurrences of territories seceding or at least attempting to secede from an already existing State. Most followed wars and involved political interests of the surrounding States who afforded the new entity recognition. Examples include Bangladesh and South Sudan. The extent and type of the violence involved in these cases make them very different from that of the Aaland islanders or the Québécois. As such, these situations are also very different from the case of Cataluña. One might also be tempted to refer to the case of Kosovo and the recent decision by the International Court of Justice on the legality of the Kosovar declaration of independence. However, the situation in the ex-Yugoslavia at the time was very different from the present situation in Spain. Furthermore, the decision did not reach the issue of Kosovar independence but only addressed the legality of a declaration of independence under international law.
Under current law, in order to have a legal right to secession, Cataluña would have to demonstrate that its people are subject to discrimination by the central authorities, that they posses a defined territory and that any of their problems cannot be addressed by the curative effects of democracy.
Independence?
It is not my goal here to enter into a debate about the nature of the historical relationship between Cataluña and the rest of Spain, nor to debate whether there has been discrimination against the Catalan by the central authorities in Madrid. More importantly, I do not mean to pronounce on whether any historical discrimination has continued into the 21st century. I will assume for the sake of argument that such discrimination has taken place in sufficient amount to satisfy the standard set out by international law for this discussion, as I do not believe that the lack or presence of such discrimination is important.
The above discussion should make it clear, without too much discussion here, that Cataluña does not at present have a right to secede from Spain as far as international law is concerned. The territory is an administrative unit and it has a history of being separate within Spain. There is also the allegation that the central authorities have historically and continue to discriminate against the Catalan people. Whatever the truth to these statements, there is no one who argues that Spain is undemocratic to the extent of imposing the will of the central authorities on Cataluña without their input or ability to participate in the national political/policy decisions.
My question though is why does the existence of a democratic State mean that there is no right to secede? It is true that allowing territories to leave already established States on the will of a vote would lead to significant amounts of instability in the international community. But in a modern Europe that is ever more integrated across national frontiers, why not let them go their separate way and join the Union? In effect the changes would be more administrative than substantive. If the people of a territory with a distinct history and language wish to peacefully form their own State, the only reason not to let them quietly leave is adherence to an outdated view of State power. A compelling reason for disallowing such a separation is necessary where the State is at the service of the people and not the other way around.
We may in fact have such a situation here where other interests outweigh the right of a people to leave a State and form their own. Even though Europe is continuously moving toward a greater degree of integration, the system is not yet mature enough to cope with such a fundamental shift in its internal political boundaries and possibly continual shifts in national boundaries. The precedent would run the risk of setting off a cascade of secessions creating political and social instability accross the continent, the very thing the Union was designed to prevent. The international system, and the European one at that, are not stable enough to allow as a general rule anything but amicable separations. However, future events may change the situation.
[2] e.g., http://epetitions.direct.gov.uk/petitions/32321; http://elpais.com/elpais/2013/01/10/inenglish/1357847642_514841.html.
[3] The Basque country also includes part of southwestern France.
The {New} International Law 