By Laurie Morgan*
On October First,
Catalans voted in favor of independence from Spain by a large majority in an
unofficial referendum. Those in favor of a Catalan state have cited a right to
self-determination as their legal basis to act.
Article 1 of the International
Covenant on Civil and Political Rights (ICCPR), which Spain is party to, describes
this right as held by “all peoples” to “freely determine their political status
and freely pursue their economic, social, and cultural development.” United Nations General
Assembly Resolution 1514 further elaborates on this description, and states:
“[a]ny attempt aimed at the partial or total disruption of the national unity
and the territorial integrity of a country is incompatible with the purposes
and principles of the Charter of the United Nations.” This commentary discusses
whether the right to self-determination can include a right to independence
despite tension with this principle of state sovereignty, and whether either
right is legally and practically applicable to Catalonia.
Generally, it is agreed
that the Catalans can be considered a people, and therefore subject to the
right of self-determination. While there is no codified definition for a people
in international law, the Permanent
Court of International Justice, and later the International
Court of Justice
(ICJ) have expressed that the following shared characteristics have importance
in determining whether a group should be considered a people: race, religion,
language, heritage; and a sense of unity by the identity of these factors. Although
Catalans share a dominant race and religion with their Spanish counterparts,
Catalans find unity in their own language and a heritage unique from Spanish
heritage.
While the right to
self-determination encompasses a right to free determination of political
status, this does not automatically permit a people to unilaterally establish
an independent state.
In its decision on the
self-determination of Quebec, the Canadian Supreme Court interpreted a
distinction between internal and external self-determination. According to the
Canadian Supreme Court, internal self-determination is the norm under
international law, while external self-determination, which would allow the
potential to assert a right to unilateral secession, is only available for the
most extreme of circumstances.
This distinction,
of course, begs the question: what are extreme circumstances? The ICJ has shed light
on this issue in its Kosovo opinion, which stated
“the international law of self-determination developed in such a way as to create a right to independence for
the peoples of non-self-governing
territories and peoples subject to
alien subjugation, domination and exploitation [emphasis added].”
On one hand,
Catalonia, like all other Spanish states, has long held a self-governing status
with Spain so it may not fall completely under the realm of complete
non-self-governance. However, Spain’s invocation of Article 155 of
the Spanish
Constitution,
which permits the national government to “take all measures necessary” in
limiting the autonomy of the self-governing states to protect the “general
interest of Spain,” has certainly enhanced the quality of the argument of the
Catalans seeking independence, who emphasize the difference between their
semi-autonomy and the complete autonomy they seek.
Still, in
practice, peoples subject to non-self-governance or alien subjugation have not
always been able to utilize a right to self-determination to enforce an alleged
right to unilateral independence. Realistically, Catalans seeking freedom from
alleged alien subjugation, domination, and exploitation have existing, legal
options aside of independence to solve these problems, some of which may be
better suited to the interests of independence-oriented Catalans.
For example, victims
of the police brutality which occurred on the day of the referendum have sought domestic judicial
remedies. If victims of human rights violations by the state of Spain satisfy
all domestic judicial remedies, they are entitled to seek justice from the
European Court of Human Rights.
Additionally,
remaining part of Spain may better suit the interests of Catalans. If economic
development is the independence movement’s foremost goal, independence would be
disastrous for Catalonia. Both the European Union and the European Free Trade
Area require unanimous agreement of existing parties to initiate a new state.
It is unlikely that Spain would look favorably upon the entrance of an
independent Catalan state into these agreements, especially because it would do
nothing to deter other Spanish
states
from looking to secede.
Other Catalans seek independence
for social and cultural reasons notwithstanding the potential economic blow
Catalonia would need to take. This faction recognizes that independence would
not necessarily solve their perceived social and cultural problems, but
believes that a chance at restructuring their governmental system would be
worth the substantial economic risk.
Looking forward,
relying on the right to self-determination could
work for Catalans, but the existence of domestic and international avenues for
the resolution of issues of subjugation and exploitation indicate that, in this
case, it would be difficult for this right to effectively override the
principle of state sovereignty. The recent success of the
pro-independence parties in the Catalan parliamentary election indicate that
this issue is far from resolved.
*Laurie Morgan is a first year law student at Georgetown University Law Center.
*Laurie Morgan is a first year law student at Georgetown University Law Center.
