The Catalan Question

Relatively little progress has been made in international law on the subject of democratic secession by autonomous regions from nation-states. The principle of territorial integrity usually takes precedence over the right of self-determination, but that is because international law has wanted to prevent wars of aggression; invasion and occupations of nation-states by others, not principally to avoid democratic secession.

Even on the moral question of what right a people or region has to secede from a state, there have been few serious considerations. One general principle has been to imagine that the right of self-determination should rest with a determinable ‘people’ — a concept which has no accepted definition in international law and therefore remains more or less useless.

When considering the situation of Catalunya and Spain, a situation which is heading - inevitably it seems - for a head-on confrontation in October, we do not have much to go on. Perhaps it is time for serious thought to be given to these questions: both moral and legal. I am going to consider those aspects of the question primarily, before focussing on its political aspects.

Catalunya (I am adopting the Catalan spelling) is a region of Spain that has its own language, a long history as an independent state - and regional power - pre-dating the formation of modern Spain, a distinct culture, and its own parliament with a tradition dating back to the early middle ages, only interrupted by the 1936–39 Civil War and subsequent dictatorship.

Apart from biological identity, Catalans have a strong claim to forming what international law might consider a ‘people’. At least as strong as, say, Scotland, where a referendum on membership of the United Kingdom was allowed to take place in 2016, and where it is likely another one will also take place before 2025.

On what criteria therefore, should we identify a ‘people’ for the sake of deciding their right to self-determination?

It may be useful here to refer to the Capotorti definition of minorities, adopted by the UN OHCHR in 1992. This definition outlines a number of concepts which may be useful to the consideration of what constitutes a ‘people’ and a ‘nation’, in particular:

‘… that any definition must include both objective factors (such as the existence of a shared ethnicity, language or religion) and subjective factors (including that individuals must identify themselves as members of a minority).’ — Minority Rights: International Standards and Guidance for Implementation (HR/PUB/10/3)

Under this definition, it seems clear that Catalunya qualifies as a minority within the Spanish state thanks to its linguistic identity and the fact that a majority of Catalans think of themselves as being at least as much Catalan as Spanish, and a high proportion think of themselves as Catalan first of all. And of course that Catalunya is, under current arrangements, in a situation of relative impotence versus the central government in Madrid.

See, for instance: (this paper is now quite old, and pre-dates much of the recent independence movement in Catalunya. Were a similar survey conducted today I think it would be reasonable to assume an even higher level of Catalan self-identification).

But going from the definition of a minority to that of a ‘people’ or a ‘nation’ who might have a right to self-determination requires further steps.

In particular, should there be some definition of scale, or population size, or geographical and linguistic contiguity, or economic viability, that determines whether a minority group can claim to represent a people or nation?

The lack of a full definition of ‘people’ in international law, combined with the explicit protections of territorial sovereignty, have complicated efforts to establish a universal right to self-determination and have generally led to a presumption in favour of the nation-state’s right to deny a breakaway region’s right to independence.

Where independence movements have been supported, this has generally occurred in the context of de-colonisation and has not dealt with the breakup of European countries like Spain or the UK.

However, where independence movements have been considered from the point of view of international law, a test has usually been applied in connection with the principle of effectiveness — that is, whether the seceding region/newly independent state can meet the conditions otherwise required of nation states by the UN Charter and other treaties — and whether it can secure recognition by other nation-states to protect it from being re-integrated by the state from which it has attempted to break away.

As one of the richest and most productive regions of Spain, with a highly developed administration and infrastructure, as well as strong social protections, there is no doubt Catalunya could meet the first of these requirements. The second is harder. And here the internal dynamics of Spain and the EU will be decisive. Neither of them is favourable at the moment, or likely to be favourable in the long term, to Catalan independence.

But even though this might mean that, functionally, Catalunya would fail to secure widespread international recognition and therefore ‘effectiveness’ under international law, that is not to deny the strength of its moral claim to be a viable state and a legitimate political entity separate from Spain.

Indeed, it should be incumbent on parties seriously considering the question of democratic secession to consider the strength of this moral claim apart from the external political environment, where an independent state would otherwise be ‘effective’.

Of course this criterion could also be applied to the state that is being left, and the situation considered in reverse. But Spain is unlikely to fail to be effective as a state because Catalunya leaves. It may be poorer, but that does not interfere with Catalunya’s moral claim. Nor should it affect its legal right. Even if Galicia and the Basque region were to follow suit, as Madrid fears (though in my opinion somewhat unlikely), they would not render the rest of Spain non-viable or ungovernable.

Why should we grant a people the right to secede from a nation-state, and under what circumstances should it supersede the right of a nation-state to maintain its territorial integrity?

This question is largely answered as a result of the preceding considerations: where a ‘people’ or ‘nation’ within an existing nation-state meeting the above criteria (and clearly these would need much tighter definition and rulings on a case by case basis) and able to demonstrate its ‘effectiveness’ — notwithstanding interference from other states — consistently expresses a desire to vote on independence, it should be given that chance.

It is my personal view that Catalunya meets these conditions even more strongly than Scotland, and therefore the Spanish government ought to allow a referendum on Catalan independence.

If we are minded to accept the UN charter’s premise of the dignity of mankind, and the set of rights that are entailed by it (as described in the ICCPR) we understand the right to exercise a political choice as one of the most fundamental. The ICCPR does not define that right in great detail but refers only to the right to take part in democratic elections or ‘political participation’.

The right to vote on secession from a nation state cannot be a universal right. It can only be granted in circumstances where the people or nation seeking independence meet the conditions of effectiveness outlined above and the conditions of being a people or nation in the first place. But where they do meet those conditions (and again these are still to be defined) and have for some time consistently demonstrated a desire to take a vote on secession, they should have the right to do so.

Referenda, though, can be de-stabilising and their use ought to be carefully considered. If a referendum is held, and voters reject independence, it should be some time (at least a few years) before a new referendum can be granted, depending on the changing political circumstances of the state and its relationship to the region. That being said, referenda should not be used by independence movements only when the time is politically ripe for them (i.e. when polling shows a large majority in favour of independence). Some outside mechanism for the determination of timetables for referenda ought to be adopted.

What about the Spanish constitution, which sets a prohibitively high legislative bar on any attempt at secession?

The constitution of 1978 defines Catalunya as one of three ‘historical nationalities’ — this sounds quite ambiguous in English (‘historical’ can have the sense of something that has finished, something ancient or past) but in Spanish it is perhaps a more nuanced concept — ‘regiones históricas’ — precisely acknowledges the continuing importance of ancient national/cultural identities in the framework of, or in opposition to, the modern concept of the nation-state.

It is very clear though that the constitution of 1978 never seriously envisaged the newly democratic state giving independence to Catalunya, or any other autonomous region, and therefore includes extremely challenging parliamentary obstacles to secession. It is not realistic to expect the independence movement and its representatives in the Cortes ever to be able to overcome these obstacles as opposition from both main Spanish parties is fierce. Therefore appeals to the constitution on this point are merely a way of dismissing claims for the right to vote.

The constitution was framed in the aftermath of Franco’s death, in an atmosphere of extreme fragility and hostility between the opposing political parties. The military and security apparatus (as the attempted coup of 1982 showed) were and are still a hugely important factor, a shadow behind the visible democratic scenery, which had to be appeased and reassured if any deal was to be struck. This led to the ‘Pacto del Olvido’ (pact of forgetting) which effectively swept the crimes of the dictatorship under the carpet.

It is important to understand this history to appreciate how Spain’s constitution has come under increasing pressure as Franco’s rule has receded into the past and generations have grown up with no first hand experience of living under the dictatorship, even if their parents and grandparents have strong memories. This is not to deny the extremely dangerous and very real tensions that exist (and which have often been deliberately fed and preserved) in Spanish society to this day.

But at the same time, the constitution was born of necessity at the time, and reflects the circumstances in which it was drawn up. In the last 40 years things have changed considerably, and the document is showing its age.

In more recent times, it has to be understood that apart from resentment over the suppression of Catalan culture, language and autonomy during the dictatorship, Madrid has failed to grant greater freedom to Catalunya when it has been petitioned by the Generalitat (state government). Led by Jordi Pujol, Pascal Maragall, and later Artur Mas of the Convergència Democràtica de Catalunya (now PdeCAT) party, Catalan presidents have tried to gain concessions from both the PP and PSOE governments in Madrid.

In 2006 the statute of Autonomy under which Catalunya is governed was reformed, following an agreement between the Generalitat and the government of Spain. But the Partido Popular objected to 14 articles in the new statute, calling them unconstitutional. Although the bill passed through the Cortes and was signed into law, it was later (2010) revised by the constitutional court, which rewrote the 14 articles and also defined the interpretation of 27 more.

The impact of this decision has been to inspire a much more determined drive towards independence. Polling has revealed a steady and gradual increase in the number of Catalans wishing to vote in a referendum since the court revised the statute. And as Catalan politicians have felt compelled to respond to this movement, so Madrid has dug in its heels and denied any possibility of allowing a referendum to be held.

This is where all comparisons with Scotland end. Currently the (frankly, sinister) tone of rhetoric from Madrid is one of direct confrontation, criminalising Catalan institutions and politicians, and even dark mutterings about using any means necessary to block the referendum from taking place.

For their part, Catalan leaders are not in any mood to tone down the level of tub-thumping or to do anything to dampen the exuberant mood of the ‘independentistes’. There seems to be no prospect of anything other than an ugly confrontation taking place in October on or around the planned date of the referendum on the 1st of October.

It should also be noted here that Madrid has already penalised politicians including Artur Mas, Joana Ortega and Irene Arigau for organising a non-binding consultative referendum on the 9th of November 2014. They were given sentences involving ‘inhabilitació’ — of which (I don’t think) there is any direct equivalent in English law — basically preventing them from having any involvement in politics for the duration of the sentence.

Carles Puigdemont, Mas’ successor as President of the Generalitat, has continued to go down the path of seeking a referendum — first trying to reach some agreement with Madrid, and subsequently, when they rejected any possibility of allowing a referendum, declaring his intention to hold one anyway. In the meantime, planning and technical preparations have been made in case the vote is ‘Yes’, in which case the Generalitat will unilaterally declare independence immediately following the referendum.

Unfortunately, the political stars in the EU are not aligned favourably for an independent Catalan state. This is principally because Angela Merkel and Wolfgang Schaüble have relied heavily on Rajoy’s PP government to support their policy of austere fiscal rules and belt-tightening across the Euro Zone, in support for some help with resolving Spain’s banking crisis.

The PP is useful to Merkel and other EU leaders who see the need for a more solid fiscal compact between member states and tighter central regulation of member states’ budgets as a high priority. In exchange for supporting these policies, Spain’s government will clearly seek to block any recognition of an independent Catalunya at EU level, or even by individual member states.

The UK, mired as it is in Brexit negotiations, and realising at long last how negative the impact is going to be, is not in any position to offer recognition or support to Catalunya unless the EU has a major re-alignment.

The US is a completely unknown quantity, but it seems very unlikely that even Donald Trump would go so far out on a limb to support a newly independent Catalunya if it meant any kind of dispute with the EU.

Catalunya could find itself friendless on the international stage and facing enormous pressure from Spain and her EU allies. Of course, Putin may see a way, through this crisis, of further aggravating Berlin. But that would really be little more than a sideshow, and for Catalunya, falling into the ambit of Russia would be disastrous in the medium to long term.

So although there is a moral and even a strong legal argument that favours Catalunya’s claim to the right to seek independence from Spain, exercising that right will not be straightforward. Political alignments elsewhere in Europe will make it extremely difficult to achieve widespread international recognition. And without that, Spain will be able to exert heavy pressure on Catalunya following any declaration of independence.

That is not to say that Catalunya should not go ahead with its vote, and should not then declare its independence. It is just an acknowledgement that the path ahead may be littered with some major obstacles.

Part of me is hopeful that cool heads prevail and that, one way or another, a compromise arrangement can be reached which grants Catalunya greater autonomy within Spain. But that now seems unlikely. The independence train has already left the station and is heading straight down the track towards an oncoming locomotive.

Update: If you are really interested in this question and want to dive deeper into its moral, legal and political aspects, the full report of the expert commission who looked at these questions for the Generalitat is available at the link below. Some of it is quite heavy going, but it’s worth reading as a very well considered and comprehensive examination of these points, including a useful history of the development of this issue since 1978, a primer on Catalan politics, and all the main phases of negotiations between the Generalitat and Madrid :

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