This is a response to the piece ‘International Law Pays No Homage to Catalonia’s Declaration of Independence’ written by Professor Julian Ku of Hofstra University Law School, published on the Opinio Juris website and available here.
Theodore Christakis of the University of Grenoble writes that “if a secessionist entity succeeds in fulfilling the conditions of statehood, a new state is born” and this is consistent with the claim from the quoted Chris Borgen who points out that secession has either occurred or it has not. And simply, I argue that as soon as a would be state has satisfied the four conditions of the Montevideo Convention (a stable population, a defined territory, a government, and external relations capacity) a new state has already been born in the fashion which Christakis is describing.
The threshold of the Montevideo Convention is so high, that to meet it alone virtually provides the existence of the new state. To me, Ku’s piece is highly disingenuous. Ku knows that secession movements never take place in amicable circumstances, because if the relationship between the parent state and the child state is amicable enough to have a straightforward secession, there would likely be no need to secede at all. It is just untenable to base the validity of secession movements on the very constitutions of the governments which are trying to keep child states from leaving.
Ku argues that “secession is only legal under international law when the parent state gives consent to secession”, however there is the technical point that the new state is consciously deciding to remove itself from the constitution in question. In other words, you cannot hold secession movements to the legal standard of the parent state, in the same way that you might hold a burglar to existing criminal statute because the secession movement itself is an explicit rejection of one of those constitutional values. If statehood is purely internal (and the Montevideo Convention states that it is) then Catalonian secession is not illegal.
Truly, we know that secession movements are more reliant on political than legal approval, and Ku himself acknowledges this when he writes “I am doubtful legality is decisive”. Indeed the law is forever subject to the ideologies of political parties and governments. So again, it is disingenuous to disqualify a secession movement on statute, whether national or international, because it is politics, and not the law which really decides the destiny of secession movements. And Governments use and abuse laws for their own purposes.
The Republic of Biafra was able to gather international support, but not enough, and not quickly enough: Nigeria today may have looked very different if the Republic of Biafra had the support of Egypt, South Africa, Germany India, and Japan, instead of the support of Gabon, Haiti, Ivory Coast, Tanzania and Zambia which it did. The Biafrans also had to fight the power of the British Government, which was absolutely determined that it not secede from Nigeria.
Simple politics is the reason why EU leaders were first deafeningly silent, and later stunningly ambivalent about the brutal treatment of it’s citizens as they stepped out to vote in Spain on October 1st. And all while blatant violations of Article 7 of it’s own EU treaty were being broadcast around the world. EU leaders understood the value of political support. They know the damage that outright condemnation of military and police brutality in Spain can do to the position of the Spanish Government in this case.
In his opinion piece Julian Ku uses a devilishly circular argument. Firstly, he posits that there is no ‘right to secession under international law’: that secession has either happened in fact or it hasn’t — yet he then argues that although there is a legitimate right to self determination under international law — and that Catalonia might even have that right — but the right of self determination does not create the right to secession.
The question we must then ask is, if the right to secession does not exist, how could the right to self determination ever invoke it?
Aha. As soon as we ask this question, it becomes clear that the decision to secede (or the ‘right to secede’ if you prefer) is an integral part of the right to self determination itself! For how could any parent state, prevent a child state which knew it had the categorical, internationally recognized right to self determination from seceding if the child state chose to do so?
If a parent state, or the international community were to do so, it would be an expression of political convenience, not legal soundness. And this is exactly what we are seeing.
In the same way that it is not for the people of Europe to insist that the European Union is satisfactory “on a basis of equality and without discrimination” to the people of the UK, it is not for the state of Canada to insist the same to Quebecois who have decided that they wish to secede. Under that logic, absolutely any authority could justify the violent suppression of would be secessionist movements on the constitutional tautology of its own proclamation of its own democratic adequacy and legitimacy!
In a strictly legal sense the claims of North Korean defectors that North Korea is democratically inadequate, should not be worth more than the Catalan claims of the same. Which a point that the Catalonians have been making, notwithstanding the level of autonomy which the Spanish government has granted them.
Sadly, Secession has today become about the political acceptance of the new state by the international community, but what it truly is, is the internal recognition of a new state, governing itself as sovereign, and with it’s recent referendum and parliamentary vote for independence, Catalonia has more or less reached that benchmark. As Article 3 of the Montevideo Convention states: “The political existence of the state is independent of recognition by the other states.”
Of all the reasons we can find against the creation of Catalonian Statehood, “there is no right to secession under international law” is surely the weakest.
Dami Olatuyi