The Catalonian Case in Canadian Perspective
David de Vries LLB, Law student, Amsterdam. Graduated AUAS 2016. Currently studying at VU University Amsterdam.
As I write this blog, there is a tense situation on the Spanish northern border. The Catalonian Parliament is currently debating whether to declare independence. How does international law facilitate a people striving for independence through secession, or not? In this blog for Medium, I will not give you that answer, because there are few straight-forward on the matter itself in international law. However, with the few materials available to me, I will give you some perspective. Why the Canadian Perspective? Some years ago, Quebec tried to secede from Canada. The Canadian Constitutional Court was called upon to give clarity in the issue.
Secession in the eyes of the Peace Palace
Kosovo, like Catalonia, also has striven for autonomy. It led to an Advisory Opinion from the International Court of Justice in The Hague. This Court not only settles disputes between States, but can also be invited to deliver just its opinion. The General Assembly of the United Nations for example is allowed to make such requests to the Court. The Court was invited to answer the following legal question:
Is a declaration of independence in accordance with international law?
Whilst there is a constant reference to treaty law in media, it must be noted that it is not the sole source of international law. It may also arise from customary law, in this case the behaviour of States in similar matters. The Court arrived at the conclusion that there is no prohibition of unilateral declarations of independence, because in spite of the fact that there have been many declarations of independence in the past centuries, there have been little responses from States that they consider declarations of independence as contrary to international law. The Court arrived at the conclusion that international law does not prohibit declarations of independence, because peoples in States have a right to self-determination. (Kosovo, 2010).
Okay, fine. So is anyone anywhere at all times competent to make a declaration of independence? We won’t find the answer to that question in the Advisory Opinion. The Court only held that international law does not prohibit declarations of independence as such. Van den Driest has critiqued this conclusion: the ICJ’s ruling is too uncertain: the ICJ did not precise the legal consequences of an unilateral declaration of independence. This is still left to be clarified. (Driest, 2011)
The Canadian Perspective: Secession of Quebec.
Quebec wanted to separate itself from Canada as well, likewise through a referendum. Article 1 of the United Nations Charter provides for respect for the right of self-determination of peoples, so this was the stepping stone for the legitimacy of the referendum. The Court started its analysis by answering the question if [the people of ] Quebec is a people in the sense of the right of peoples to self-determination. It deemed this analysis unnecessary however, because the right to self-determination simply encompassed the right of a colony to break away from the Imperial Power. The Court deemed this right irrelevant: Quebec is neither an oppressed people nor is it a colonial people. The Court only hinted towards recognition by other States as a form of de facto secession. (Reference re Secession of Quebec,1998)
With regards to Catalonia, there are no clear indications that Catalonians are oppressed or a colonial people. As such, Catalonia cannot claim the right of self-determination by unilateral secession from Spain. Recognition is also unlikely, since the EU does not support the Catalonian wish of independence. We can only hope that Catalonia can draw inspiration from the goals of peace and justice that international law aims for in the first place, and start a constructive dialogue with Spain.
Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion,, I.C.J. Reports 2010, p. 403 (International Court of Justice July 22, 2010).
Driest, S. v. (2011). Kosovo’s onafhankelijkheidsverklaring en het Internationaal Gerechtshof: een onzeker precedent. Ars Aequi, 11–19.
Reference re Secession of Quebec, , 2. S.C.R. 217 (Supreme Court of Canada August 20, 1998).