Catalonia: The Way Forward is Comparative Constitutional Rather than International Legal Argument

On 10 October 2017, Catalonia issued and then immediately suspended its declaration of independence, and urged Spain to negotiate. Spain does not want to negotiate. Rather, it sought clarification as to whether or not Catalonia’s manoeuvre indeed was a declaration of independence. Such clarification was needed, according to Spain, in order to decide on an appropriate response. Subsequently, Spain announced its plan to remove certain political leaders of Catalonia and impose direct rule on the region. The recent situation in Catalonia has already been addressed on this blog (see here and here). What is striking – or perhaps not – is how little international law actually has to say on secession and indeed even on statehood. Statehood is quite simply a politically-created legal status under international law. Catalonia is yet another proof that statehood is a complicated nexus of law and politics which cannot be explained by legal rules alone. International law merely delineates the field for a political game. Just as studying football rules cannot tell us which team is going to win – Barcelona or Real – studying the law of statehood alone cannot tell us how states emerge. We need to see the game played within certain rules. In this post, I will explain the international legal framework that defines the rules of the political game and argue that the game itself may be much more influenced by comparative constitutional rather than international legal argument.

Unilateral secession between Kosovo para 81 and Quebec para 155

In the modern world, new states can only emerge at the expense of the territorial integrity of another state (see here for details). The emergence of a new state is then a political process of overcoming a counterclaim for territorial integrity. Sometimes states will waive such a claim – the United Kingdom was willing to do that with regard to Scotland. Where the parent state does not waive its claim to territorial integrity, an attempt at secession is unilateral.

The international law on unilateral secession is determined by the Kosovo Advisory Opinion para 81 and the Quebec case para 155. It follows from Kosovo para 81 that unilateral declarations of independence are not illegal per se, i.e. merely because they are unilateral, but illegality may be attached to them in situations similar to Northern Cyprus and Southern Rhodesia. This is not the case with Catalonia. Pursuant to Quebec para 155, the ultimate success of unilateral secession depends on recognition by other states. This pronouncement may sound somewhat problematic in light of international legal dogma that recognition must always be declaratory. Where independence follows from a domestic settlement (e.g. had Scotland voted for independence in 2014), recognition indeed plays little role. But the Supreme Court of Canada was quite right that recognition is much more instrumental – even constitutive – where a claim for independence is unilateral.

The Kosovo and Quebec doctrines lead us to the conclusion that where the Northern Cyprus or Southern Rhodesia type of illegality is not attached to a declaration of independence, the obligation to withhold recognition under Article 41 ARSIWA does not apply, and pursuant to Quebec para 155 foreign states may grant recognition, taking into account the legality and legitimacy of a claim for independence. This means that foreign states could recognise Catalonia, but they are under no obligation to do so.

Since there is no positive entitlement to independence, the secession-seeking side does not have a vehicle on which it could attach its claim to move it forward and change the territorial status quo. This is not illegal under international law, but it is very difficult politically. It seems that extreme, i.e. ‘remedial’ circumstances would make independence more likely, but they would still not create an entitlement. Quebec para 155 refers to legitimacy of secession. This is, arguably, where ‘remedial secession’ could be accommodated. Remedial secession is not a self-standing international legal concept or a self-executing legal entitlement, but rather a political consideration when states decide whether or not they would grant recognition. As Malcolm Shaw noted already in 1997, it may well be that recognition would be more forthcoming in ‘remedial’ circumstances. The situation in Catalonia probably has not reached the ‘remedial’ threshold, but a suspension of autonomy, direct rule and more violence in the streets of Catalan cities would no doubt add to the legitimacy of the independence claim and gradually make recognition politically more likely.

The comparative constitutional argument kicks in

Professor Marc Weller on this blog helpfully refers to some democratic aspects of independence referendums presented in the Quebec case. A caveat applies that the Supreme Court of Canada separately considered the constitutional and the international aspects of secession whereas the democratic aspects of independence referendums were expressly based on Canadian constitutional law. The Court recalled that the Canadian Constitution is underpinned, inter alia, by the principles of democracy and federalism, which we cannot say of international law. The Quebec analogy in this part is rather a comparative constitutional argument which is nevertheless important as it influences the political game potentially leading to a new international legal status.

The Supreme Court of Canada noted that even where the right to independence does not exist, such a wish cannot be ignored in a democratic state. A clear expression in favour of independence creates a duty on both sides to negotiate their future relationship without a predetermined outcome (Quebec paras 90-95). A successful independence referendum therefore does not create a right to independence, but possibly only triggers a process of democratic deliberation. At the same time, independence referendums ought to be an instrument of deliberative democracy and not simple majority rule (Quebec para 76). This has implications for both sides. Spain should negotiate and Catalonia should be aware that independence is not the default setting of such negotiations. Both sides also need to take into account that there is strong opposition to independence even within Catalonia, and pursuant to the Quebec deliberative model the opponents of independence cannot be simply outvoted. It is true, however, that for the time being Catalonia has no one with whom it could practice such a deliberative process.

Conclusion

Catalonia does not have a right to independence, and at the same time it is not doing anything illegal internationally when claiming or declaring independence. For better or worse, this is everything that the international law of statehood has to say on the matter. The rest is a political game. There is the Quebec authority that in a democratic state a popularly-supported claim for independence cannot be ignored and creates a duty to negotiate. Such negotiations do not need to lead to independence. This authority is of comparative rather than public international persuasiveness, and should be taken seriously in a constitutional democracy.