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Home Sources of International Law Customary International Law Populist International Law? The Suspended Independence and the Normative Value of the Referendum on Catalonia

Populist International Law? The Suspended Independence and the Normative Value of the Referendum on Catalonia

Published on October 12, 2017        Author: 

In his speech before the Catalan regional parliament on 10 October 2017, the Catalan President Carles Puigdemont suspended a declaration of independence but stated that the referendum of 1st October gave the Catalans a mandate for creating a sovereign state. This post examines whether this assertion is borne out by international law. I submit that neither the Catalans and their leaders nor the central government act in an international law-free zone.

A declaration of independence would not violate international law

The International Court of Justice, in its Kosovo opinion of 2010, found that a unilateral declaration of independence does “not violate general international law” (para. 122) ─ if such a declaration is not “connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens)” (para. 81; see also paras 84, 119-121 on non-violation). The ICJ in that Opinion inverted the legal question placed before it (which had been whether the declaration of independence was “in accordance with international law” (para. 1)). The Court had also shied away from saying anything meaningful on secession (as opposed to the speech act of declaring independence). In result, the Advisory Opinion came out as a parsimonious if not meagre restatement of the law.

Disproportionate use of force (police and military) is prohibited by international law

However meek, the Kosovo Advisory Opinion is relevant for Catalonia also with regard to the prohibition on the use of force. The Court here said that “unlawful use of force” would taint a declaration of independence and make it violative of international law (para. 81), but did not say when such resort to force would indeed be “unlawful”. Also, the ICJ did not say whose use of force although it probably had the separatists themselves in mind.

I claim that Spain is not allowed to use disproportionate violence against separatists. Surely, there is ─ under the law as it stands ─, no general ius contra bellum internum. The prohibition of the use of military force (as enshrined in Art. 2(4) of the UN Charter and parallel customary law) normally applies only in the relations between states. In addition, the use of military force is prohibited in constellations of “green lines”, among stabilised de facto regimes, or when a Security Council resolution specifically prohibits resort to force, or where separatist armed group and a central government committed themselves not to use force in a treaty of armistice (e.g. as in Georgia in its relations to separatist Abkhazia and South Ossetia). (See for this legal proposition GA Res. 2625 (XXV) of 24 October 1970: “Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect”; the Eritrea-Ethiopia Claims Commission, Partial Award, Jus Ad Bellum, Ethiopia’s Claims 1-8 of 19 December 2005, para. 10; Independent International Fact-Finding Mission on the Conflict in Georgia, report (‘Tagliavini-Report’) of September 2009, Volume II Chap. 6, at 239-241 and 291).

But this does not mean that the parent state may repress a rebellious or secessionist group by police or military action without legal constraints flowing, inter alia, from international law. Internationally recognised human rights constitute the yardstick in constellations of internal unrest below the threshold of non-international armed conflict (cf. Art. 1(2) AP II of 1977 to the Geneva Conventions of 1949). Should the situation in Catalonia escalate to a NIAC, the pertinent rules of international humanitarian law will apply.

No “remedial secession” here

Finally, just a reminder that the preconditions for tolerating an extraordinary remedial secession are not satisfied in the case of Catalonia.

Most observers accept the Catalan proposition that they form a “people” in terms of international law which is entitled to self-determination and which could constitute the “personal” element of a new state (consisting of a people, a territory, and a government). This self-constitution must be expressed in a “free” way (cf. common Art. 1 of the UN Human Rights Covenants of 1966), and this is where procedural standards kick in. For a political actor and potential holder of the collective right to self-determination to lawfully exercise an extreme form of the right to self-determination (namely to secede), both material and procedural conditions must be fulfilled.

In its decision on the question on the secession of Québec, the Canadian Supreme Court recapitulated the state of international law of the 1990s (Reference re Secession of Quebec, [1998] 2 S.C.R. 217) of 20 August 1998). First of all, the international right to self-determination of peoples (cf. Art. 1(2) of the UN Charter and the mentioned common Art. 1) must be exercised in an “internal” fashion, that is through arrangements of political participation and representation within the framework of an existing territorial state) without touching the state’s territorial integrity. The Canadian Supreme Court then mentioned three (more or less well defined) contexts in which the international right to self-determination of peoples could be exercised “externally”, potentially meaning secession. Besides colonial self-determination and other “alien subjugation, domination or exploitation outside a colonial context” (paras 132-133), the Court named “remedial secession” ─ but left explicitly undecided whether this was covered by international law as it stands:

Para. 134. A number of commentators have further asserted that the right to self-determination may ground a right to unilateral secession in a third circumstance. (…) [T]he underlying proposition is that, when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration requirement that governments represent ‘the whole people belonging to the territory without distinction of any kind’ adds credence to the assertion that such a complete blockage may potentially give rise to a right of secession.” Para. 135: “Clearly, such a circumstance parallels the other recognized situations in that the ability of a people to exercise its right to self-determination is somehow being totally frustrated. While it remains unclear whether this third position actually reflects an established international law standard, it is unnecessary for present purposes to make that determination (emphasis added).

I personally lean towards the view that remedial secession is nowadays part and parcel of international law, not as a right but as a legal “defence”, or as a moral (as opposed to a legal) right of resistance or a means of revolution. In any case, the degree of “exploitation” that the Catalans seem to be suffering is not sufficient to justify such a legal defence, at least not without further negotiations which are now under way.

Referendums as a procedure to exercise the international right to self-determination

In the Catalan independence referendum of 1st October 2017, 96 % voted for independence, but with only a 42 % turnout. Such resort to a referendum has followed a meanwhile familiar pattern, well established in the post-1989 era of great territorial realignments, marked by the dissolution of the Soviet Union and the Socialist Republic of Yugoslavia on the one hand, and the deepening and widening of the European Union on the other hand. Almost all of these events were prepared, accompanied, and justified by referendums, often formally binding ones, sometimes only consultative, but followed by the governments involved.

Prominent examples are the Ukrainian referendum of 1 Dec. 1991 (which inaugurated the “parade of sovereignties” of the Socialist Soviet Republics), the no-vote of the French and the Dutch on the European Constitutional Treaty in 2004 (which killed the Treaty), the referendum on independent South Sudan in January 2011 (which led to the creation of a new state now fraught with civil war), and the referendum on the transfer of Crimea from Ukraine to the Russian Federation in 2014 (which occurred under gun-point of Russian soldiers and was declared null and void by the UN General Assembly (Res. A/68/L39 of 27 March 2014, para. 1)). Famously, Opinion No. 4 of the Badinter Commission on Bosnia-Herzegovina asked for a referendum as a pre-condition for the recognition of a new state by the European Community (repr. in ILM 31 (1992), at 1501-3).

Asking the people to decide directly on founding a new state (Kurdistan), on splitting off from a state (Catalonia), or from a highly integrated polity (UK), seems democratic at first sight. But what about the international rule of law? I am deliberately writing “international”, because the constitutional admissibility or inadmissibility of the referendum is irrelevant here. It is typical that territorial referendums conducted in the exercise of the right to self-determination are unconstitutional under the law of the parent state. For example, prior to the Lithuanian referendum of 9th February 1991, then president of the Soviet Union, Gorbachev, had declared these referendums illegal and their result void. Nevertheless, the European Community and numerous other international actors welcomed the decision to hold referendums on Baltic independence (i.e. their restoration of statehood).

It is controversial whether a customary law requirement to hold a referendum already exists as a matter of hard international law. But the legal status of requirements on the modalities of territorial referendums are independent of the question. In any case, a conditional scheme applies: even if there were no international law obligation to organise a referendum, international law still regulates its modalities and procedures. Notably the Venice Commission (here, here, and here) and the Council of Europe’s Parliamentary Assembly have established “soft” international standards on referendums as a form of exerting direct democracy, including territorial referendums, e.g. the one in Montenegro (2006).

These procedural requirements can be summarised as follows: Use of force is prohibited, while peaceful and democratic procedures are prescribed. One of the appropriate procedures is notably recourse to a free and fair referendum on independence or a democratic election, ideally under international supervision (cf. the written statement by Switzerland in the Kosovo proceedings before the ICJ, of 17 October 2008, paras 69-80).

To conclude, even if a (properly conducted) independence referendum might be a necessary precondition for lawfully asserting the independence of Catalonia, it is not a sufficient condition under international law. But this does not entitle the Spanish government to use disproportionate physical force to discipline the Catalans.

The populist politics of referendums

Despite their facial legal appeal, resort to referendums in matters of international law is deeply ambivalent. Reliance on a popular vote on territorial realignments has often been used as a populist device, prone to manipulation and demagoguery. In the context of the dissolution of the Soviet Union and Yugoslavia, the outcomes of the referendums basically always followed ethnic lines. The votes seemed to perpetuate and even reinforce illiberal democracies, based on ethnically homogeneous peoples. The classic international legal term was, not coincidentally, “plebiscite” (as opposed to the modern term “referendum” which was mainly introduced by the United Nations in the decolonisation context). The term “plebiscite” clearly has the negative overtone of populism.

I have myself consistently defended referendums (or other mechanisms of democratic decision-making) as a procedure for territorial realignment. It is surely preferable to determine the territorial contours of a polity on the basis of the consent of the governed following public debate among all affected groups, not on the allotments made by hegemonic powers on the drawing board or in green rooms. But we must not forget that the referendum was first of all designed as a procedure to confirm, define, or reject the drawing of a boundary where the basic decision that there should or could be an international boundary was already agreed upon (such as in the case of the Scottish referendum based on an agreement between the British and the Scottish government).

This was the Wilsonian inception:

And there is a deeper thing involved than even equality of right among organized nations. No peace can last, or ought to last, which does not recognize and accept the principle that governments derive all their just powers from the consent of the governed, and that no right anywhere exists to hand peoples about from sovereignty to sovereignty as if they were property. (Woodrow Wilson, Address of the President of the United States of 22 January 1917, p. 6).

In reaction to this Wilsonian claim, there has been some controversy in international law on a possible requirement of a referendum. But that controversy related to territorial changes consented to by the governments involved. Put differently, the question was only whether a given executive consent needed to be supported by an additional popular consent. This structure of the debate had to do with the fact that the early referendums after 1914 only related to cessions, i.e. to transfers of territory on the basis of international treaties between the states concerned. The second type were decolonisation referendums on the legal basis of the colonial right to self-determination, where the release into independence in the end also happened with the consent of the then-colonial powers (not against their will). Only after 1989, most referendums accompanied the dismemberment of a state (the Soviet Union, which disappeared as a subject of international law), or successive secessions (the case of Yugoslavia).

Granted, the formal distinction between consensual and non-consensual territorial re-ordering is eroded in practice: The breakup of a state or the breakaway of a part of its territory normally is a protracted process during which the political attitudes of the actors, including that of the central government, change. For example, the Soviet Republics initially declared their independence against the will of the central government, but in the end that central government agreed. The same is true for all cases of decolonisation, likewise for the splitting off of South Sudan from Sudan in 2011, and arguably even for Yugoslavia.

Now can we say that once we accept a requirement of a democratic justification, this rule must extend to all types of territorial changes, especially against the background that a neat categorisation is not possible in practice? I have defended this position in the past but I am not so sure anymore. Where there is no underlying political acceptance, also among the other populations who will be directly affected by a secession (and who should therefore also have a say on the matter), e.g. the Spanish people, a territorial referendum seems more populist than democratic.

 

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12 Responses

  1. Miroslav Baros

    Many thanks Professor Peters for this very good and pretty comprehensive outline of the issue. May I offer a slightly different perspective for the sake of further discussion. I am not sure about others, who often claim there are “uncertainties” about the so called “right” to self-determination; to me there are no uncertainties; everything is perfectly clear and precise actually. A principle that emerges from several major episodes (Badinter Commission; the Kosovo episode, the Kurdish people) I am summarising in my message to the Catalans as well as any other group contemplating to invoke the “right” to self-determination in similar circumstance: you will have to give up because the democratic world cannot afford the luxury of entertaining your claim since it implies that oppression is even theoretically possible in democracies as well; your claim is doomed because you live in a democracy so to speak! In fact, if I am allowed to predict, it seems that the Catalans will settle with a financial deal in this episode in the same way as the Basque people managed in 2011. To conclude: human rights are universal in the sense that their materialisation does not depend on culture, race, religion, political, social, and economic arrangements I have to preach to my students but, as this sad episode painfully demonstrates there is nothing universal about human rights unfortunately.
    Absurd but very true.

  2. Noe Cornago

    Dear Dr Peters
    Many thanks for your brief and well articulated, albeit somewhat inconclusive, account of the main legal issues affecting the Catalan case. It seems to me however that your analysis completely ignores that the Catalan government adopted their crucial moves in flagrant non-compliance of both Spanish Constitution and Catalan Statute of Autonomy. Moreover, the so-called Referendum Act was passed in a grotesque session in the Catalan Parliament, with 72 affirmative votes, 11 abstentions and 52 absent members that left the session as a form of protesting against what for them was ostensibly an extremely serious illegal act in which the Chair of the Parliament abdicated of her role as neutral defender of legality. This defined a formal framework outside any international acceptable standard for securing a democratic referendum. Finally, you present as undisputable the assumption that the Spanish government has actually “used a disproportionate physical force to discipline the Catalan”, something that is certainly more debatable than you suggest, particularly if we consider the way in which the events have evolved October 1st and afterwards, and in view of current standards about Police brutality across the world, and even within the EU.

  3. María José Cervell Hortal

    Dear Professor Peters,
    Thanks for your comments, that I have read with special interest. I would also like to thank Professor Noe Cornago for having accurately detailed some issues that I consider important to have a global view of the situation. I completely agree with him. The referendum was, as he explains, contrary to the Spanish Constitution, and I would simply like to add some extra data to support his arguments: the Council of Europe Code of Good Practice on referendum (2007) establishes (III. 1) that “referendums cannot be held if the Constitution or a statute in conformity with the Constitution does not provide for them”. The same was upholded by the President of the Venice Commission on a letter (dated 2 June 2017) to the President of the Generalitat of Catalonia (http://www.venice.coe.int/files/Letter%20to%20the%20President%20of%20the%20Government%20of%20Catalonia.pdf).
    The existence of disproportionate use of military and police force is debatable, but I am sure that it is something that the Spanish courts (or even, if appropriate, the European Court of Justice) will be able to resolve, as corresponds to a State where the rule of law is guaranteed.

  4. Arne Hartmann

    The ICJ advisory opinion on Kosovo can be put forward as an argument to determine, if a right to self-determination exists under customary international law outside of the context of decolonization(para 82):

    “The Court has already noted (see paragraph 79 above) that one of the major developments of international law during the second half of the twentieth century has been the evolution of the right of self-determination. Whether, outside the context of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation, the international law of self-determination confers upon part of the population of an existing State a right to separate from that State is, however, a subject on which radically different views were expressed by those taking part in the proceedings and expressing a position on the question. Similar differences existed regarding whether international law provides for a right of “remedial secession” and, if so, in what circumstances. There was also a sharp difference of views as to whether the circumstances which some participants maintained would give rise to a right of “remedial secession” were actually present in Kosovo.

    If the ICJ concluded that radically different views among the states taking part in the proceedings existed, one can come up with the impression that the ICJ could not sufficiently determine a common practise of the majority of states and/or an opinio juris. This in turn can be taken as an argument that no right to self-determination exists under customary international law outside of the context of decolonization. This goes hand in hand with the reluctance many states have met Catalonia’s wish to become a new sovereign state.

  5. Nicolas Boeglin

    Dear professor Peters

    Many thanks for these extremely useful reflections. Concerning Kosovo ICJ advisory opinion, the written arguments presented by different States are extremely interesting to review (see full list at: http://www.icj-cij.org/en/case/141) in order to compare their position with regard to Kosovo and now, in 2017, with regard to Catalonia. As known, Spain (as well as Greece and Roumania, among others) does not recognize Kosovo, maintaining a consistent position.

    In the written opinion of France, we read that:

    “En d’autres termes, s’il est tout à fait clair qu’il n’existe aucun droit à la sécession en droit international, il est tout autant établi que celui-ci n’interdit pas la sécession ni, par voie de conséquence, une proclamation d’indépendance par une partie de la population d’un Etat” (see point 2.8, p. 38 at: http://www.icj-cij.org/files/case-related/141/15608.pdf).

    Sincerely yours

    Nicolas Boeglin

  6. Gerard

    This is comment on Miroslav Baros assessment. I am from the Basque country. I think you clearly have not understood the nature of the Catalan or Basque situation because you imply these regions may be under some form of oppression from ‘Spain’. You probably know very little about the economic or political arrangements between my region/Catalan region and Spain’s central government. Like Catalonia, the Basque country is in a position of privilege with regards to the rest of Spain. This means that where all Spanish regions are subject to the same rules, the Basque country and Catalonia have many advantages over the rest. In proportion, they receive more than what they give to the central government. Many pro independence Catalonians always claim that their region gives too much money to the common pool so to speak. But the reality is that, because of many negotiated privileges since 1978 (and in the case of the Basque, since 1492), if for example, Catalonia was supposed to give ‘100’ to the central gvt based on the rules that apply to all regions, they actually give ’80’. The difference Catalonian gvts since 1981 have practically extorted the central gvt, causing great damage to the truly poor regions of the Spain, which needed that money and privileges very much. I don´t want my Basque (Catalan) identity to be used for separatists causes that are selfish at their core – they have nothing to do with the Baltic countries, or Kosovo, etc. It is rather the reverse, but the separatists have learned so well the business of blackmail the central gvt and portraying themselves as ‘victims’ before the world. The reality on the ground couldn’t´t be so different! The separatists in Catalonia and my region are in my view tremendously selfish. Being the region where all Spanish gvts, including Franco, poored in more resources to build industry and infrastructure than in any other region in Spain – for obvious reasons, because it makes so much geo strategic sense, for the overall good of the country. So I would be more cautious to use at least the Catalan/Basque cause to support your points, because you are actually risking leaving the truly oppressed and poor regions of Spain (Extremadura, Murcia, Castilla La Mancha) in their already long oppression.

  7. Miroslav Baros

    In the context of the exercise of the right to self-determination it is apparently irrelevant what the internal laws determine as professor Peters rightly observes (“the constitutional admissibility or inadmissibility of the referendum is irrelevant here”). Of course central governments will outlaw any “unilateral” declarations of independence leading to secessions. The Yugoslav constitution of 1974 did the same as the Spanish in the present context. What matters is an international response (and any discernible legal principle) to those declarations. In order to obtain a legal advice, the European Communities, as the organisation was termed then, established an arbitration commission (Badinter Commission) to provide the Conference on Yugoslavia with legal advice. The Commission created confusion previously unknown in relation to the “right” of self-determination. But its findings were subsequently used by the European Communities and the West to impose a political settlement in the region. In the shortest possible terms, the Commission created a presumption of statehood for those who declared independence from the former Yugoslavia and then used it as a principle for denying the same right to units wanting to separate from the newly created states! Legally speaking, the main problem with the Commission’s reasoning was its partial application of the principle of uti possidetis. It utilised the principle with respect to an entity that, at the time of giving its opinion, was not a state; but it refused to recognise the applicability of the principle of uti possidetis regarding the Yugoslav borders which still had the character of internationally recognised borders. The Commission established the principle of not having any definitive principle if I may suggest, which continues to complicate the international response to similar claims and circumstances. What I find rather incongruous in the present episode is the fact that on 24th March 1999 a Spanish aircraft from the NATO alliance were the first to bomb Belgrade for denying the right to self-determination to the Albanian Kosovars!

  8. Miroslav Baros

    Dear Gerard, you are confusing two fundamental issues here: the debate is about international, not domestic law. The “international community” or international legal rules do not distinguish between “selfish” and “not so selfish” claims by particular groups. Do you believe that the European Union did not support the Catalans because they are “selfish” as you brand the people? Or why do you think the UK government has not outlawed the Scottish referendum? Or oven the Yorkshire (a region in the UK) referendum that was held several years ago? The domestic law of the former Yugoslavia had also, as the Spanish constitution outlawed any unilateral secessions, but it didn’t work because the international reaction was based on ideology, not on a proper examination of the factual situation. My point is: secession is legal or illegal from the international perspective depending on a group making the claim! It is political convenience, not law that matters.

  9. I totally agree with Professor Peters that “the constitutional admissibility or inadmissibility of the referendum is irrelevant here”. From the perspective of international law, domestic law isn’t law, rather, it is a fact (which, however, may be relevant for the formation of international law rules, such as customs and general principles)

    In the Elettronica Sicula S.p.A.(ELSI),Judgment,I.C.J.Reports 1989, para 124, the ICJ affirmed that:

    ‘The fact that an act of a public authority may have been unlawful in municipal law does not necessarily mean that that act was unlawful in international law, as a breach of treaty or otherwise. A finding of the local courts that an act was unlawful may well be relevant to an argument that it was also arbitrary; but by itself, and without more, unlawfulness cannot be said to amount to arbitrariness … Nor does it follow from a finding by a municipal court that an act was unjustified, or unreasonable, or arbitrary, that that act is necessarily to be classed as arbitrary in international law’.

  10. Edward

    Dear Dr. Baros,

    Thank you for your interesting comment. It aimed at furthering the discussion and I would like to take you up on that offer.
    If I understood you correctly you said that the right to self determination cannot exist in democracies. What is the international standard for being a democracy?

    Thank you,
    Edward

  11. […] of extraordinarily worthwhile reads about Catalonia this week. A selection: ANNE PETERS wonders how well international law, with its familiar categories in terms of referenda, still […]

  12. Miroslav Baros

    Dear Edward
    A fair question you pose. Democracy is not a legal concept, but it consists of few elements about which there is significant agreement among states: fair and free elections; the Rule of Law; separation of powers; judicial independence; police under political control etc. The problem we are having, and which I wish to emphasise does not relate to the real meaning or content of democracy but the claim that proper democracy can exist only in the western world, or more ominously in states that the Western world see as “democratic” or “trustworthy” regardless of the absence of some of the elements suggested above. I am not going to name those states but you can surely list a few. So, if we accept those “trustworthy” nations in the “club” (see UK Foreign Secretary’s statement that Spain is our friend and because of that the referendum was indeed “illegal”) that’s the end of the story; no right to self-determination but our friendly country’s unity should only be supported. So, the relevant question, to me is not the existence of a legal standard or rule about the right to self-determination (the standard could not develop precisely because of political preferences that were pursued by the most powerful players in the episodes we are discussing about) but a response that the so-called “international community” adopts to a specific claim as the Catalans can painfully realise now. I hope this makes some sense and many thanks for your question and intention to further the discussion.

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