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

Published on October 24, 2017        Author: 

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. Read the rest of this entry…

 

Secession and Self-determination in Western Europe: The Case of Catalonia

Published on October 18, 2017        Author: 

This presentation is based in part on the Legal Opinion by an International Commission of Legal Experts addressing the question of Catalonia: The Will of the People and Statehood. The Commission was composed of Professors Marc Weller (UK ), John Dugard (South Africa), Richard Falk (USA) and Ana Stanic (Slovenia). Although the Opinion was commissioned by Esquerra Republicana de Catalunya, its findings represent the agreed and independent views of the authors. While based on the Opinion, which will be published in due course, this contribution does not purport to give an authoritative rendering of it, but instead represents the views of the author.

This contribution assesses the claim to statehood of Catalonia, addressing in turn:

  • The criteria for statehood;
  • The legality or otherwise of unilateral declarations of independence;
  • The issue of self-determination;

Objective criteria of Statehood

Catalonia can easily meet the classical, objective criteria for statehood. It has a clearly defined territory of some 32,000 sq km, featuring clearly defined boundaries. Its stable population numbers around 7.5 million, far in excess of many recently independent states in Europe and beyond. It is the most economically viable region when compared to other parts of Spain. Even under autonomy within Spain, Catalonia has exhibited most of the functions of effective government.

Whether Catalonia would in fact exercise fully independent powers of government can only be assessed if and when it decides to implement its declaration of independence, at present suspended in application. Catalonia has generated a substantive transitional law, to apply pending the adoption of a new constitution once independence proceeds. That law would assign all public powers to the new state, including foreign affairs powers (‘capacity to enter into international relations’). Hence, Catalonia is, at least potentially, capable of statehood.

Negative subjective criterion

In addition to the classical, objective criteria, there are negative and positive subjective criteria of statehood. The negative criterion, confirmed by the International Court of Justice in the Kosovo Opinion, demands that statehood must not be tainted by jus cogens violations. There is no suggestion of such conduct by Catalonia in this instance.

First positive subjective criterion: A manifestation of popular will

The positive subjective criteria come in two guises: first, there must be an act of will of the population, and second, that will must be enacted through a declaration of independence.

Any change in the social contract of a political community as dramatic as an act of secession from the established legal order must be based on the will of the people. Ordinarily, this would take the form of a referendum, although in some instances (dissolution of Czechoslovakia), concurrent decisions of the elected national and regional assemblies have been taken to be sufficient.

The international legal requirements for a valid referendum are only emerging. Still, in analogy to emerging standards on democratic governance, at least within Western Europe, it is clear that there must be a free and fair campaign and a transparent and open balloting process. In this instance, any intimidation came from the side of the Spanish government, including arrests, raids and other measures against pro-independence campaigners and officials. Read the rest of this entry…

 

P.S. Catalonia

Published on June 6, 2013        Author: 

My Editorial on Catalan independence certainly put the cat among the pigeons – or perhaps more accurately, the pigeon (or dove) among the cats.  Reactions were ferocious and some unpleasantly ad hominem, even by some authors who should know better. I read with care all reactions, including those removed by our Blogmasters for violating the decorum and sobriety which are a hallmark of EJIL: Talk! Most underscored, with different levels of vehemence, the longevity and authenticity of Catalan nationalism – something that was not called into doubt – and a variety of historical grievances.  None, in my view, came even close to meeting my basic point, which was that to insist on independence as a solution to resolving the grievances and vindicating Catalan national identity, was a defeat of the very spirit and ethos which gave birth to that noble experiment which is the European Union. I repeat: Independence? Bon Voyage. But not in the EU.

 
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