On the 10th October 2017, the President of the Generalitat of Catalonia, Carles Puigdemont, declared the independence of Catalonia. This proclamation followed the poll, which occurred on the 1st October, when the Catalan voters voted to answer the following question: “Do you want Catalonia to be an independent state in the form of a republic? “. The results of this vote, published by the Catalan authorities, gave the majority to the affirmative. The proclamation of the independence represents a political act, which fits into a broader secessionist process within Spain. In the very opinion of a member of the Catalan government, this declaration constitutes “a solemn act […] which has “no legal value”, In this legal and critical analysis, I will not focus on the unilateral declaration of independence of the 10th October as such, but on the whole secessionist process and if it is legal according to International Law with respect to the International Court of Justice jurisprudence.
The argument says that Catalonia is justifying its act “by the fact that its political status is an imposed one and that it cannot develop itself freely within Spain” . We will see in this part that Catalonia is an autonomous community and a historic region of Spain. Since 19 June 2006, it has been defined as a “national reality” by its autonomy status, but the preamble of this law defines Catalonia as a nation. Catalonia is one of the seventeen autonomous communities of Spain. It gained autonomy on 17 January 1980 with the entry into force of Organic Law No. 4/1979 of 18 December 1979 on the Statute of Autonomy of Catalonia.
The Spanish Constitution of 1978 declared that Spain is an indissoluble nation, which recognizes and guarantees the right to autonomy of the constituent regions “Catalonia, as a nationality, exercises its autonomous government by forming an autonomous community, in accordance with the Constitution and this Statute, which is its basic institutional standard ” .
The 2006 Preamble on the Statute of Autonomy states that the Parliament has defined Catalonia as “a nation”, but that the Spanish Constitution recognizes Catalonia as a “national reality”. The preamble has no legal value, so the status is the same as it was in 1979, that is, an autonomous community, although this statute was approved both by the Catalan Parliament and the Spanish Parliament and later by a referendum in Catalonia.
Once we understand that Catalonia does not have an imposed political statute but an agreement to decide within its own territory as long as it does not breach any of the Spanish Constitution Rights, it is essential to have a look further to the legitimacy that Catalonia has to use the right of self determination within the International Laws.
The finding is reversed when one carries the examination on the legal discourse of the partisans of independence. The explanatory memorandum attached to the Catalan law of September 6, 2017, relating to the organization of the “referendum of self-determination”, makes in its introduction mention of the Pacts of New York as well as Article 1§2 of the Charter of Nations United. Common Article 1 of the Covenants states that “all peoples have the right to self-determination” while the UN Charter enshrines the “principle of the equal rights of peoples and their right to self-determination” . The Memorial also mentions Article 96 of the Spanish Constitution of 1978, according to which “international treaties validly concluded by Spain form an integral part of its legal order.” The debate on the pro-independence under International Laws rather than simply the Spanish Laws can be highlighted by a further example. Indeed, the Minister Delegate for External Affairs of Scotland commented as well on the situation pinpointing that “all peoples have the right to self-determination and to choose the form of government best suited to their needs, a principle which is enshrined in the UN Charter”
By keeping what was exposed above, as legal postures, it is interesting to see further how International Law sees the creation of a new state. The starting point is the genuine right to independence which derives itself from the right to self-determination for “people” “under colonial domination or under foreign occupation” (see, in particular, the resolution of the United Nations General Assembly However, does the context of Catalonia fit into those prerogatives?
According to international law, a “territory is considered occupied when it is actually placed under the authority of the enemy army” . Catalonia does not seem to be militarily occupied by Spain. Moreover, it does not seem appropriate to emit a comparison to South African regime of Apartheid to which the right of self-determination definition appears to refer to. Therefore, Catalonia does not constitute, under International Law, a “territory under foreign occupation or subject to a racist regime, or a colonial territory”, which could lead to not being able to use that right of self-determination. This leads us to wonder if Catalonia could still create its state outside of Spain without fulfilling the scheme?
In this type of situation then, International law keeps a position of legal neutrality with regard to declarations of independence. It does not authorize nor does he forbid them, which brings the legal order within the country in action . Each State is free to authorize, regulate or prohibit secession within it. There are plenty of examples, which could be compared to Catalonia situation. One can mention the unilateral proclamations of independence of the Autonomous Republic of Crimea in 2014, the Islamic State in the same year or even Kosovo in 2008. Declarations of independence are not necessarily “one-sided” and may result from a process of negotiations within the country, which was enlightened in the case of South Sudan in 2011 or 2006.
Furthermore, the International Court of Justice (ICJ) formally prohibits unilateral declarations of independence when it breaches International Law. This rule would come handy in the situation of the declaration of independence being enforced by the use of force and violence by a third State , which was the case for Crimea.
Hence, the secession of Catalonia does not appear contrary to International Law, which makes us wonder if a true “right” exists where Catalonia could avail itself? This question refers to the problem of “secession-remedy”, a theory according to which a right to independence applies for the benefit of oppressed minorities, where the State violates fundamental rights. In this hypothesis, minority could exceptionally be granted a right to independence, hypothesis which was largely evoked in the case of Quebec. The Canadian constitutional court was asked the following question: the Quebec authorities “possess under international law, the right to unilaterally secede Quebec from Canada? However, it is not certain that this hypothesis represents a legal norm. In 2010, the International Court of Justice declined jurisdiction to rule on the existence, in substantive law, of a right of “secession remedy”
To conclude, the secession of Catalonia is not opposed by the International Law, nor is it authorized by it. Positions favorable to independence place the debate in the register of public international la appealing, in a more or less convincing way, to various notions borrowed from this discipline while the legal discourse advocating the maintenance of the unity meticulously to remain in the register of Spanish constitutional law, taking care to exclude, with exception, any reference to public international law. Supporters and opponents of independence cannot, as is, find agreement on the field of law for the simple reason that they do not speak the same legal language, whether one side focuses on the International Law and the other on State Law.
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