Catalonia’s Declaration of Independence:
Based on the International Law Criteria for Statehood, is Its Declaration of Independence Valid?
First published on Keep Calm Talk Law in December 2017
Great Britain recognised the island state of Singapore. How do you recognise an island? Do you go, exc-- Hey, wait. No, don't tell me. Wait, wait. Didn't we meet last year at the Feinman bar mitzvah? You look a lot like Hawaii. Didn't we meet last year at the Peninsula Club?
Adrian Cronauer, Good Morning Vietnam
There is perhaps no greater symbol of identity than that of nationality. It signifies not only from which state a person originates, but also represents the culture, the traditions and the history that comes with it. Throughout history, wars have been fought – and millions of lives lost – over this key element of identity. Many such conflicts have stemmed from the desire of the group to secure their right of self-determination, which is defined by Article 1 of the International Covenant on Civil and Political Rights as the right of:
[All] peoples… to freely determine their political status and freely pursue their economic, social and cultural development.
Underpinning this concept of self-determination is the idea that, rather than any hard and fast criteria, it is the will of the people that make a state legitimate. This may mean that there may be many more ‘self-identified’ nations in existence than the 193 states that are presently recognised by the international community.
Perhaps the most famous example of a group of persons exercising their right of self-determination to form a new state is the 1776 American Declaration of Independence. Yet, in more recent times, there have been numerous other examples of the right being exercised, including Kosovo’s unilateral declaration of independence from Serbia in 2008. Meanwhile, the most recent nation to successfully declare independence – after it was officially recognised by the UN via Resolution RES/65/308 – was South Sudan in 2011.
The government of Catalonia wishes to follow South Sudan’s example: indeed, on 27 October 2017, it unilaterally declared the region’s secession from Spain. This declaration had followed a ‘Yes’ vote in a controversial independence referendum, the result of which had been rejected by the Spanish government. However, questions can be raised about the applicability of the right of self-determination to Catalonia: as Professor Jose Marti of the Universitat Pompeu Fabra in Barcelona notes:
[M]ost international lawyers – almost all of them, in fact – would say that the right of self-determination doesn’t apply to cases like Catalonia. The right to self-determination was born and evolved basically to be applied to former colonies, and that’s not the case with Catalonia.
However, this does not rule necessarily rule out the case for Catalonia's independence. Arguably, if it could meet the other legal requirements that must be met for a group of people to successfully declare themselves an independent nation-state, Catalonia could become the 194th recognised state. With this in mind, this article will examine the present political and legal situation in Catalonia and analyse whether Catalonia matches with the framework used by international lawyers for assessing statehood.
The State of Play: The Cat-alan Out of the Bag?
An Introduction to Catalonia
Catalonia is an autonomous community of Spain located on the north-eastern extremity of the Iberian Peninsula. Viewed as an economic driving force for the rest of Spain, the region houses major cities including Girona and its capital, Barcelona. In 1975, following the death of General Franco and the resultant return of democracy to Spain, Catalonia was designated as an autonomous community by the Spanish government through the original version of the Statute of Autonomy of Catalonia (the Statute). The Generalitat de Catalunya (Generalitat) is the institution in which the self-government of Catalonia is exercised. It consists of the Parliament, the President of the Generalitat, and the Executive Council (Government) of Catalonia.
The Spanish government has, since 1979, officially recognised Catalan as a nationality. Meanwhile, the region has gradually been securing an ever-greater degree of autonomy. In 2006, the Spanish Parliament passed an updated version of the Statute that gave the regional government wider powers and greater financial autonomy. The Statute’s preamble also uses the word "nation" to describe Catalonia. The power now vested in the Generalitat has now exceeded the 1979 boundaries – when the powers mostly related to culture, environment, and tourism – such that the Generalitat now holds exclusive jurisdiction in various matters of culture, environment, communications, transportation, commerce, public safety, and local governments. And while the region still shares jurisdiction with the Spanish government in the areas of education, health, and justice, it has its own police force, the Mossos d'Esquadra and its own civil law.
Developments in Recent Years
The extent of Catalonia’s autonomy was curtailed in 2006 following a legal challenge to the Statute’s provisions by the Popular Party, a Spanish centre-right political party led by Mariano Rajoy which currently represents the Spanish government. After deliberating for four years, the Spanish Constitutional Court eventually delivered their judgment on 28 June 2010.
At first glance, the decision seemed relatively harmless: of the Statute’s 223 articles, the court struck down 14 and curtailed another 27. Yet the ruling’s effect was significant: it struck down attempts to place the Catalan language above Spanish in the region, declared the region’s powers over courts and judges as unconstitutional regional, and stated that:
[T]he interpretation of the references to “Catalonia as a nation” and to “the national reality of Catalonia” in the preamble of the Statute of Autonomy of Catalonia have no legal effect.
The decision provoked significant outrage from Catalan groups. It prompted the then President of the Generalitat, Artur Mas, to declare that he would call for an independence referendum if his party were re-elected with a sizeable majority. It was, and the vote (subsequently declared non-binding by the Constitutional Court) was eventually held in November 2014. It asked Catalans two questions:
1) Do you want Catalonia to become a State? If yes,
2) Do you want Catalonia to be an independent State?
About 80% of those who voted answered “Yes” to both questions. However, anti-independence advocates pointed ut that, because turnout was estimated to be about 35.5%, the vote could not be considered as carrying that much weight.
The Events of 2017
When Carlos Puidgemont was elected as President of the Generalitat in 2015, he promised to hold a binding vote to resolve the issue of Catalonian independence for a generation. Ignoring another Constitutional Court ruling that the promised vote would be unconstitutional – on the grounds that any legislation passed by the Catalan Parliament mandating the referendum undermined what Section 2 of the Spanish Constitution describes as the ‘indissoluble unity of the Spanish nation’ – and the advice of his parliamentary legal counsel, he rushed through the required legislation during a late-night parliamentary session that saw opposition MPs walkout in protest at the tactics used.
The Generalitat decided to carry on with the vote. Under court orders, the Guardia Civil (the Spanish military police force) were sent to confiscate any ballot boxes on polling day; distressing scenes of police brutality against those wishing to vote were broadcast worldwide. The result of the vote was a 92.01% vote in favour of independence on a total turnout of 43.03%. Although turnout was barely higher than the heavily-questioned 2014 vote, the heavy-handedness of the Spanish government prompted a sympathetic response towards the Catalan’s cause from around the world.
On 21 October 2017, following a robust exchange of letters asking Puidgemont to clarify his intentions, the Spanish government imposed direct rule on Catalonia, taking over responsibility for all regional government. It justified its actions by citing Article 155 of the Spanish Constitution, which allows the Spanish government to impose direct rule if a regional authority fails to fulfil its obligations under Spanish law or acts in a way seriously prejudicing the general interests of Spain. It was argued that a regional declaration of independence by Catalonia could be considered as seriously prejudicing the general interests of Spain, and thereby gave the Spanish government had a clear legal basis on which to act. In response, the Catalan Parliament voted to unilaterally declare independence from Spain on 27 October 2017.
Statehood in International Law
Defining a State
There is no firm definition of what constitutes a state in international law; the closest any document or case has come to define a state can be found in the Montevideo Convention on Statehood 1933 (The Montevideo Convention). Article 1 of The Montevideo Convention sets out cumulative criteria that a state should possess before it should be considered apt for recognition:
A permanent population;
A defined territory;
A government; and
The capacity to enter into relations with other states
International law prevailing at the adoption of The Montevideo Convention viewed states as sui generis, meaning states are legal authorities in their own right. This is demonstrated by Article 3 of The Montevideo Convention, which holds that:
The political existence of the state is independent of recognition by the other states. Even before recognition the state has the right to defend its integrity and independence…to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.
The recognition of a state merely signifies that the state which recognises it accepts the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.
A Debate on Recognition
While The Montevideo Convention is viewed as the leading authority on the criteria for statehood, there remains an intense debate over whether being a state’s ability to satisfy the criteria is sufficient for it to be considered a state (the declaratory theory) immediately, or whether an aspiring state that meets all the criteria still needs to be recognised by other states (the constitutive theory) for statehood to take effect.
The Declaratory Theory
The declaratory theory holds that, as soon as a state satisfies the listed criteria in The Montevideo Convention, it is entitled to call itself a state. This approach was used in Opinion No. 1 of the 1991 Badinter Commission, which dealt with the legalities surrounding the formation of several different states following the disintegration of the Former Yugoslavia. This theory accords well with the text of The Montevideo Convention itself – especially Article 3 and Article 6 – when a narrow and literal interpretation is employed.
In practice, however, the declaratory theory fails to adequately appreciate the nuances surrounding the creation of states: it overlooks the fact that there are regions that do satisfy The Montevideo Convention criteria but do not benefit from being “states” as they lack formal recognition from other states or international organisations.
An excellent example of this is the Moldovan territory of Transnistria, a non-state entity that has essentially been independent since the fall of the Soviet Union. It satisfies all of The Montevideo Convention – it has a territory, a permanent population, a government, and has engaged in relations with other states – but does not participate in international affairs because it lacks any formal recognition.
The Constitutive Theory
The lack of empirical validity suffered by the declaratory theory might suggest that the constitutive theory explains state formation better. However, like the declaratory theory, it falls down when it is applied to a number of real-world scenarios.
The constitutive theory, most prominently espoused by Professor James Crawford, takes a broader view of state formation. It looks at what the state is capable of doing for itself in an international setting, and whether other states are willing to engage with it actively. The concept of recognition by other states is therefore treated as being key to whether an aspiring state is a state. It is this lack of recognition that prevents Transnistria from achieving full statehood.
However, the constitutive theory fails to explain why certain entities that have been the subject of numerous recognitions are not, in fact, states. It also raises the question of how many recognitions are necessary for an entity to become a State. The most famous example of this is Palestine. In July 2011, the Palestinian Liberation Organization (PLO) reported that at least 122 of the UN’s 193 members (63%) recognised its “statehood”. However, not even the PLO’s negotiators’ website discusses Palestine as if it were already a state.
It seems, therefore, that the constitutive theory, like the declaratory theory, provides little useful guidance as to when a given entity is, or is not a state. Indeed, in practice, it appears to be a balance of the declaratory and constitutive theories that go into state formation.
What State is Catalonia in?
The crucial question for the purposes of this article is therefore the extent to which Catalonia satisfies the requirements of The Montevideo Convention. It certainly fulfils the first requirement of having a permanent population: recent figures suggest that there are approximately 7.45 million Catalans. It also has a defined territory in the north-eastern part of Spain that covers an estimated 32,114 square kilometres. And, until the recent introduction of direct rule, it has had its own government since the passing of the original Statute of Autonomy in 1979. It is likely that it will seek to resume autonomous government after the forthcoming December elections.
However, the fourth requirement of The Montevideo Convention seems to be lacking. Although the Generalitat has a Foreign Affairs Ministry, it was forced to rename itself from the Ministry for Foreign Affairs, Institutional Relations and Transparency to the Ministry of Institutional Affairs and Relations and Exterior and Transparency to avoid any perception of overlap with the Spanish government, which has exclusive responsibility for foreign relations. Furthermore, on 16 February 2016, the Constitutional Court suspended – pending judgment – Catalonia’s powers of foreign projection, before concluding in December 2016 that, while the Catalan government did indeed have the powers to promote itself abroad, it could not exercise diplomacy.
From this, it can be argued that Catalonia does not satisfy the final requirement for statehood under The Montevideo Convention. From a declaratorist perspective, it, therefore, cannot be considered an autonomous state. Meanwhile, from a constitutive perspective, an inability is also a fundamental issue: it would be difficult for Catalonia to secure recognition from other states if it lacks any real ability to conduct foreign relations. Furthermore, as far as recognition is concerned, the Catalan Republic has received no recognitions from any sovereign nation since its unilateral declaration of independence on 27 October 2017.
Much sympathy has (rightly) been expressed for the plights of Catalonia from across the world, particularly following the heavy-handed nature of the response by Prime Minister Rajoy and his government to recent events. However, it might be argued that fault can be levelled against all sides, on the grounds that both showed disrespect for democracy: while Spain unfairly refused to grant recognition of the vote and responded in a disproportionate manner, the ‘wing and a prayer’ approach of Puidgemont and the Generalitat in pushing through the legislation that mandated the vote can also be questioned.
With the chaos now nearing the point of subsiding, and self-rule likely to return to Catalonia after the December elections, a more accurate picture of what the future holds may emerge. But for now, the application of both interpretations of the requirements of The Montevideo Convention show the Catalans falling short of true statehood. Ultimately then, as things stand, the independence dream will have to remain just that.