By Abhishek Trivedi*
October 2017 has been marked a historic month for the people of Catalonia, as Catalonian Parliament passed a resolution by a vote of 90% in favour of independence out of 43% of potential voters who took part in voting.The unilateral declaration of independence by Catalonia has laid down the foundation of an independent ‘Catalonia Republic.’
The demand of the Catalonian people for the independence and separation from Spain has been a long controversial issue in this region of Europe. Catalonia is a home to 7.5m people (16% of the total) and accounting for 19% of national GDP, Catalonia is one of Spain’s richer regions. It has formed an integral part of Spain since the 16th century (and of the Kingdom of Aragón before that), but it has its language and culture. Until recently Catalan nationalists were content with home rule. Two things led to increasing support for independence. First, Spain’s Constitutional Tribunal rejected parts of a new statute that would have given Catalonia more autonomy. In 2006, the Spanish government backed Catalonia’s calls for greater powers granting “nation” status and financial control to the region, but that status was rescinded by the Constitutional Court, which ruled that while Catalan is a “nationality,” Catalonia is not a nation itself.Second, more importantly, nationalist politicians in Barcelona succeeded in deflecting against Madrid widespread anger at the austerity that followed the bursting of Spain’s housing and financial bubble in 2009.
Legality of Unilateral Declaration of Independence under International law
This question for the first time came before International Court of Justice (hereinafter ICJ) for consideration in 2010. The issue was brought up by General Assembly of United Nations Organization under Article 36 paragraph 1 of ICJ Statute and Article 96 paragraph 1 of United Nations Charter. ICJ admitted this request of General Assembly under its advisory jurisdiction and laid down the legal position of international law on the point of unilateral declaration of independence.
This request before ICJ was brought up in special reference to Kosovo where Kosovo declared independent from Serbia in 2008 and founded itself as the Independent Republic of Kosovo. Till now there are 111 member States of UNO which have recognized the independence of Kosovo.
ICJ in its advisory opinion has laid the foundation of legality which attaches to the independent declaration of independence by any country. In reply to the question whether the declaration of independence is in accordance with international law, ICJ has said that according to State practice there is no prohibition of declaration of independence. The general international law contains no applicable banon anindependent declaration by a State—making Kosovo declaration not violative of international law. One of the critical, contentious argument placed before the Court was that prohibition of unilateral declaration of independence is implicit in the principle of territorial integrity. But the Court limited and confined the scope of this argument only to the sphere of relations between States, as the same has been reflected from Article 2(4) of the UN Charter and Article IV of Final Act of Helsinki Conference on Security and Co-operation in Europe, 1975
Moreover, ICJ in the cases of South West Africa case, 1971, East Timor case 1995, and Construction of Wall case, 2004 also noted that during the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the people of non-self-governing territories and for the peoples who are subject to alien subjugation, dominion and exploitation.
In this entire process of making aunilateral declaration legal, several questions have to be answered and examined in the light of facts and circumstances in which such declaration of independence by Catalonian Parliament was pronounced. Such as who were the authors of the declaration of independence? What is the legal identity of the authors of aunilateraldeclaration? Whether they were acted under the auspice of Spain government within the constitutional framework of Spain or acted ‘together’ in their capacity as representative of the people of Catalonia outside the constitutional framework of Spain, or whether the author of the declaration was bound by the legal framework of powers and responsibilities established under Spanish constitution to govern the conduct of the Catalonian parliament. However, justification to all these questions is necessaryfor thepurpose ofdomestic law onlyto attach the legality to such declaration. Under international law, amere declaration of independence is enough to attach legality, provided it has not been, otherwise, declared illegal. Under themunicipal legal system of Spain, the referendum might have no legal status as Spanish Constitutional Court has prohibited it. The court said thatSpain’s democratic constitution of 1978, approved by more than 90% of Catalan voters, gave extensive autonomy to the Catalonia regions but affirmed “the indissoluble unity of the Spanish nation.” Only the Spanish parliament can change the constitution. The referendum is, therefore, illegal under Spanish Constitution.
Under international law, the referendum is one of the modes, among other things, of exercising the right to self-determination, and in a contemporary era where people regard democracy as the best form of government in which people directly chose their representative. Referendum or plebiscite, on the other hand, is nothing but an expression of the will of mass people in deciding an important social or political question. In the case of Catalonia where 90% of the 2.26 million Catalans who voted in favour of independence in a referendum held on 1st of October. The region has 5.3 million voters; officials said 770,000 votes were lost due to disruption which resulted in polling stations being raided by Spanish police. It follows that the referendum to be one not represented the will of even majority of potential Catalans voters, as only 43% of the potential Catalans voters voted inthe referendum and out of this only 38% (90% of 43%) voted in favour of independence.
It mustbe noted that legality of theunilateral declaration of independence in international law is different from itslegalityunder domestic law. As under the domestic legal framework, theconstitutional court of Spain has struck down the referendum, but the same might have been declared legal if examined through the lenses of international law.
A way forward for Catalonia
The existence of self-determination as a right under international law is different from its being operationalization under municipal law. Mostly during the peacetime, aclaim for self-determination of people gets implemented through thedomestic procedure. Thus, it requires the claim to be operationalized in strict compliance with the domestic legal framework of a country of which the ‘people’ form a part of it. Catalonia referendum might be held illegal under thedomestic law since it is not in accordance with the constitutional framework of Spain, but it does not preclude the possibilities of being legal under international law. Under international law, it might get legality as well as legitimacy, regardless of its illegality under Spain law, depend upon the de-facto recognition of it by other States. The existence of a State under international law, for the purpose of establishing friendly relations with other States, depends upon its capacity, among other things, to develop and maintainpolitical and diplomatic relations with other States in international discourse. Therefore, if other States start to recognize Catalonia as an independent sovereign State, then it may get a status of being an independent sovereign State in relation to those States only.
This article was published by Modern Diplomacy