Catalan Independence Referendum: History, Politics And International Law Interplay – Analysis

On October 1, a referendum on independence was held in Catalonia. It is an event that attracted significant attention by the media, especially since the moves by the Spanish central government to block it and the political debate that followed its results.

My intention here is not to examine the political debate around it in Spain and in Europe, to assess its economic impact, and even less to determine “who is right” and whether Catalonia should become independent or not. Instead, what I wish to do is to raise two often neglected but extremely important aspects of the issue, namely the historical roots of the Catalonian separatism and the problem’s nature from the perspective of international law.

The Original Institutional Order: The Medieval Period And The Fueros

To understand the whole issue, it is necessary to start from history, as it is an important aspect here (as it always is).

During all the Middle Ages, today’s Spain was divided in various kingdoms, among which there were the Kingdom of Aragon and the Kingdom of Castile. With time, these two polities became the most powerful ones in Spain and they began ruling other minor political entities. As a consequence, their nature slightly changed: as a matter of fact, they became the Crowns of Aragon and Castile. Simply put, a Crown is a confederation of smaller polities ruled by the same king, thus forming a single Kingdom. As an example, the Crown of Aragon was nothing but the union of a series of entities (Kingdom of Aragon, Principality of Catalonia, Kingdom of Majorca and many others) that were all ruled by the King of Aragon. The situation changed again in 1492, with the marriage between King Ferdinand II of Aragon and Queen Isabella I of Castile. As a result of their marriage, the two Crowns of Aragon and Castile practically merged and became the Kingdom of Spain, which has the former Crown of Castile as its political pillar.

Still, significant forms of autonomy remained to Aragon and its subordinate political entities, thanks to a system of privileges known as fueros, which were granted by the monarchy to Catalonia as well as other regions of Spain. In particular, the Principality of Catalonia continued having its own Constitutions, which were a system of juridical norms that had to be approved by the Cortes, the Principality’s legislative organ. After his coronation, the King of Spain even used to summon the Cortes and swear on such Constitutions. This system granted a notable degree of autonomy and self-ruling to Catalonia, as well as to the other areas of Spain where is was applied.

The Suppression Of The Fueros

Things would change dramatically at the beginning of the XVIII century, with the War of Spanish Succession (1702-1714). Now, let me open a parenthesis. This conflict is a major event in modern European history, but unfortunately it is often ignored. It is a complex war with multiple implications; but here, I will only talk about its impact on Spain.

In short, the war was sparked by a succession crisis over who were to become King of Spain. The conflict opposed two rivals. The first was the grandson of King Louis XIV of France; he was crowned as King Philip V of Spain in 1701 and he ultimately prevailed. The other was the Archduke Charles of Austria (later Emperor Charles VI of the Holy Roman Empire). The two men represented not only the interests of two different powers (France and Austria) and their allies, but also two different governance systems: Philip V supported the absolute monarchy model that his grandfather had established in France, which was based on the centralization.

Of course, this would imply the end of the fueros and the concentration of power in the hands of the King, resulting in more power to the central government in Madrid and less to Catalonia. On the contrary, Charles wanted to continue applying the ancient system of the fueros, and preserve the autonomy of Catalonia and other regions (notably, this kind of governance was closer to that existing in Austria and the Holy Roman Empire). So, it is not surprising that most Castilians supported Philip, whereas the Catalans were largely pro-Charles.

However, the war turned bad for the Catalans. Charles had to renounce to his claims on the Spanish throne, and he withdrew his support to Catalonia. Nevertheless, the region decided to continue its resistance against the central government, but its struggle ended in a dramatic way. The troops of Philip V besieged Barcelona and, despite its firm resistance, the city was conquered on September 11, 1714; a date that marked the collective conscience of the Catalan people and that still has a major importance for it. With a series of legislative acts known as Decretos de Nueva Planta, the King abolished the fueros system in the regions that had supported his rival Charles. The Catalan fueros were suppressed in 1716, just two years after the siege of Barcelona.

Symbolic Importance Of 1714-1716 Events For Catalan National Sentiment

Previously I mentioned that the long historical digression would be important. Here you will see why.

As mentioned before, the dramatic events of Barcelona’s fall and the suppression of the Catalan fueros had a deep impact on the national sentiment of the Catalonian people. In fact, September 11 marks the National Day of Catalonia, known in Catalan as Diada.

This date is seen as a founding episode of the Catalan national conscience, the apex of its heroic struggle to preserve its identity and liberties from Philip’s absolutism, and it celebrates the values for which the Catalans fought for. Today, those values are recalled in the discourse of the Catalan political forces in favor of greater autonomy or (even more) independence.

It is interesting to note that the defenders of Barcelona in 1714 claimed to be fighting for freedom; and not only for them, but for the whole of Spain. This is demonstrated by the famous announcement (Catalan and Spanish texts here) published by the Catalan authorities in the last phases of Barcelona’s siege, when they called the people to fight “for their Homeland and for the freedom of all Spain”.

Now, I am not an expert of the political debate on independence inside Catalonia, but it seems that this kind of discourse still exists still today: as this article suggests, the Catalan pro-independence forces still claim to be struggling for freedom and for a more equal and open society against the conservatism and centralism of the government in Madrid.

Today as in 1714, the Catalans affirm to be protecting not only their freedom, but that of Spain as a whole, in an effort to build a better country. Therefore, the problem is not (only) about Catalonia, but about Spain’s entire political-institutional order, about its very nature as a polity. As such, beyond the ethnic-linguistic divides, the issue is about the future of Spain; and not only because of the risk that it may lose one of its most economically prosperous regions, but because its institutional system is put under discussion.

¿Restablecer Los Fueros?

And this brings the fueros back. As a matter of fact, the whole issue about Catalonia can be seen to some degree as an attempt to restore the fueros that were lost in 1716. Since then, virtually all political upheaval involving the region was linked to its struggle to regain the autonomy it once enjoyed. This was the case of the three Carlist Wars during the 19th century, a series of civil wars during which Catalonia fought for the traditional values against the liberal and secularist tendencies of the central government; and again of the Spanish Civil War (1936-1939) that saw Catalonia becoming the stronghold of republican and communist forces against Franco’s nationalists (however, it should not be ignored that both the Carlist Wars and the Civil War were complex conflicts with multiple socio-political implications).

Even today, significant voices among the Catalan call for a restoration of the fueros, and this may indeed be a possible solution. Of course, they would need to be re-adapted to the contemporary context; but at the end this is the core of the problem: finding a new institutional order for Spain as a whole, and one that is capable to preserve the equilibrium between Catalonia and the central government, as the ancient fueros had been doing for centuries.

It is not up to me to say how this new political balance should look like, as I have neither the authority nor the competences to do so; and naturally, this would not be an easy task. After all, Catalonia currently has its own self-government organs (the Generalitat) and it enjoys a good degree of autonomy, but despite this its authorities still decided to move ahead with the independence referendum. But this very fact indicates that the present situation is not deemed satisfactory, and that there is the need to find a new center-periphery equilibrium that satisfies the demands of the Catalans all while preserving the unity of Spain.

Again, the recent escalation shows that such an agreement is very difficult (if not impossible) to reach; otherwise the stand-off would not be so serious. Still, this proves once more that the issue is not only about Catalonia, but about Spain as a whole; and that the ancient fueros still play an important role today, to the point that restoring them (albeit in a renewed and modernized form) may be the solution to the problem.

International Dimension Of Independence Referendum: Right To Self-Determination?

At this point, I can move to the examination of the issue from international law’s viewpoint. Beware that it is a complex issue that is largely based on (political) interpretations, but I will try to be objective in presenting my statements.

Now, a recurrent statement about Catalonia’s independence referendum is that it is conducted in the name of self-determination (see, for example, the article mentioned above). But even if it is so often presented as an exertion of this principle, is it actually so from the point of view of international law?

To answer this question, it is necessary to make some preliminary consideration. First, Catalonia is a region belonging to Spain, which is a sovereign state. Therefore, like all states, Spain exerts its sovereignty on its territory, including Catalonia; meaning that it has the right to exclusively exert its governing power on that territory. This also implies that Spain holds the monopoly of force on its territory, meaning that it has the juridically legitimate authority to use force to impose law on it.

This is particularly true in the case a state employs force to preserve its own territorial integrity: the secession of a given territory would be in clear violation of the state’s sovereign rights on it, thus making it legitimate for the state to use coercive force in order to maintain its power on that territory.

As such, Spain can legitimately oppose Catalonia’s independence, and even use force to prevent it (but always in respect of the norms on human rights and similar). Now, I do not want to take a position on “who is right”, nor I want to “justify” the measures taken by the Spanish government to block the referendum and the independence process: I am simply analyzing the situation on a juridical basis. And according to it, Catalonia has not the right to secede: it could legally become independent only with the consent of the Spanish state and in respect of its constitutional norms. In short, if Spain does not want Catalonia to become independent, it has the right to oppose it and the latter cannot unilaterally secede.

But what about the right of self-determination, so often evoked to justify Catalan independence and frequently mentioned by media reports on the referendum?
Well, the situation is controversial and debated, also (and mostly) because it is heavily politicized. Still, it is possible to make some considerations. First, it is necessary to remind what the self-determination principle is actually about. Basically, it is the right of peoples under foreign domination to become independent, associate with or be integrated into an independent state, and in general to freely choose their political regime. Now, one may argue that the Catalan people can evoke this right because it is dominated by Spain; but this would very likely be a politically-biased and hard-to-prove statement.

But even assuming that it is actually the case (and this is a big “if”), there would still be another considerable obstacle; actually, an insurmountable one, unless the very application of the self-determination principle is modified. As a matter of fact, the principle is not retroactive, therefore it can only be applied to cases of foreign domination which materialized after the norm was established and consolidated; which practically means after 1945 (the end of WWII). Now, as we have seen, Catalonia became part of the Kingdom of Spain centuries before that date. As a result, it is not possible to evoke the self-determination principle to justify Catalonia’s quest for independence on a juridical basis. You can state it is “just” in ethical, political, or economic terms; but self-determination (as it is conceived today in international law) is not applicable.

Of course, you will find plenty of voices affirming the contrary, such as this DIPLOCA report and this statement from UNPO. Still, most of times they are not impartial (in the cases above, the report was written by a Catalan law professor and the statement comes from an Organization supporting the cause of underrepresented populations…). You will also find others firmly refusing this right, like this article. Again, I do not want to say what is “just” and what is not; but on the basis of the current interpretation of international law, it is not possible to argue that Catalans have a right to self-determination.

Conclusion

To conclude, it is possible to summarize the situation as follows:

• The Catalan question has deep historical roots.
• Today as in the past, the issue is not only about Catalonia, but about Spain as a whole and its nature as a polity.
• “Restoring” the fueros in a modernized form may be the key to solve the problem by finding a new equilibrium between the Catalan Generalitat and the central Spanish government.
• The Catalans cannot legitimately invoke the self-determination principle to juridically justify the referendum and more broadly to push ahead toward independence.

About the author:
*Alessandro Gagaridis runs the website Strategikos, and holds a Master’s degree in “International Relations: Professional Focus Diplomacy and Conflict Resolution” at the Université Catholique de Louvain (Belgium).

Additional readings
A page on the War of Spanish Succession (in Spanish), it is from a blog but it is detailed: https://senderosdelahistoria.wordpress.com/2007/12/06/la-guerra-de-sucesion-espanola-1701-1713/

A brief overview of the War of Spanish Succession (in Spanish): http://www.historiasiglo20.org/HE/8a.htm# and on the centralization which occurred after the war: http://www.historiasiglo20.org/HE/8b.htm

An article on the siege of Barcelona and its historical importance [in Spanish]: http://www.nationalgeographic.com.es/historia/grandes-reportajes/sitio-barcelona-guerra-sucesion_10653/1

Another brief page on the War (in English): https://www.britannica.com/event/War-of-the-Spanish-Succession

Wikipedia’s page on the War [in English, but the Spanish version is also well-made]: https://en.wikipedia.org/wiki/War_of_the_Spanish_Succession