The Catalan Case for Cutting ties with Castilla: Convincing or Quixotic?
Vol. 39 Associate Editor
If Carles Puigdemont, President of the Generalitat de Catalunya, gets his way, Barcelona will no longer be part of Spain. While the kingdom created by the union of King Ferdinand and Queen Isabella in the 15th century included Catalunya, there has existed a lingering sense of separateness, visible both through the retention of autonomous political institutions and the use of the Catalan language. Catalan nationalists, in fact, point to a different historical moment as the genesis of the country: the conquest by the army of Philip V of Barcelona during the War of the Spanish Succession was, in their eyes, the moment Catalunya lost its independence. The rule of Francisco Franco from the end of the Spanish Civil War to the late 1970s stifled both the autonomy and language of the region, but following his death and the reemergence of Spanish democracy, Catalunya secured political autonomy in the form of its own parliament and executive, the Generalitat. The most recent flashpoint in this conflict is the economic crisis, with some Catalans contending their taxes keep the rest of Spain “afloat.” Madrid maintains that unilateral secession would be counter to both the Spanish Constitution and international law, and has condemned the October 1st independence referendum. Meanwhile, Puigdemont contends that “the right of self-determination is an irrevocable right of all nations” and plans to go ahead with the independence referendum and, should popular support be present, secession. A founding principle of the United Nations is the “self-determination of peoples.” However, subsequent resolutions have qualified what might otherwise be construed as a fundamental right to unilateral secession. UN Resolution 2625 reaffirmed this right to self-determination in the context of colonialism, noting the “subjugation, domination and exploitation” inherent to this system contrary to fundamental human rights. However, that Resolution went on to note that this statement should not be construed to support action that would “dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States . . . possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.” The Canadian Supreme Court, interpreting Resolution 2625 in the context of the proposed secession of Quebec, held that the right to unilateral secession only arises in cases where “‘a people’ is governed as part of a colonial empire; where ‘a people’ is subject to alien subjugation, domination or exploitation; and possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.” Effectively, the right to self-determination within a state comes before a right to secession: “when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession.” Notably, Kosovo is a recent example of a unilateral declaration of independence. However, the ICJ in its advisory opinion on that case “explicitly dodged” the question of secession, leaving the legal status of the practice largely unsettled; its ruling instead stated that “general international law contains no applicable prohibition of declarations of independence.” As such, the Canadian Supreme Court opinion, while certainly not binding precedent, carries more weight in the scholarship than it otherwise might as one of the few meaningful judicial interpretations of Resolution 2625 in the context of unilateral secession. Assuming Catalunya does not qualify under the colonial category, it would have to fit into one of the latter categories articulated by the Canadian Supreme Court to be an exception to the rule against dismemberment of territorial integrity of representative democracies. The standard of review under international law, given the ICJ’s reticent ruling on Kosovo, is uncertain, but the general inquiry would likely involve an assessment of whether the Catalan people are subject to Spanish subjugation, domination, or exploitation, or whether they have been denied right to self-determination within the state. So, have the Catalan people been subjugated, dominated, exploited, or denied the right to self-determination within the state? Puigdemont himself has characterized Catalunya’s relationship with Spain as “three centuries under Spanish rule,” and has pointed to recent efforts by Madrid to block the independence referendum as a “de facto state of siege.” The October 1st referendum in some respects served to underscore this point; riot police deterring voters with rubber bullets, shutting down polling stations, and seizing ballot boxes certainly has the appearance of subjugation. Should Madrid reject a declaration of independence, a 90 percent vote in favor of leaving Spain (despite around 40% participation), might be construed as a denial of the right of self-determination. On the other hand, relying on the preference for internal self-determination in representative democracies apparent in Resolution 2625 and the Canadian Supreme Court opinion on Quebec, there’s an inquiry to be made as to whether Catalunya has truly reached the point of last resort. The Generalitat and the region enjoy a substantial amount of autonomy—its elected parliament has power over education, health, and welfare, and the region has its own police force, the Mossos D’Esquadra (who, notably, disobeyed the national government in refusing to shut down the referendum, leaving the task to the Guardia Civil). If Kosovo is the best factual precedent for secession—an inexact precedent at that, given that the ICJ avoided the specific legal question—there’s a valid case to be made that the current state of affairs in Catalunya falls short; arguably it looks more like Quebec than Kosovo. However, should the events of October 1st become a trend rather than an isolated event, should Madrid revoke Catalan autonomy (under Article 155 of the Spanish Constitution) and refuse to negotiate a peaceful solution, the Catalan case becomes more convincing.
 See Diego Torres, The Puigdemont Factor, Politico (July 27, 2017, 4:02 AM), http://www.politico.eu/article/catalonia-independence-referendum-spain-the-carles-puigdemont-factor/.  Catalonia region profile, BBC (Aug. 22, 2017), http://www.bbc.com/news/world-europe-20345071. See Raphael Minder, Protest in Catalonia Adds to Pressure Before Independence Vote, N.Y. Times (Sept. 11, 2017), https://www.nytimes.com/2017/09/11/world/europe/barcelona-catalonia-independence-demonstration.html?mcubz=0.  Catalonia region profile, supra note 5.  Alfons López Tena, Here’s why Catalonia should secede from Spain, and why it won’t, Business Insider (Feb 15, 2016), http://www.businessinsider.com/why-catalonia-should-secede-from-spain-and-why-it-wont-2016-2.  See Ministerio de Asuntos Exteriores y Cooperación, Sobre la eventual declaración unilateral de independencia de Cataluña y el Derecho Internacional, Gobierno de España (May 17, 2014), http://www.exteriores.gob.es/Portal/es/SalaDePrensa/Actualidad/Paginas/Articulos/20140517_ACTUALIDAD1.aspx (stating “Ni del Derecho Constitucional ni del Derecho Internacional puede colegirse la existencia de tal derecho [de secesión].”  Carles Puigdemont, Sorry, Spain. Catalonia is voting on independence whether you like it or not, Washington Post (Sept. 22, 2017), https://www.washingtonpost.com/news/democracy-post/wp/2017/09/22/sorry-spain-catalonia-is-voting-on-independence-whether-you-like-it-or-not/?utm_term=.d5782e2c532b.  U.N. Charter art. 1, ¶ 2.  G.A. Res. 25/2625 (Oct. 24, 1970).  Id.  Reference re Secession of Quebec,  2 S.C.R. 217 (Can.).  Id.  Thomas W. Simon, Remedial Secession: What the Law Should Have Done, fron Katanga to Kosovo, 40 Ga. J. Int’l & Comp. L. 105, 109 (2011).  Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2010 I.C.J. (July 22).  See, e.g., Simon, supra note 13 at 144; Milena Sterio, The Kosovar Declaration of Indpendence: “Botching the Balkans” or Respecting International Law?, 37 GA. J. Int’l & Comp. L. 267, 280 (2009); Timothy William Waters, Misplaced Boldness: The Avoidance of Substance in the International Court of Justice’s Kosovo Opinion, 23 Duke J. Comp. & Int’l L. 267, 314.  Puigdemont, supra note 7.  Raphael Minder & Ellen Barry, Catalonia’s Independence Vote Descends Into Chaos and Clashes, N.Y. Times (Oct. 1, 2017), https://www.nytimes.com/2017/10/01/world/europe/catalonia-independence-referendum.html.  Id.  David Child & Charlotte Mitchell, Catalonia independence referendum: All you need to know, Al Jazeera (Oct. 1, 2017), http://www.aljazeera.com/news/2017/09/catalonia-independence-referendum-170927083751915.html.  Hannah Strange, Spanish police issue plea for reinforcements, saying Catalan harassment ‘bad as ETA heyday,’ Telegraph (Oct. 3, 2017), http://www.telegraph.co.uk/news/2017/10/03/spanish-police-issue-plea-reinforcements-saying-catalan-harassment/.  Xavier Vidal-Folch, Comparing Catalan independence to Kosovo makes no sense, El País (Aug. 17, 2017), https://elpais.com/elpais/2017/08/16/inenglish/1502869534_645689.html; see also Gordana Filipovic & Misha Savic,Serbia Criticizes EU for ‘Hypocrisy’ After Catalan Vote, Bloomberg (Oct. 2, 2017), https://www.bloomberg.com/news/articles/2017-10-02/serbia-criticizes-eu-for-hypocrisy-on-catalan-kosovo-votes (quoting European Commission spokesman Margaritis Schinas, “situation is not comparable…[f]or the recognition of Kosovo, there was a very specific context.”).  Alasdair Fotheringham, Catalan referendum: Spanish government could impose direct rule on Catalonia, Independent (Oct. 2, 2017), http://www.independent.co.uk/news/world/europe/catalan-referendum-spanish-government-direct-rule-catalonia-independence-police-violence-vote-a7978291.html.