Was it illegal for Spain to declare the Catalan independence referendum illegal?

Question

Spain declared the independence referendum of Catalonia illegal. At the time this was reported I was shocked that nobody objected to the Spanish Government's declaration. Even now (two years later), there is next to nothing coming up on a Google search.

The reason I am surprised is because of International Law, which states that all people have the right to self-determination.

Perhaps I just don't understand how these laws work together, but isn't that law binding on Spain and thus Spain can't legally prevent anybody from exercising their rights to self-determination?

Answer 1

As you correctly state, the International Covenant on Civil and Political Rights asserts that

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

However, it doesn't define peoples or self-determination. The position of the Spanish government, which as you have noted appears to be widely supported by other governments, is that the citizens of Spain form one people. The background of decolonisation is important context for interpreting that word, and while some Catalan independence theorists argue for the invalidity of the Spanish state on the basis that the wrong side won the War of the Spanish Succession, I've never heard any of them make a case that Catalonia is a colony of Spain.

As to the second term, as one expert puts it (and the whole article is worth reading),

it's most often interpreted as the right of a population to determine how they are governed and who governs them. In other words, self-determination in today's world most often pertains to choices within an existing country rather than as a path to new statehood.

Thus while Catalonia sends diputados and senators to the Cortes Generales, the Catalans are in fact exercising their right to self-determination.

Answer 2

A useful - and fairly authoritative - opinion on the international law aspect of this comes from the Canadian Supreme Court in its Reference re Secession of Quebec in 1998.

It held (emphasis mine):

Although much of the Quebec population certainly shares many of the characteristics of a people, it is not necessary to decide the "people" issue because, whatever may be the correct determination of this issue in the context of Quebec, a right to secession only arises under the principle of self-determination of people at international law 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. In other circumstances, peoples are expected to achieve self-determination within the framework of their existing state. A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self‑determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states.

If you want a text that relates this to Catalonia, I suggest this text from the Duke Journal of Comparative & International Law, which concludes on page 76 that:

like Quebec, Flanders, Scotland, and Catalonia are neither saltwater colonies possessing a right to external self-determination nor victims of repression such that a right to remedial secession would apply. In short, Flanders, Scotland, and Catalonia are only entitled to⎯and already possess⎯internal self-determination.

The question of whether Catalans are a "people" is not relevant: Catalonia does not have the right to secede - and hence no right to a referendum on secession - under international law because its people already exercise their right to self-determination as part of Spain. Everything beyond that is a matter for Spanish domestic law.

Answer 3

In the case of the 2014 referendum, the Spanish high court declared that such a thing wasn't allowed under the Spanish constitution since the referendum was unilateral on Catalan's part.

The Catalans went ahead with their referendum anyway (even though it had no legal value), and 81% of the people voted in favour of independence, but the turnout was only 42%. So only about a third explicitly indicated they want to be independent. In addition, polls show that the Catalan population is roughly evenly split on the question. It's not surprising that the actual vote was so different from the polls, since one side had already "won" before the vote was even held, resulting in a lower turnout for especially that side. In a way the actual vote can be considered less accurate than the polls.

So it's not as clear-cut as "the Catalan people" want independence; it's more "about half the Catalan people want independence".

The current situation is one of compromise; the Catalan region was given more autonomy wit the 2006 Statute of Autonomy of Catalonia. So it's not as if the Catalan independence movement is being completely ignored by the Spanish government.

The thing is that 55% of the people deciding what happens 100% of the time is only marginally more democratic than 45% of the people deciding what happens 100% of the time. A compromise to meet both viewpoints to some extent is perfectly reasonable.

Answer 4

As explained in the Wikipedia article on self-determination you link:

Most sovereign states do not recognize the right to self-determination through secession in their constitutions.

(And this includes Spain.) The key words here being "through secession". There's an obvious tension between territorial integrity (a cornerstone of international law) and self-determination through secession. So the better question is how comes sometimes we see results like Kosovo:

Kosovo unilaterally declared its independence from Serbia on 17 February 2008. Since then, its statehood has been recognized by 69 countries, including the United States and most European Union nations. Serbia and Russia are among the majority of States rejecting its independence. Serbia sought international validation and support for its stance that the 2008 Kosovo declaration of independence is "illegal" at the General Assembly. On 8 October 2008, the General Assembly of the United Nations adopted resolution 63/3 in which, referring to Article 65 of the Statute of the Court, it requested the Court to render an advisory opinion on the following question: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?” [...]

The Court further found that previous condemnations by the Security Council of unilateral declarations of independence had to be seen in their specific context noting that the illegal character of those declarations stemmed from the direct connection with the unlawful use of force or other serious violations of international norms of jus cogens character. However, the Security Council has never taken this position with respect to Kosovo. Further, the Court reasoned that the exceptional character of those resolutions containing a condemnation of a declaration of independence confirmed the absence of a general prohibition against unilateral declarations of independence under international law.

The Court further determined that the law applicable to the situation on 17 February 2008 was made up of Security Council resolution 1244 (1999) and the UNMIK (United Nations Mission in Kosovo) regulations promulgating the Constitutional Framework for Provisional Self-Government defining the responsibilities relating to the administration of Kosovo.

To determine whether the declaration of independence constituted a violation of these laws, the Court first addressed the question of the identity of the authors of the declarations. The Court found that the authors should be regarded as representatives of the people of Kosovo, acting outside the framework for the interim administration. In accordance with the Court’s reasoning this further means that due to the fact that there is no specific request addressed to the representatives of the Kosovo Albanians to comply with certain aspects of Security Council resolution 1244, they cannot be considered as legally prohibited from issuing a declaration of independence.

Further, based on the arguments that the authors of the declaration of independence were not part of the Provisional Institutions of Self-Government and the fact that the declaration could not be regarded as an act intended to ‘take effect (..) within the legal order in which the Provisional Institutions operated’, the ICJ held that the declaration cannot be seen as violating the Constitutional Framework established under UNMIK.

The Court thus concluded by ten votes to four “that the adoption of the declaration of independence of 17 February 2008 did not violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework [adopted on behalf of UNMIK by the Special Representative of the Secretary-General]”, and that “[c]onsequently the adoption of that declaration did not violate any applicable rule of international law”.

So basically to fly at UN/ICJ, the unilateral declaration needs their prior (tacit) nod, at least in the form a provisional government framework (essentially a provisional constitution) approved by the UN, effectively removing the territory from the rulings of its former owner-state constitution. Furthermore, that provisional constitution must at the very least not prohibit the unilateral declaration. And that didn't happen in the case of Catalonia, so Spain's constitution (which has such prohibitions) still applied. So, no, it wasn't illegal for Spain to declare the Catalonia referendum illegal, at least not under the interpretation that ICJ gives to such matters.

Answer 5

There are several things about this international law:

• As noted, no one is able to enforce it.

• In its strongest interpretation, it means that every people has a right to democracy : North-Korean (and some others) are a lot less "self-determinating" than Catalans which have a right to vote for representatives of their own.

• This right to self-determination does not mean that everyone can ask for sovereignty. Else, you would just organize a referendum in your family, and you could stop paying taxes or start killing everyone in "your" country.

So the international law does not ask for Spain to let this referendum be.