Christoph Hasselbach 10.10.2017
The right of peoples to self-determination is an important principle of international law, but equally important is the protection of the territorial integrity of a state.
In Spain, the Catalan separatist movement argues mainly with the right of self-determination, while the central government in Madrid uses the second.
Under international law, there is no right to secession – unless both sides agree with that option. Which, of course, is not the case on the Catalonia issue.
The creation of new countries is not always a problem. When the Czechs and Slovaks split in 1992, the departure was by mutual agreement. When several African peoples declared their independence in the 1950s and 1960s, the colonial powers came to resist, but the right of the peoples to self-determination was a fundamental principle of the United Nations.
But international law expert Stefan Talmon thinks that, in the case of Catalonia, separatists cannot rely on this principle: “The principle of self-determination of a people presupposes that there is a people that can invoke it. Part of a people within of a national state, even if it has a certain identity, it is not a people in the sense of international law, that can claim this self-determination “, he explains.
In Germany, for example, if the inhabitants of the state of Bavaria decided to separate themselves from the rest of the country, they could not allude to the right of self-determination. According to Talmon, the same goes for the Kosovo Albanians, who declared independence from Serbia in 2008, but whose status under international law remains an open question. Serbia continues to see Kosovo as part of its national territory.
In 2010, the International Criminal Court concluded that Kosovo’s declaration of independence does not violate the principles of international law, but the court did not define a position on status and confirmed UN Resolution 1244, which guarantees sovereignty and the territorial integrity of the Republic of Yugoslavia, which has Serbia as one of its legal successors.
On the other hand, since then, more than half of the nearly 200 UN member countries have recognized Kosovo as an independent state – but Spain is still not among them today, not least because the government in Madrid fears that a precedent will be set for Catalonia. and possibly to other territories that seek independence in the country.
No right to independence
Scotland is a different case. Under former Prime Minister David Cameron, the British government was not legally required to agree to a referendum on Scottish independence from the United Kingdom. Even so, it allowed a popular consultation in 2014 to clarify the issue politically.
Police and voter clashes leave injured in Catalonia
Result: a majority of 55% (against 45%) voted for Scotland to remain in the United Kingdom. Even the decision for Brexit – taken also after a popular referendum – has changed practically nothing in the opinion of Scots. The question of an independent Scotland, therefore, seems to be resolved – at least for now.
And Catalonia? Today it is no longer possible to speak of repression of Catalans or Catalan culture, as was the case in the times of Francisco Franco’s dictatorship, between the 1930s and the late 1970s. Catalonia has broad autonomy. In this context, Talmon does not see a legal basis for the Catalan separatist movement. “Neither in Spanish constitutional law nor in international law is there a right to independence for Catalonia,” says the expert.
Sabine Riedel, from the German Institute for International Affairs and Security (Stiftung Wissenschaft und Politik), argues that Catalan separatists cannot claim the creation of a state of their own based on constitutional law, and the requirement also runs counter to international law, since they have autonomy rights.
If separatists were able to impose a secession, the consequences, according to Riedel, would be unpredictable: “If we question agreed treaties between countries, we will have new conflicts and, possibly, there will be war again in Europe.”
Existing countries do not want separatism
Not only international law, but European law also protects the current situation. Article 4 of the Treaty on European Union states that States respect both “their respective national identities, translated into their basic political and Constitutional structures, including regional and local self-management”, and their “territorial integrity”. That is: secessions are unwanted. Furthermore, in the EU , member countries always have the final say.
Talmon also makes reference to this aspect in the scope of international law: “International law is made by the countries that exist. Therefore, it is very resistant to changes in the area of territorial integrity. Nobody is going to saw a branch on which he is sitting” , he argues.
If countries agreed to splits “based on subjective perceptions of identity” from specific groups or territories, in a short time there would not be just 200, but 300 or 400 countries in the world, says Talmon.
The Catalan “foreign minister”, Raül Romeva, says that the European Union “can evolve”, since it is a “dynamic and pragmatic project that adapts to reality”.
But that does not seem to be the case. European Commission President Jean-Claude Juncker has already warned that “Catalonia could not become a member of the EU the day after the referendum”. Which means that Catalonia would have to start a process of joining the bloc to regain the euro as a currency and access to the European market – conditions that it would lose after the separation from Spain.
In the case of an application, it would be enough for a Member State to oppose Catalan accession to prevent it from materializing. Spain would certainly be that opposite voice, probably being imitated by other member countries that also fear separatist movements. Both politically and legally, therefore, Catalan separatists have little chance.