Catalonian Crisis:  Rule of Law v. Democratic Opposition

Ambassador Jaime S. Bautista

The crisis in Spain’s autonomous region of Catalonia posed the question whether the Catalans “democratic opposition” to Spain’s Constitution of 1978 could prevail.  The Spanish Constitution was a work of reconciliation by all the political parties of Spain (including the Communist Party of Spain), after Franco’s death, and it was approved at a national referendum in which Catalans overwhelmingly voted in favor.

Last September, Catalonia’s Parlament voted to call a unilateral referendum for independence on October 1 but Spain’s Constitutional Court ruled that the referendum would be illegal. The Spanish Constitution provides that “National sovereignty belongs to the Spanish people, from whom all State powers emanate” and that “The Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible self-government of the nationalities and regions of which it is composed and the solidarity among them all.”

The unilateral referendum took place despite efforts by the Spanish Government headed by Prime Minister, Mariano Rajoy, to prevent it from taking place.  The Catalan autonomous Govern headed by Prime Minister Carles Puigdemont claimed that the referendum had a turnout of 43% and that the vote was overwhelming in favor of the independence of Catalonia as a republic.

On October 27, the Catalan Parlament declared Catalonia an independent republic by a secret vote of 70 out of 135 members (with the opposition walking out of the session).  The secret vote was a sign of weakness.  The Parlament met while the Spanish Senate was also meeting, poised to vote on the application of Article 155 of the Spanish Constitution.  This was the constitutional measure, similar to other constitutions in the European Union, designed to restore legal order in Catalonia. For a while, there were efforts to persuade Puigdemont to refrain from announcing unilateral independence and to call for autonomous elections as a compromise to avoid Section 155. 

With the approval of Section 155 by the Senate, Rajoy removed Puigdemont from office and called for autonomous elections on December 21, thereby dissolving the Parlament.  These measures, Rajoy explained, do not suspend Catalonia’s autonomy.    Spain’s Constitutional Court subsequently declared the unilateral declaration of independence as a nullity.

Rajoy justified the extraordinary application of Section 155 as restoring the rule of law.  The Catalan separatists’ argued that their democratic right to vote for independence overrides any decision of the courts.  The standoff was between the State’s derecho de estado, recognized by the international community, versus the Catalan separatists perceived “people power” relying on civil disobedience and the parliament of the streets.

The Spanish flag remained flying beside the Catalonian flag, outside the Parlament, on the first working day following the dramatic events.   The Mossos, Catalonia’s regional police, obeyed the orders of the national government to prevent the Catalan republicans from holding office.  Puigdemont fled to Brussels where he made a call for “democratic opposition”, seeing the autonomous elections as a plebiscite on independence.  Puigdemont and his senior officials now face rebellion and other criminal charges.

No Right of Secession.  The Catalan separatists cannot claim a right to secede under either the national law or international law. The principle of self-determination is applicable to peoples under colonial rule and does not give minorities the right to secede from an established state. The UN Charter in its Article 1 (2) speaks of the principle of self-determination of peoples as a basis for achieving the purposes of the United Nations to develop friendly relations among nations and to strengthen universal peace.

Pursuant to this provision, the UN General Assembly approved the 1960 Declaration of Independence to Colonial Countries and people which sought to end colonialism in all its manifestations.  This Declaration sought to give peoples under colonial rule or foreign domination the right to secede.  At the same time, Paragraph 6 thereof declared that “Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.”  The right to secede from an established state does not exist.

Under the influence of the decolonization process, the principle of self-determination was enshrined in Article 1 of both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (ICCPR). Section 27 of the ICCPR did not include secession as among the rights of minorities.

In light of this historical context, the Canadian Supreme Court in the leading case of Reference Re Secession of Quebec Case declared that “international law expects that the right of self determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states” and that the right to unilateral secession “arises only in the most extreme of cases, and even then, under carefully defined circumstances.”

Catalonia, as an autonomous region of Spain, exercises the same rights of self-government as the other autonomous regions of Spain. The County of Barcelona was part of the Kingdom of Aragon and later of Spain, and Catalonia was never an independent state. As stated by Rajoy, it is inconceivable to think of Spain without Catalonia or of Catalonia outside of Spain.

Does a state have a right to secede from a union?  Cognizant of this historic fact, the previous autonomous government of Catalonia headed by Artur Mas had previously attempted to hold a referendum, with one question containing two sections: 1) Do you wish Catalonia to be a State?  2) if the response is affirmative, do you wish Catalonia to be independent? 

The first question sought to place Catalonia on the same standing as Scotland because the latter was empowered to hold a referendum on independence in 2014.  But Scotland has a long history of having been an independent kingdom until it formally joined with England and Wales in 1707 to form the United Kingdom of Britain.  Nevertheless, the UK Parliament had to pass an Order in Council granting the Scottish Parliament the necessary powers to hold the referendum.

Whether a state has the right to secede from the union depends on the national law of the union.  Quebec also held a referendum on independence in 1995 without the opposition of the federal government.  When there was a threat to hold another one, the Canadian government turned to the Canadian Supreme Court, which ruled in the case quoted above that Quebec’s legislature did not have the right to effect the secession of Quebec unilaterally.

The United States of America also holds that there is no right of a state to secede from the union.  President Abraham Lincoln had argued that “the states were not sovereign before the Constitution but instead, they were created by it.”  The US Supreme Court ruled in Texas v. White in 1869 that: “The union between Texas and the other states was as complete, as perpetual, and as indissoluble as the union between the original states. There was no place for reconsideration or revocation, except through revolution or through consent of the States.”  The Court further held that all acts of secession were illegal according to the “perpetual union” of both the Articles of Confederation and the subsequent Constitution for the United States. The exceptions were “revolution or the consent of the States,” but without either, secession could never be considered a legal act.  In more recent times, Supreme Court Justice Antonin Scalia, who was asked to comment on this issue of secession, said: “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede” as the Pledge of Allegiance clearly illustrates through the line “one nation, indivisible.”

On the other hand, the federal states in the USSR and Yugoslavia succeeded in obtaining their independence.  The secession from a union also depends on political factors.  In the USSR, the weakness of the USSR government headed by Mikhail Gorbachev allowed the disintegration of the USSR.  The Baltic states of Lithuania, Latvia and Estonia were the first to withdraw from the USSR.  They had gained international support, as they were independent sovereign states before their annexation by the USSR.  The Belavezha Accords signed by Russia, Ukraine and Belarus signaled the end of the USSR.  They  proclaimed that the Soviet Union of the three had ceased to exist and announced the formation of the Commonwealth of Independent States. The three were the most powerful federal states, and were  original members of the United Nations (Russia is the successor state of the USSR).  The other federal states in the Caucasus and Central Asia confirmed the dissolution of the USSR when they signed (except for Georgia) the Alma-Ata Protocol.

In the Socialist Federal Republic of Yugoslavia, its Constitution permitted the referenda on independence held by Slovenia, Croatia, Macedonia and Bosnia-Herzegovina.  Its six constituent federal states were nominally equal members of the federation with the right to separate.  After the dissolution of the SFRY, Serbia and Montenegro formed a new federal union but Montenegro subsequently seceded from this union.

Referenda  in Crimea and Catalonia.  The referendum in Crimea in 2014 raised legal issues similar to those in Catalonia.  Both Crimea and Catalonia were autonomous regions when they held their referendum.  Ukraine argued that the referendum in Crimea was unlawful because it violated the provision of the Ukrainian Constitution that only a referendum where all the citizens of the Ukraine had a right to vote could approve territorial changes and because the Supreme Council of Crimea was not authorized to conduct the referendum.  

The West supported Ukraine’s position that the referendum violated both the Ukrainian and Crimean constitutions, and the territorial integrity of Ukraine.   The Council of Europe’s Venice Commission stressed that self-determination was to be understood primarily as internal self-determination within the framework of the existing borders and not as external self-determination through secession.

Kosovo as a Precedent.  Russia, however, justified the unilateral declaration of independence citing Kosovo as the precedent. Serbia protested Kosovo’s declaration of independence on the ground that Serbia enjoyed sovereignty over Kosovo and that the declaration represented “a forceful and unilateral secession of a part of the territory of Serbia.”  The UN General Assembly supported Serbia’s request for an advisory opinion from the International Court of Justice. 

The United States and many countries in Western Europe recognized Kosovo’s independence although it was an autonomous province of Serbia.  Spain and the Philippines and other countries affected by separatist sentiments declined to recognize Kosovo.

ICJ Opinion.

The ICJ addressed only the issue posed to it by the UN General Assembly, which was:  “Was the unilateral declaration of independence in accordance with international law? The ICJ stated that based on state practice in the 18^th, 19^th and early 20^th centuries, there was no international law prohibiting the unilateral declaration of independence. Neither did the emergence of the principle of self-determination in the second half of the 20^th century produce a new international law from the creation of new states outside this principle.  The ICJ, by a vote of ten to four, concluded that the Kosovo Declaration of Independence did not violate any norm of international law.  The ICJ declined to give its opinion on corollary issues such as the effect on territorial integrity or the issue of “remedial secession”, stating it was unnecessary.   

The ICJ, however, commented on the UN Security Council Resolutions which condemned the unilateral declarations of independence of Southern Rhodesia, northern Cyprus, and the Republika of Srpska (located in Bosnia-Herzegovina). The ICJ noted that the illegality attached to those declarations stemmed not from their unilateral character, but from the unlawful use of force or other egregious violations of norms of general international law.  In the case of Kosovo, the ICJ noted that the Security Council never suggested that there may have been such a violation. The exceptional character of those UNSC Resolutions appear to confirm that no general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council, the ICJ concluded.

Kosovo’s recognition was treated as a case sui generis because Kosovo was under UN interim administration and the ICJ did not find any violation of UN Security Council Resolution 1244 and the regulations promulgated thereunder by the UN Mission in Kosovo.

Final Remarks. The issue of secession is both a legal and political issue.   Catalonia has no right to secede under either the national law of Spain or the norms of international law.  The Spanish government, however, was constrained to call autonomous elections to restore normalcy and reconciliation.  The autonomous elections will again provide a forum to examine the issues that gave rise to the unilateral secession.  The hope is that the electoral debates will also involve meaningful dialogue and understanding and lead to convivencia and harmony.