On Monday the 2nd of October, 90% of Catalan votes declared their wish for independence from the rest of Spain. The Catalan region is located in the eastern part of Spain and is mostly known for the city of Barcelona. The central government in Madrid has already threatened to arrest the Catalan mayors who support the referendum, as they consider it an illegal referendum. This article will further analyze the legality of the referendum in the light of both Spanish constitutional law and international law.
The definition of whether Spain is as a federal or unitary state is under debate. Most Spanish sources will confirm Spain to be a unitary state, whereas other scholars qualify the state as federal. The difference in classification lies with the constitutional guarantee of local regions. In order to qualify a state as federal, the local regions must be defined and have certain constitutional powers. These powers must be entrenched in the constitution and can only be changed via amending the constitution. Most constitutions classify themselves as a federation- in the Spanish constitution, there is no such classification.
The autonomous regions in Spain, however, classify the country as a federal state. So far, there are three autonomous regions: Basque, Catalonia, and Galicia. The current referendum is worrying for the central government, as it asks the question of who will separate next. This is indeed a serious question, since Spain was formed of many kingdoms for a long time until the marriage of Isabelle of Castille and Ferdinand of Aragon in 1469. Regardless of whether Spain will remain a state as we know it is, however, unimportant in comparison to the legality of the current referendum. What is important is the earlier discussed argument of whether Catalonia is an autonomous region.
According to the Spanish government and constitutional court, the referendum is illegal. It should, according to the government, never have taken place and is now invalid. International law, on the other hand, highly values the right to self-determination. According to international law, people have to right to determine their own matters. These ideas mostly took shape after the ideas of Locke and Woodrow Wilson. Under international law, a state is considered a state when it complies with three factual matters: territory, population, and self-government. It is because Catalonia is such an autonomous region that it suits all three of these qualifications. It has its own well-defined territory with a population and its clear sovereign government. Though the latter is arguably vague – since Catalonia is technically under Spanish central rule for all the powers – it has not been granted in the constitution.
One might, however, also argue that especially since its powers have been constitutionally agreed, it is more sovereign than the average municipality. In addition, a state can never separate against the will of a colonial power without a transition to full sovereignty. The referendum is a clear indication that the Catatonia people wish to invoke the right to self-determination. It is therefore well within the limits of international law to seek independence via a referendum.
In its judgment on the declaration of independence of Kosovo, the International Court of Justice had given several criteria upon which to judge these type of acts. Important to notice is that Spain, in this case, argued that such declarations violated international law because they were against the state’s sovereignty. Spain did, however, recognize the authority of the Court without prejudice. The ICJ, however, decided in the Kosovo case non-self-governing people and territories subject to subjugation, domination, and exploitation have the right to separate themselves under international law. Despite the terminology of ‘non-self-governing’, it is highly questionable that Catalonia is subject to such matters.
The main reasons for wanting to leave Spain is the amount of money paid every year, the difference in traditions, and the fact that most people want to be independent. These reasons do not fall into the same category of circumstances Kosovo suffered at the hands of Mladic. On the other hand, having different traditions (most obviously the act of bullfighting being forbidden) and the wish to be independent falls under the category of self-determination. As discussed earlier, this right is one that weighs very heavily upon the international community. The flip side is that, despite the gravity of this right, protection can also be achieved through the UN Declaration on the Rights of Indigenous People. Independence of the government is a very drastic measure.
The Court, however, also declared in its judgment that international law does not prohibit unilateral declarations of independence. It is therefore not illegal for the Catalan region to proclaim independence. The claim of the central government in Madrid that the referendum is illegal therefore seems void when taking international law into account. This is interesting, as international law trumps national law. Does this help the Catalans? Unfortunately not. As stated by the ICJ, despite a declaration of independence being legal, it does not create active statehood. In order for the Catalans to become a fully sovereign state, they need to be recognized as such. Recognition is, unfortunately, a political matter and not one that seems highly favourable for the Catalans.
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