On October 1, the people of Catalonia voted to separate from Spain in an independence referendum which has been declared illegal by Spain. According to numerous news reports, Spanish police and government forces attempted to interfere with the referendum and engaged in tactics which some have criticized as repressive and “shocking.” The European Union (EU) however failed to condemn the Spanish government and instead insisted that the referendum was an internal matter for Spain and that the Spanish Constitution and rule of law should be respected.
The Catalan referendum brings back memories of the Kosovo situation in 2008. Serbian President, Aleksandar Vucic, has criticized the EU for its “hypocrisy” because of the EU’s seemingly different stance vis-a-vis the recent Catalan independence vote and vis-a-vis Kosovo’s secession from Serbia in 2008. Vucic stated, after meeting with the Greek President, “How come you’ve [EU] declared Kosovo’s secession from Serbia legal, violating international law and the foundations of European law.” In other words, the EU had essentially “blessed” the Kosovar secession from Serbia while it has, in this instance, supported Spain and failed to recognize that Catalan “right” to an independence referendum. Are the situations in Catalonia and Kosovo drastically different? What does international law say about the subject-matter of secessions?
First, the situations in Kosovo and Catalonia may be different because their respective mother states are different. Kosovo had been a part of Serbia, which, while under the rule of Slobodan Milosevic, had engaged in brutal tactics to suppress an independence-seeking rebellion brewing within Kosovo. Thus, the international community got involved – through the 1999 NATO-led air strikes and subsequently through various NATO and EU-led administrative, security-based, and civil missions. When Kosovo declared independence in 2008, United States Secretary of State Condoleezza Rice described Kosovo as “sui generis,” in part because of the international community’s strong involvement in this region. The Catalan had expressed their desire for independence and had held other independence referenda in the past, but the Spanish government had never engaged in human rights violations in Catalonia and the situation has remained peaceful. The international community itself has never been involved in Catalonia and it may be that factually, Catalonia remains an internal matter. If Catalonia is an internal matter, then, like in Scotland and in Quebec, any potential secession would need to be worked out through peaceful negotiations and a constitutional framework. If Spain says no, then Catalonia would not have the right to unilaterally secede. This is the factual argument, not based in international law. This leads me to my second point – what does international law have to say about the Catalan secession?
Second, international law is silent on secession. Almost all international law scholars would agree that international law does not entail a “right” to secession, and that secession may be tolerated in international law in rare instances, like in Kosovo, or in Bangladesh. We know from the 2010 International Court of Justice Advisory Opinion on Kosovo that international law does not specifically prohibit unilateral declarations of independence, and that international law only condemns declarations of independence procured through an illegal use of force. We also know that international law contains the right to self-determination, but, as I recently wrote in the context of the Kurdish independence referendum, it is unclear whether the right to self-determination ever applies in the non-decolonization paradigm, and whether this right can ever lead to remedial secession. It is unclear that the Catalan can invoke the right to self-determination in order to justify secession from Spain – the right to self-determination in this instance may entail simply a right to autonomy within the larger Spanish state. The Kurds may have a much stronger self-determination-remedial secession argument than the Catalan, as the former may be able to demonstrate much more easily that their mother state is not representative of their interests. Spain is a democratic nation which respects human rights, and the international law-recognized right to self-determination (leading to remedial secession) has never been invoked in this type of context before. Thus, international law, at best, begrudgingly tolerates secession in extreme and rare instances, where the mother state is not a democratic nation which respects human rights. The Catalan do not have a sound international law-based argument, and despite Spanish interference with the Catalan independence referendum, the Catalan cannot claim a particular legal right to secede.
Finally, how does one reconcile the seemingly different results (as of now) in Kosovo, Catalonia, and Kurdistan? Kosovo unilaterally declared independence from Serbia in 2008 and within a short period of time, it was recognized as a new state by many in the international community (although not by Spain – understandably so). Interestingly, almost no states among those supporting Kosovo advanced international law-based rationales for the Kosovar secession from Serbia; instead, such states continued to distinguish Kosovo as a unique situation, sui generis, a special case which should somehow not create any type of precedent in international law. Catalonia and Kurdistan have held independence referenda which have not been supported by almost any states in the international community. Many states have referred to these referenda as illegal because contrary to the wishes of their respective mother states, or as internal matters, or as not representative of any particular “rights” in international law. Accepting the argument that international law is silent on secession and does not regulate secession, it would appear that secessions are matters of domestic law. If this is the case, it appears that the international community may accept such a role of domestic law in cases where the mother state is a democratic nation or an emerging democracy whose sovereignty is deemed worth-while. This manner of reconciling different referendum results is not based in international law, but it rather reflects geo-political interests of other powerful states.