International legal and political discipline are both in a constant struggle to keep a balance between the two most fundamental but seemingly contradictory principles of self-determination and territorial integrity.

This debate which cannot be resolved only by a legal basis is quite thought provoking today with the rise of voices for and against the Catalan independence from Spain. International legal and political scholars, world leaders and Catalans themselves vary in their opinion in the ‘right’ and the ‘need’ of Catalonia for self –determination.

The Catalan President Quim Torra says that Spain never has an answer to their question and he questions why the Catalans may not do something like the Scottish people did. He also insisted that he has a strong mandate to push for another referendum. The recent poll conducted by the Catalan newspaper El Periodico shows that 21.5% is for an independent republic while 62% is asking for increased self-governance. Until Torra’s presidency in May Catalonia was under direct rule from Madrid since October 2017. The then Spanish Prime Minister Marino Rajoy responded to the ex- disposed Catalonian President Carles Puigdemont’s unilateral independence referendum and the declaration of independence by forcing the Catalan President and his Cabinet to call new elections.

These controversial political turnovers bring the question of whether Catalonia has a right to self-determination. It can be observed that there is lot of flag waving with emotions but much less reasoned arguments. The ex- President Puigdemont stated that a vote on independence is an ‘expression of a free democracy’.  Nevertheless, it has not to be misled that democracy in this particular context has both edges to cut for and against independence.

The democracy argument, according to Oberman, fails to overcome the ‘symmetry problem’ which is almost ubiquitous in an issue of self-determination, especially in this particular era. He says that justification of ‘asymmetry’ is quite needed to justify secession. his symmetry argument brings out the question of why it is Catalonia and not Spain as a whole that has a right to decide. National self-determination also suffers from the symmetry problem as the Catalan national self-determination butts up against Spanish national self-determination.

It is this contradiction that raises the issue whether Catalonia has a right to secede and, in that case, whether its right to self-determination outweighs Spain’s right of national and territorial integrity. This seemingly contradictory legal principles are balanced out in the international legal disciplines as complementary to each other, by interpreting self-determination as both internal self-determination and external self-determination. What is meant by internal self-determination is the participation of the minority communities and basically of every citizen in a state to participate in the governance of that state.

It is generally accepted that, if a particular state enjoys every community’s political participation in its governance, it has ensured the right of internal self determination to all the communities and hence no question as to a right of minority communities’ self-determination may arise and that its national and territorial integrity is not threatened with the principle of self-determination.

Professor Guibernau states that right to self-determination is not applicable in plural democracies that respect minorities. However, she claims that Catalonian minority was long ignored in Spain by the Article 155 and with the imprisonment of pro-independence politicians the self-determination would be justified as right. Nevertheless Professor Vallespin contests to this argument that self-determination has to be applied in former colonies where there are overt injustices against the minorities and that territorial integrity in other cases do not fall under this category.

He also brings out that unlike in cases like Kosovo, Catalonia does not meet the necessary conditions and would fail to gain the international recognition. Hence it is necessary to refer to what the domestic law says. Here one may bring in the argument on Spain’s fiscal redistribution. The clichéd argument justifying the Catalan’s right to self-determination is that Catalonia does not get back as proportionate to what they contribute to the Spain’s national economy. Oberman argues that, while there might be nuanced complaints to be made against Spain’s fiscal arrangement, they do not amount to profound injustices that may merit a secession.

In that case, it would be argued that plebiscitary democracy is the best way to resolve the issue. Nevertheless, it has its own drastic consequences like the disappointed youth in the UK with the Brexit which sum up the dangers of a dichotomous referendum. As per Vallespin it hardly responds to the complicated demands of citizens of complex and plural societies as current democracies.

Though the issue is not exclusively legal, nor it can be resolved only through legal means, arguments pertaining to international law on self-determination still matters.  The Catalan crisis invites dwelling into the similar Quebec issue in Canada. In an invitation from the Canadian Supreme Court to see the legal prospects of Quebec declaring unilateral independence in the event of a wining referendum, the Court, while adding that the matter is not exclusively legal but also political held that such event alone may not render Quebec the right to secede. Rather the Court suggested that it is necessary to negotiate politically to avoid polarization. Constitutional reforms and new political agreement leaning towards federalism are more prospective in such dilemma.

As aforementioned, it is always a conundrum of whether it is the national law of Spain which presides over the Catalans’ right to self-determination. Spanish constitution proclaims that sovereignty resides in the totality of the political nation. Prime Minister Rajoy has insisted that the declaration of independence is a criminal act. Hehir argues that Spain’s refusal to accept the possibility of Catalan independence manifestly negates the very idea of self-determination. He contests that the UK, the USA, France, Germany etc. recognized Kosovo’s unilateral declaration of independence but denies that of Catalonia.

This hypocrisy, according to him is all to do with alliances and power politics than any adherence to legal/theoretical principles. In that case, it is worth noting the persistent question of where would secession end? In Catalonia there is the issue with Val d’Aran, an area of Catalonia having its own sense of independence. If Catalonia secedes, must Val d’Aron be also granted independence?

Nature of this vein of argument brings to the conclusion that it is unlikely a clear-cut provocation and professing of self-determination and national integrity alone would bring about an all fair outcome. It would most likely to be unveiling the intricacies lying deep down in a pluralistic society with minorities within minorities and majorities within minorities. Mere legal underpinning would hardly be adequate to cater to all the intricacies here. Hence, the Catalonian issue demands a more holistic approach with political, legal, economic and social dynamics being carefully scrutinized.

Image Credit: Flickr/PhotographYeah!

References

Brooks, Libby. "Catalan President Cites 'Scottish Model' in Call for Independence Poll." The Guardian. July 12, 2018. Accessed September 10, 2018. https://www.theguardian.com/world/2018/jul/12/catalan-president-cites-scottish-model-in-call-for-independence-poll.

 Hehir, Aidan. "Self-determination Is Legal under International Law – Its Hypocritical to Argue Otherwise for Catalonia." The Conversation. October 31, 2017. Accessed September 10, 2018. https://theconversation.com/self-determination-is-legal-under-international-law-its-hypocritical-to-argue-otherwise-for-catalonia-86558.

 Oberman, Kieran. "Does Catalonia Have a Right to Secede?" OpenDemocracy. October 10, 2017. Accessed September 11, 2018. https://www.opendemocracy.net/can-europe-make-it/kieran-oberman/does-catalonia-have-right-to-secede.

 Padilla, Javier, and Sergio Olalla. "The Catalan Crisis: Is There a Right to Self-Determination in the International Context?" London School of Economics. April 3, 2018. Accessed September 11, 2018. http://blogs.lse.ac.uk/eurocrisispress/2018/04/03/self-determination-catalan-crisis/