a network of constitutionalists from countries throughout the world
By Martin Scheinin, Professor of International Law and Human Rights (European University Institute, Florence)
This brief blog post addresses the purported referendum on 1 October in Catalonia, concerning the question whether that province of Spain should unilaterally proceed towards independent statehood. The purpose of this post is to provide some context to what I wrote as five separate tweets on Twitter the evening of 1 October and then on 2 October reposted as a Twitter “thread” with some additional tweets as explanations. The Twitter thread posted as @MartinScheinin reads as follows:
1. Peoples (but not all groups) have a legal right to self-determination. In exceptional circumstances, also a right to unilateral secession
1a. Decolonisation is the typical, but not the sole, case where the quest for self-determination justifies also secession as its form
2. In most cases, a people’s right to self-determination means a right to good faith negotiations about secession and internal solutions
2a. Those who claim self-determination and the nation state both must enter the negotiations in good faith, to agree on modalities for s-det
3. A group has a right to claim it is a people, and to design modalities how to ask people if they want self-determination, even secession
3a. Whether such a process of consultation or ‘referendum’ has legal consequences is not relevant for the right to ask these questions
3b. The quest for recognised peoplehood, self-determination or even secession by peaceful means is not terrorism, extremism or other crime
4. Use of state powers & police violence to stop that process is unacceptable. Actions by Spain today are unjustifiable & counterproductive
5. Sadly, having as UN Spec.Rapp. on HR & CT looked into Spain’s approach re the Basque country, today does not come as a surprise (ends)
Much of the discussion on aspirations for Catalonia’s statehood have focused on the Spanish Constitution and considerations of legality and rule of law flowing from that constitutional framework. Here it suffices to say that it is clear both that the Spanish Constitution outlaws provincial referenda concerning their unilateral secession and that stating so is trivial, as it simply addresses one side of the coin, namely the perspective of the Spanish federal constitutional order. Provincial law, EU law and international law may potentially all come to answers that are not dictated by the singular legal order of the Spanish state.
An equally unhelpful argument against secession is that international law would protect the territorial integrity of states and outlaw any action against it. The obligation to respect the territorial integrity of states is a cornerstone of international law but its addressees are other states, not the population of a country or segments of it. Other states are prohibited from violating the territorial integrity of a state through the use of military force or even the use of their sovereign powers in another state’s territory without its consent. But international law does not prohibit peoples, populations, minorities or groups from raising the flag of self-determination and even secession in respect of their own state. As will be explained below, international law protects the right to raise such claims but not necessarily their ultimate realisation.
Here, I will restrict myself to backing up the above-quoted twitter thread by providing some international law context. The principle self-determination is one of the cornerstones of the post-World-War-Two international legal order reflected in the United Nations Charter and the decolonisation process that resulted in the rapid expansion of the number of independent states in the world and also of United Nations membership. The United Nations has in many ways promoted and facilitated the creation of new independent states in various parts of the world but predominantly in the colonial context where an ocean of blue water separates the former colonial (European) power and the emergent independent country. But the process did not stop with the (close to) completion of the decolonisation project. New states have continued to emerge albeit at a slower pace, including within Europe. Mergers of previously separate independent states have meanwhile been rare. The ultimate test for statehood is recognition as a state by other states, followed by acceptance as a member state of the United Nations.
The twin Covenants of 1966, one on economic, social and cultural rights and another on civil and political rights, recognise in their common Article 1 the transformation of self-determination from a principle of international law into a human right. Exceptionally, this right has been recognised in central human rights treaties as a right of peoples, i.e. a collective right of “all peoples”. Gradually it has been confirmed that the Covenants’ reference to peoples does not merely refer to the whole population of a state but that there may be more than one people living within one state. The 1998 decision by the Supreme Court of Canada in the Quebec secession case, the evolving practice by the Human Rights Committee, the drafting and adoption of the 2007 UN Declaration on the Rights of Indigenous Peoples and the 2010 Advisory Opinion by the International Court of Justice have all contributed to this broader understanding of the right of self-determination.
It is important to emphasise that a people’s right to self-determination may take many forms, only some of which will require independent statehood and for its realisation also the process of secession from an existing state. Also arrangements for autonomy and self-government may be acceptable forms of self-determination. The distinction between ‘internal’ and ‘external’ self-determination is, however, not categorical, as arrangements that are internal to a state may nowadays entail modalities that are regional or international in nature, including through a power to negotiate and enter treaties with other sovereign states. If self-determination claims result in independent statehood, this may happen through negotiated and mutually agreed secession. Hence, the right of unilateral secession is far from synonymous with the right of self-determination but, rather, a rare exception that may become legitimate to remedy a situation of colonial domination, or grave oppression and denial of rights, including rights of participation, to a group that claims recognition as a ‘people’ and hence a right of self-determination.
It is however equally important to understand that not every group that presents a claim of being a ‘people’ and therefore entitled to the right of self-determination, will be a people for purposes of international law. Neither an ethnic or linguistic minority, nor the whole population of a region or province is automatically a ‘people’ for purposes of international law. The size, traditions, distinctiveness, ethnicity, language, religion, culture, political and social institutions, self-identification as a people, and even a state’s positive constitutional recognition of a group (but not necessarily a refusal of such recognition) will all matter in the assessment of whether a particular group is a ‘people’. Unavoidably, the contextual assessment of all these factors will depend on reactions by other peoples, other states, and the international community.
The most important lesson from the Quebec secession case is that once a group, such as the population of a province, comes forward with claims of peoplehood, self-determination and secession, this triggers a reciprocal obligation of good-faith negotiations concerning such claims. It is lawful for a group to present such claims, even a claim for unilateral secession. But as long as the existing states acts in good faith, it is also lawful that it presents its arguments against the peoplehood of the group, of secession as the appropriate form of self-determination for a group that it does recognise as a people, or the claim for non-negotiated (unilateral) secession even when it in principle accepts that the formation of a new independent state might be a valid solution in a concrete situation. References to the state’s own constitution as a non-negotiable bar to any concessions or even negotiations do not represent good faith. Neither do efforts to prevent, by the use of police powers and even force, a group from deciding whether it wishes to claim peoplehood, self-determination and secession.
The purpose of this blog post is not to assert that under international law the population of Catalonia would already have made its case for peoplehood, self-determination, secession or even unilateral secession. But under international law it does have the right to present such claims which, if emerging through a referendum or other inclusive process of consultation, would need to be addressed on the merits by Spain and by the international community. It is the purpose of this blog post to explain why blanket references to the Spanish Constitution or to the principle of territorial integrity of states are not valid excuses for not addressing the claims.
For further reading, please see the following selected posts on other blogs:
http://verfassungsblog.de/catalan-secessionism-faces-the-european-union/ (Carlos Closa Montero)