Independence for Catalonia: Can a Right to Self-Determination Hold Up Against State Sovereignty and Article 155?

By Laurie Morgan*

On October First, Catalans voted in favor of independence from Spain by a large majority in an unofficial referendum. Those in favor of a Catalan state have cited a right to self-determination as their legal basis to act.

Article 1 of the International Covenant on Civil and Political Rights (ICCPR), which Spain is party to, describes this right as held by “all peoples” to “freely determine their political status and freely pursue their economic, social, and cultural development.” United Nations General Assembly Resolution 1514 further elaborates on this description, and states: “[a]ny attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.” This commentary discusses whether the right to self-determination can include a right to independence despite tension with this principle of state sovereignty, and whether either right is legally and practically applicable to Catalonia.

Generally, it is agreed that the Catalans can be considered a people, and therefore subject to the right of self-determination. While there is no codified definition for a people in international law, the Permanent Court of International Justice, and later the International Court of Justice (ICJ) have expressed that the following shared characteristics have importance in determining whether a group should be considered a people: race, religion, language, heritage; and a sense of unity by the identity of these factors. Although Catalans share a dominant race and religion with their Spanish counterparts, Catalans find unity in their own language and a heritage unique from Spanish heritage.
While the right to self-determination encompasses a right to free determination of political status, this does not automatically permit a people to unilaterally establish an independent state.

In its decision on the self-determination of Quebec, the Canadian Supreme Court interpreted a distinction between internal and external self-determination. According to the Canadian Supreme Court, internal self-determination is the norm under international law, while external self-determination, which would allow the potential to assert a right to unilateral secession, is only available for the most extreme of circumstances.

This distinction, of course, begs the question: what are extreme circumstances? The ICJ has shed light on this issue in its Kosovo opinion, which stated “the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation [emphasis added].”
On one hand, Catalonia, like all other Spanish states, has long held a self-governing status with Spain so it may not fall completely under the realm of complete non-self-governance. However, Spain’s invocation of Article 155 of the Spanish Constitution, which permits the national government to “take all measures necessary” in limiting the autonomy of the self-governing states to protect the “general interest of Spain,” has certainly enhanced the quality of the argument of the Catalans seeking independence, who emphasize the difference between their semi-autonomy and the complete autonomy they seek. 

Still, in practice, peoples subject to non-self-governance or alien subjugation have not always been able to utilize a right to self-determination to enforce an alleged right to unilateral independence. Realistically, Catalans seeking freedom from alleged alien subjugation, domination, and exploitation have existing, legal options aside of independence to solve these problems, some of which may be better suited to the interests of independence-oriented Catalans.

For example, victims of the police brutality which occurred on the day of the referendum have sought domestic judicial remedies. If victims of human rights violations by the state of Spain satisfy all domestic judicial remedies, they are entitled to seek justice from the European Court of Human Rights.

Additionally, remaining part of Spain may better suit the interests of Catalans. If economic development is the independence movement’s foremost goal, independence would be disastrous for Catalonia. Both the European Union and the European Free Trade Area require unanimous agreement of existing parties to initiate a new state. It is unlikely that Spain would look favorably upon the entrance of an independent Catalan state into these agreements, especially because it would do nothing to deter other Spanish states from looking to secede.

Other Catalans seek independence for social and cultural reasons notwithstanding the potential economic blow Catalonia would need to take. This faction recognizes that independence would not necessarily solve their perceived social and cultural problems, but believes that a chance at restructuring their governmental system would be worth the substantial economic risk.

Looking forward, relying on the right to self-determination could work for Catalans, but the existence of domestic and international avenues for the resolution of issues of subjugation and exploitation indicate that, in this case, it would be difficult for this right to effectively override the principle of state sovereignty. The recent success of the pro-independence parties in the Catalan parliamentary election indicate that this issue is far from resolved. 

*Laurie Morgan is a first year law student at Georgetown University Law Center.