Catalan independence: an example for international law

On Sunday 1 October will we know if Catalonia become independent. On Monday 25 September it was already clear that Iraqi Kurdistan wishes to become independent. Still, in international law there is still no legal framework how independence-aspiring regions can secede from their state. In this blog, I would like to argue that the Catalan case can be used as an example for international law.

Introduction: 100 years of self-determination

On 8 January of 2018, almost 100 years ago, American President Woodrow Wilson presents his Fourteen Points to American Congress. The continent of Europe was ravished by World War I and the implosion of the Ottoman Empire and Austria-Hungary saw the creation of several new states. In this speech, President Woodrow Wilson formulates for the first time the right of self-determination:
"What we demand in this war, therefore, is nothing peculiar to ourselves. It is that the world be made fit and safe to live in; and particularly that it be made safe for every peace-loving nation which, like our own, wishes to live its own life, determine its own institutions, be assured of justice and fair dealing by the other peoples of the world, as against force and selfish aggression."
On 14 Augustus of 1941, 76 years ago, American President Franklin D. Roosevelt and British Prime Minister Winston Churchill drawn the Atlantic Charter. In this document, eight principles are outlined. The right of self-determination was once again affirmed:
"Second, they desire to see no territorial changes that do not accord with the freely expressed wishes of the peoples concerned; 
Third, they respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self government restored to those who have been forcibly deprived of them;"
The significance of these documents cannot be ignored; they form the basis of respectively the League of Nations and the United Nations.

No state recognizes in its constitution the right of self-determination or a way to secede, or even actively forbids it. Thus, secession of regions goes against the constitution. Separatists still operate outside the law and are often object to repression. The only legal framework they can turn to is international law. This is non-existent.

As the Atlantic Charter signals, the right of self-determination collides with the principle of territorial integrity. As of now, the United Nations, under pressure of some very vocal states struggling with their own separatists, values territorial integrity above self-determination. The  independence of states happens often ad hoc and only if there are no political sensitivities or geopolitical interests. Self-determination as a right is a total joke.

Catalan example

The track record of Catalan independence is not without its bumps (notably the failed 2014 referendum) but besides that it is in general how a modern independence should be. Ever since the Constitutional Court in 2011 overturned the agreements between Madrid and Barcelona for more autonomy, the National Day of Catalonia (Diada) attracts international attention by its massive parades for independence (over a million participants on a population of seven million). It is clear that Catalan independence has wide support among the Catalans.

Since 2015, the pathway to independence accelerated. The regional elections was dominated by the call for independence. Junts pel Si (Together for Yes), a political alliance between independentist political parties, won the elections with 36%. The formation of the regional government was difficult but eventually a pro-indepentist coalition was formed with the explicit goal to organize a binding referendum for independence. We will see on Sunday if they will succeed.

Since a month, the central government of Spain has boycotted the referendum through legal means. As the Spanish constitution forbids unilateral secession, the Spanish government believes they are in their right. That same constitution allows the use of the army against civilians for the protection of the territorial integrity. Last week, the paramilitary Guardia Civil has arrested high-ranking officials of the Catalan government, causing critique in international press and even comparisons with the fascist Franco. UN human rights experts have also criticized the Spanish government

European silence

The violation of the political rights of Catalan citizens is severe enough to warrant a response from the European Commission. The input of European Commission President Jean-Claude Juncker however is unsatisfying. He repeats the views of the Spanish government and even more, tells the Catalans would need to re-apply for EU membership.

That was two weeks ago, now that the repression of Spain intensified, the European Commission has not reacted. However, when Poland or Hungary allegedly threaten the rule of law, the European Commission is quick to condemn or threaten with sanctions. The silence of the EU gives the impression there are A-class and B-class member states. A-class member states like Spain are old, Western European states which get a more lenient treatment by the EU. B-class member states like Hungary are new, Eastern European states which get a harsh treatment.

If that doesn't risk alienating the europhile Catalans, then the re-application of EU membership will. This seems to be coming out of a book of Kafka, but legally speaking is EU membership not linked to the territory but to political entity. As such, if the whole of Spain but Madrid would secede, only Madrid would keep the EU membership. This is so absurd and shows the inflexibility of the EU.

American indifference

Since the election of Trump, America has become more isolationist in its foreign policy. America does not want to be the policeman of the world anymore. You can be for or against this, but seeing the disasters of the Iraq and Afghanistan invasion this is a legitimate position.

However, I do expect that America still stays committed to life, liberty and the pursuit of happiness, albeit with a more soft-power strategy. The recent positions of America regarding Catalonia and Kurdistan however makes me fear that even that minimalist foreign policy is already too much.

Regarding Catalonia, Trump has expressed his own opinion for the union of Spain, not a word about  the recent illiberal actions by Rajoy. Either Trump is ignorant on what is happening in Spain or he simply didn't care.

Worse is the reaction of the Trump administration on the referendum in Iraqi Kurdistan. The White House denounced the referendum and unequivocally supported an unitary Iraq. This can only be described as a stab in their back. The Kurdish Peshmerga have been the allies of the US on the ground since the start of the war against ISIS. The Iraqi Kurdish Regional Government provided refuge for thousands of persecuted minorities. By the standards of the Middle East, the Kurds are very liberal, committed to religious freedom and democracy. How on earth can America object to this? Both Breitbart and the National Review have condemned the Trump administration for this act of betrayal towards the Kurds.

Trump might not have the same rhetoric talent as Woodrow Wilson, but he had the chance to succeed where his predecessor failed: a sort of independent Kurdistan. He wasted that chance and he will certainly pay dearly. A civil war between Kurds and Iraqi Arabs will provide more room for ISIS and Al Qaida to rise again and it will give Iran more leverage to play its sectarian game. The laughing third might be Turkey, who already wages war against its own Kurds in the south-eastern part of the country.

Conclusion

In the previous centuries, secession came through revolution. Revolution is always accompanied by violence. There is always the issue how much support the rebels have. Although this has been the modus operandi of the 19th century, in the 21st century this is no longer acceptable.

In both Catalonia and Iraqi Kurdistan, a referendum was held to determinate the support for independence. Although referenda are just one tool, it is the tool that gives the most legitimacy. This is the way how modern states should be formed.

However, independentists cannot do this without international support. Those who claim the moral high-ground such as the EU and the USA, should do more to support peaceful state-forming. They should not appease the bullying and the cynical games of other states. They can do this by pushing for a legal framework for separatists, a clear and democratic way on how states can be formed out of other states. Catalonia leads the way how this framework should look like.
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