The recent referendum that took place in Catalonia and the aftermath it caused in Spain and around Europe highlight the inconsistent nature of the ‘right’ to self-determination but more worryingly displays the lack of concern with which the EU tackle human rights infringements within their own borders. Regardless of whether Catalonia’s claims to independence are valid under the international rule of self-determination matters little when viewed in the context of Spain’s response. Spain, and through their inaction the EU, have set a dangerous precedent in international law that allows for central governments to disregard the basic human rights of their citizens. Therefore, the international community should support the freedom of expression and assembly being exercise by the people of Catalonia and oppose any unlawful interference with these rights by the government of Spain.
Background to Catalan independence
To understand the current complex issues at play in Catalonia it is appropriate to give a brief background to the region and how nationalist feeling has developed.
Catalonia has always been a distinct region of Spain, one with its own language, in addition the region was referred to as a nation in its 2006 Constitution (which was declared unlawful by the Spanish Constitutional Court in 2010).
The region first received substantial autonomy in 1931 under the Second Spanish Republic and the region became a key stronghold for the Republic during the Civil War with Francisco Franco. By 1939 the Republic resistance had all but disappeared and the military dictatorship of Franco’s government had seized power. As punishment for their opposition during the civil war, any autonomy gained was revoked and nationalism within the region was suppressed under Franco’s leadership. This went on through almost the entirety of Franco’s reign, however, certain restrictions were eased in the 1970’s in response to international criticism of his authoritarian regime.
While there has certainly always been appetite for autonomy within Catalonia it is difficult to say there has ever been a desire to be independent. It is arguable that there are two major catalysts for independence: firstly, the aforementioned 2010 Court ruling that limited autonomy; and secondly, the global economic crash.
The second point may appear too broad to have stoked nationalist tendency within the region. However, Catalonia is the wealthiest region of Spain but continues to be hit with harsh austerity measures which led to not only an increase in popularity for separatist parties but also an increase in votes for left-wing minded parties in the recent election.
With both of these factors working in conjunction and occurring within just over a year of each other separatist tendencies came to a head in September 2012 with as many as 2 million people taking to the streets peaceably calling for independence. This has now become an annual event on Catalonia’s ‘National Day’.
After the relative success of the 2012 march, the president at the time declared that there would be a symbolic vote on independence held in 2014 to coincide with the Scottish independence vote. This vote went ahead despite defiance from central government in Madrid and the Constitutional Court. 80% of voters opted for Catalan sovereignty, however it is worth noting that turnout stood at 37%; many who disagreed with independence boycotted the vote. Almost three years later a second referendum was held with over 90% of people voting for independence with turnout standing at 43%.
During the second referendum in 2017, 14 Catalan officials were arrested and several million ballots seized. Over 900 people were injured as police attempted to stop the referendum and ensuing protests. Central government in Madrid also dissolved the Catalan parliament thus revoking many autonomous powers. The Spanish Government’s actions during this time effectively infringed the rights to expression, assembly, and self-determination.
Catalan and the right to self-determination
To understand the context of the Catalan independence debate it is essential to understand the nature of the ‘right’ to self-determination itself. Declaration on the Granting of Independence to Colonial Countries and Peoples which was adopted by the UN General Assembly in 1960 (Resolution 1514) declares that ‘all peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’ The resolution also declares that ‘the end of colonialism in all its manifestations’ is a primary goal.
Academics continue debate over the validity of Catalonia’s claim to self-determination in the aftermath of the referendum. Many academics contend that due to the fact that Catalan is not a ‘colonised’ region it does not qualify for the right to self-determination in the same way that say Western Sahara (a former Spanish colony) does. These academics also highlight that allowing Catalonia the right to choose would open the door for other regions such as Quebec in Canada and Flanders in Belgium. This would fundamentally change the territorial integrity of established states and this is a well-known limitation upon the right to self-determination according to McCorquodale (1994). While some academics, such as Ordeix and Ginesta (2014), point to the summary of the International Court of Justice regarding Kosovan independence which states that no law can prohibit a unilateral declaration of independence.
As Lanovoy highlights in ‘Self-determination in international law: a democratic phenomenon or an abuse of right?’ (2015) many within the UN feel that procedural elements such as multiparty elections and a democratic system is enough for the realisation of self-determination. Therefore, prior to the dissolution of the Catalan parliament it could have been argued that the people of Catalonia were enjoying their right to self-determination during election periods. This aligns with Franck’s (1992) contention that the right to self-determination entitles people to free, fair and open participation in the democratic process. Therefore, regardless of whether or not the Catalan people have a legitimate claim to independence they were legitimately exercising their right to self-determination by participating in the vote and thus, Spain’s reaction to that vote and the ensuing protests was an unnecessary infringement upon the human rights of the people of Catalan.
In the modern world of international law it is clear that the liberalising potential of the right to self-determination has been curtailed in favour of stabilising borders, this can be observed through case studies on regions such as the aforementioned Kosovo or Crimea.
For a greater in-depth analysis of the right to self-determination and how it is inconsistently applied and protected in international law see Professor Stephen Zunes ‘Self-determination, decolonisation and human rights with reference to the Western Sahara’ (2008).
The Dangerous Precedent set by the Spanish Government and Wider International Community
As set out above the Spanish government’s response to the referendum was a hard-line approach. It was out of proportionate and it was not necessary to meet whatever ‘threat’ they thought legitimate voters exercising their rights posed to public order. However, the response from the international community has been weak. Major institutions such as the UN and EU stressed the importance of communication between both sides and that, at least, is commendable. Yet neither criticised Spain’s hard-line response to the referendum. Current UK Foreign Secretary Boris Johnson described Spain as a close-ally and good friend and went on to commend their strength and unity despite recent events. Upon analysing the international response to Spain’s actions it is difficult to disagree with Conservative MP Peter Bone when he stated that the international community would be up in arms if this was a region of Russia and would be branding Russia as ‘anti-democratic’. He went as far to state that the response was effectively hypocritical and that the international community should shun Spain for their dictatorial behaviour.
Due to the Spanish government’s actions and the lack of oversight from the EU and the UN resulting in Spain not being held accountable for its violations of several human rights the precedent has now being set for future infringements upon the freedoms of expression, assembly and the right to self-determination. If Scotland were to hold an ‘IndyRef2’ in line with Nicola Sturgeon’s wishes could Theresa May send police to prevent voters reaching the ballot in independent strongholds such as Glasgow and Dundee? This scenario admittedly sounds extreme but when viewed in the context of the recent events in Catalonia, the precedent has, unfortunately, been set.
The EU has been consistently slow to recognise that human rights abuses take place within Europe and even more so within their own member states. This is primarily displayed by the ‘Spanish Protocol’ which excludes EU citizens from claiming asylum in other member states, given the level of protection of fundamental rights enjoyed within member states, according to the EU. Van Selm (1996) asserts that this presumption flies in the face of evidence such as the substantial number of EU citizens bringing claims to the European Court of Human Rights yearly. The EU’s lack of concern for human rights violations within its own borders is also evidenced by the fact they allowed both Romania and Bulgaria to join the Union despite a worrying human rights record.
Moving forward, the EU must become more responsive to the issues that the ‘right’ to self-determination can raise. They must also be more prepared to hold their member states to account when there has been a violation of fundamental rights. As Ordeix and Ginesta (2014) state the future of the European Union is being challenged by the claim for more sovereignty by different regions of Europe. Therefore, the EU must form a coherent and consistent approach to self-determination in order to prevent a repeat of the Catalan situation.
However, the relative silence from the UN is the most surprising and undoubtedly the most concerning aspect of the current situation ongoing in Catalonia. If the UN allows for these violations to take place and allows for such precedents to be set, then it is arguably failing at its most fundamental of principles. The UN must condemn the actions of the Spanish government and must also clearly define what the ‘right’ to self-determination means in the modern post-colonial world.
Zunes (2008) during his closing remarks in a paper focussed upon self-determination and human rights asked several pertinent questions, chief among these was ‘if the international community cannot uphold the fundamental right of self-determination, how can we successfully defend other human rights?’ And furthermore, ‘how can other provisions of human rights be protected?’ After all that the UN have achieved in over 70 years it would be a great shame for the international community if it were to collapse as The League of Nations once did, merely because it could not be firm enough with the big players in international law.