Conflicts in International Law: Self-Determination

By Dan Gillis, ’18

Self-Determination.

While there exists no inherent definition, the commonly-accepted definition is the “legal right of people to decide their own destiny in the international order.”1 A fundamental principal of international law, the concept of self-determination is featured prominently in the United Nations Charter2 and the International Covenant on Civil and Political Rights3 as a right of all persons.

A nation can exercise their right to self-determination largely through the will of the people. This can be accomplished by a government decision, parliamentary decision, or popular vote.4 It must be noted that the European Court of Justice recognized the “customary principle of self-determination” as a principle of International Law “applicable to all non-self-governing territories and to all peoples who not yet achieved independence.”5

While this concept is not entirely a new occurrence, it has been of significant importance to Catalonia, a self-governing territory of Spain. Earlier this fall, this autonomous territory located in the northeast region of Spain, declared that an “independence vote” would occur to decide the territory’s future as a part of Spain.6 This call for independence is but another in another in a long line of attempts by this territory to succeed from the Spanish government.7

However, this attempt comes in light of the economic struggles that Spain has endured in recent years, and Catalonia’s strongly held desire to operate under its own set of governing laws.8 Since the declared intent to hold a referendum, there have been legislative arguments, the Catalonian government has been overthrown, potential charges of rebellion and sedition have been contemplated by the Spanish

1 Self Determination, CORNELL WEX-LEGAL DICTIONARY, https://www.law.cornell.edu/wex/self_determination_international_law (last visited November 4, 2017). 2 U.N. Charter art. 1, § 2
3 International Covenant on Civil and Political Rights Part I, Art. 1, § 1, Dec. 19, 1966, https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf.

5 See Nicolas Levrat, The Right to National Self-Determination within the EU: A Legal Investigation, (European Consortium for Political Research) https://ecpr.eu/Filestore/PaperProposal/d0d39dde-15ad- 4462-994a-a9e4a2fa24a6.pdf.
6 See Sam Jones, Catalonia to Hold Independence Vote Despite Anger in Madrid, THE GUARDIAN (Sept. 6, 2017), https://www.theguardian.com/world/2017/sep/06/spanish-government-condemns-catalonia-over- independence-referendum.

7 Harriet Alexander & James Badcock, Why Does Catalonia Want Independence from Spain?, THE TELEGRAPH (Oct. 10, 2017), http://www.telegraph.co.uk/news/0/does-catalonia-want-independence-spain/. 8 Id.

4 See Daniel Thürer, Thomas Burri , Self-Determination, MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW [December, 2008] http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law- 9780199231690-e873.

Government, and now the Courts are involved to provide a remedy to this independence issue.9

Why is this important?

As previous mentioned above, self-determination (right to independence) is explicitly granted in International Law. Catalonia, like many autonomous territories before it, seeks to be recognized as their own country operating under their own set of laws. However, as shown with the recent “Brexit”, a hasty exit can pose issues.10 However, this author is not going to say that Catalonia leaving Spain would be internationally equivalent to the United Kingdom leaving the European Union. Although, were Catalonia to vote to successfully succeed from Spain without an established government overseeing the process [thus leaving them in legislative limbo] the situation can decline rapidly, as seen in prior instances of desired independence.11

The United States is perhaps the most prominent example of ‘self- determination’ in modern history with the 1776 Declaration of Independence from Great Britain. 12 However, the United States has also dealt with incidents of states seeking independence of their own. Notable examples include the Southern States and the Civil War, and just last year the State of Texas ultimately decided not to act on their highly publicized desire to succeed from the union.13

In contrast, Catalonia is steadfast in their desire to have their independence from the Spanish Government. Unfortunately for Spain [even as a member of the EU], they cannot rely on the EU to help resolve this matter. The EU is still dealing with the impact of the ‘Brexit’ , and has declined to insert itself into the crisis between Spain and Catalonia.14 Thus, Spanish government is left to resolve the issue directly with the citizens of Catalonia in the months to come.

9 See Sam Jones, Crisis in Catalonia-An Explainer, THE GUARDIAN (Nov. 4, 2017), https://www.theguardian.com/world/2017/nov/04/crisis-over-catalonia-an-explainer
10 Jill Rutter, How to Solve the Catalan Crisis, Using Lessons from Brexit, THE GUARDIAN (Oct. 25, 2017), https://www.theguardian.com/commentisfree/2017/oct/25/how-solve-catalan-crisis-brexit-lessons-spain- good-cop-referendum-model.

11 The Nation of Somalia, for example, gained recognized independence in the early 1960’s. However, since that time they have dealt with civil war, government instability, and terrorist groups fighting for control. However, it has only been in the past few years have they been moving towards a much more stabile form of government. See Somolia Country Profile, BBC NEWS, http://www.bbc.com/news/world- africa-14094503.

12 See Self-Determination, supra at fn. 4.
13 Amber Phillips, Texas Republicans Have Opted not to Secede from the United States after all, WASHINGTON POST (May 13, 2016) https://www.washingtonpost.com/news/the-fix/wp/2016/04/19/the- texas-secession-movement-is-getting-kind-of-serious/?utm_term=.76b905686778.

14James Badcock, et al., EU Warns More Cracks in Bloc as Spain Dissolves Catalonia’s Parliament after it Declares Independence, THE TELEGRAPH (Oct. 28, 2017), http://www.telegraph.co.uk/news/2017/10/27/spanish-government-demands-special-powers-could-remove- catalan/.

What does this mean going forward?

Catalonia, after a Court decision, will hold a public vote to determine their association with Spain. However, before independence can be achieved, they will need to elect a new government to lead them either in the direction of independence or in the alternative, an improved relationship with the Spanish government.15

While their desire to achieve their own complete autonomy is commendable and arguably it would be unjust to deny Catalonia of the right to seek independence16, it can also be said that Catalonia and Spain would be wise to use this as an opportunity to improve on their long-standing fragile relationship.17

15 See Using Lessons from Brexit, supra at fn. 10.
16 See Aidan Hehir, Self-Determination is Legal under Internation Law-it’s-Hypocritical to Argue

Otherwise for Catalonia, https://theconversation.com/self-determination-is-legal-under-international-law- its-hypocritical-to-argue-otherwise-for-catalonia-86558.

17 See Alex MacBeth, Analysis: Could Reform in Spain Solve Catalonia Crisis?, THE LOCAL (Nov 2, 2017), https://www.thelocal.es/20171102/analysis-could-reforming-spains-constitution-solve-catalonia- crisis.

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