This post has been contributed by Professor Wade Mansell, Module Convenor for Public international law.
Issues of the right to self-determination in international law continue to pre-occupy contemporary issues of public international law. This is hardly surprising. One of the problems arising from decolonisation was the way in which state borders, drawn by the colonisers and not necessarily with any significant understanding of the territories they were demarking, were effectively ossified upon state independence. Unsurprisingly this has led to many ‘expressions’ of dissatisfaction at best, and revolt at worst. International law has struggled to encompass any right to secession which is (rightly) seen as an attack upon the territorial integrity of existing states. Generally, these issues have arisen (with the obvious exception of attempts at secession in Scotland, and Northern Ireland) beyond European borders, as a result of post-colonial felt injustices. (Some might argue that Quebec secessionism is also ‘European’, but I leave that aside.)
It is interesting therefore, to note that questions of secession are not necessarily to be confined to post-colonial situations, as we have seen with moves towards independence from Spain, by the territory (to use a neutral term) of Catalonia. What, however, might be the response of international law to the Catalan claim? Given that the two International Covenants (on civil and political rights, and economic, social and cultural rights) each has an identical Article 1 (1) boldly proclaiming: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development, it might have been anticipated that international law would have developed rules for resolving the competing claims of territorial integrity and self-determination. Those familiar with the International Court of Justice’s Advisory Opinion of 2010 considering the ‘Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo’ will realize how misplaced such anticipation would be. Understandably (if to the disappointment of law students!) the Court chose to give the narrowest possible answer to the question upon which it was advising, concluding ‘that no general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council’ (Para 81), and it went on to conclude (Para 84), ‘that general international law contains no applicable prohibition of declarations of independence’.
What is the significance of this for the Catalan declaration of independence? The first conclusion might be that once more we see the impossibility of isolating international law doctrine from the political realities. The obvious legal answer to Catalan’s question as to the status of its declaration of independence is (I regret to say) ‘It depends!’. What it depends upon is what will be achieved politically pursuant to the declaration, and in particular, which and how many states will recognize the newly proclaimed status of independence. In the case of Kosovo, it has now been recognized as a state by 111 of 193 UN members, 23 of 28 EU members and by 36 of 57 members of the OIC (Organisation of Islamic Cooperation). It also has membership of the World Bank and the International Monetary Fund. Nevertheless, because Russia has withheld recognition, Kosovo has not been admitted to UN membership.
The position of Kosovo may be contrasted with that of the self-proclaimed ‘Turkish Republic of Northern Cyprus’ (independence declared in 1983) which remains recognized by only one state (Turkey).
It might be expected that the recognition of Catalonia is immediately highly unlikely, at least until negotiations have taken place with the central Spanish government, notwithstanding any grievances Catalonia may be able to evidence. Many important states (China particularly, but also a number of European and African states) have a visceral fear of secessionist movements. The fact that many will consider that the Spanish Government has responded to Catalonian moves towards independence in a way calculated to fuel its development is unlikely to affect recognition.