Catalonia's independence and the principle of self determination

OPINION | CATALONIA

By Denis Birungi

The attempts by Catalonia's leaders to secede from Spain by a Unilateral Declaration of Independence (UDI) on the basis of the disputed referendum results are unsustainable in light of the long-established practice and principles that underpin the principle of self-determination.

While self-determination is an established and cherished principle of international law, its scope and application are narrowly defined. The narrow definition is important given the historical decolonisation force, as raison d'être  behind its evolution.

The inclusion of the principle in most international treaties followed the quest by the colonised to determine their destiny unhampered by their colonisers. This included independence and amalgamation if they deem fit. However, this freedom was capped by another doctrine, uti possidetis which emphasises stability of boundaries. Under this principle, former colonies are not to alter their territories and should let them as defined by the colonial masters.

It is now established by precedent that the right of peoples to self-determination is to be exercised within the framework of existing states, including their legal regimes. This is premised on the idea that there should be constraints to the exercise of the right to self-determination because of the need to prevent threats to existing territorial integrity and to maintain international stability.

A decision Supreme Court of Canada on Quebec's succession offers better insights on how Catalonia's secession attempt might end. The Canadian Supreme Court, after emphasising that secession can only happen through the existing state framework, went ahead to state that: "A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity".

The position of the Canadian Supreme court is that first separation is possible in accordance with the law of the mother state and secondly, justifiable reasons should exist before a territory can separate from an existing state. It reflects state practice on how questions of separation have been addressed and sets good practice for present and future reference.

For territories that have advanced cultural diversity or economic clout as sole grounds, their separation attempts have ended in a legal and political limbo. From Quebec, to Katanga in the DRC, to Biafra in Nigeria, attempts to secede based on these conditions have failed to materialise.  It seems reasonable that diversity of culture alone should never justify disintegration of territorial boundaries of sovereign states, as doing so would open the floodgates in multicultural/multi-ethnic states causing instability in existing sovereign states because of demands for separation.

For territories that seceded successfully in modern history, the grounds were more than cultural differences or stronger economic strength. In South Sudan for instance, besides cultural, racial and religious differences, there was prevalence of historical oppression, subjugation and exploitation of the southerners by the Arab-dominated north. In Southern Rhodesia (present day Zimbabwe), the UDI succeeded because it was a decolonisation struggle backed by strong international pressure on colonial masters to grant self-rule.

Only such justifiable reasons as historical oppression and decolonisation may earn a territory international support and subsequent recognition upon successful secession. For independent states, separation is only possible through the constitutional framework of the mother state. Usually, a mutually agreed position to hold a referendum within the applicable legal framework is reached between intending separatists and the mother state. In the event of a vote to leave, the Vienna Conventions on Succession of States govern the terms of the divorce.

This approach was followed by Sudan where the referendum for the independence of the Southern territory was successful in 2011 and the United Kingdom on the unsuccessful Scottish independence referendum. In the event of a "no" referendum result, usually the mother state grants greater autonomy to the territory or more political inclusion is pursued to minimise tensions. This was the approach reached by Canada on Quebec which is suitable and most likely for Catalonia, if both parties soften their stance and agree to an amicable settlement which should culminate into a mutually agreed upon referendum.

The writer is a lawyer and fellow at the African Policy Centre think tank