Self-Determination: Catalan’s Right to Self-Determination

Emre HALISOGLU

ANR: 798039

SNR: 2026417

Tilburg University

L.L.M. THESIS

Supervisor:

mr.dr. Anna K. Meijknecht

December 2020

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ABSTRACT

Referendums on independence in liberal democracies are seen rare without the permission of the central government. Even international law gives the right to self-determination to ‘’all people.’’ Catalonia referendum, on 1 October 2017, is one of the referendums which aimed to solve conflicts between central authorities and the autonomous authority of Catalonia, because peripheral region Catalonia has questioned the centralized power of the state and demanded a higher level of decentralization based on their distinct history.

Whether the referendum can be applied to exercise the right to self-determination as a legal tool, and a central authority will allow exercising this right, and if it is, in what condition. These are the main focal point of this paper. And it aims to examine these questions in light of the Catalan case because the outcome of the referendum of Catalonia will be effective for prospective referendums.

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ACKNOWLEDGEMENT

I would first like to thank my supervisor, mr.dr. Anna K. Meijknecht, for her support. Secondly, I owe a debt of gratitude to my beloved wife Oya, Teo, and Asu.

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Contents ABBREVATIONS ...... v 1. INTRODUCTION ...... 1 2. THE CONCEPT OF SELF-DETERMINATION ...... 7 2.1 Historical Background ...... 8 2.2 Self-Determination in International Documents ...... 9 2.3 Legal Framework of Self-Determination ...... 12 2.3.1 The Internal and External Self-Determination ...... 13 2.3.2 Territorial Integrity ...... 14 2.3.3 People ...... 16 3. ADVISORY OPINION OF KOSOVO, QUEBEC AND SCOTLAND REFERENDUMS .. 17 3.1. The Court’s Approach to Self-Determination ...... 17 3.2. Kosovo Advisory Opinion ...... 18 4. CASE STUDIES: CATALONIA REFERENDUM IN 2017 ...... 24 4.1. Historical Background of Catalonia ...... 24 4.1.1. Legal Analysis of The Catalonian Referendum ...... 25 4.1.2. Spain Territorial Integrity ...... 30 4.2. The Right to Self-Determination of Catalans ...... 33 4.2.1. Historical Background of Catalans...... 33 4.2.2. Legal Analysis ...... 36 5. CONCLUSION ...... 40 BIBLIOGRAPHY ...... 44

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ABBREVIATIONS

CiU Convergència i Unió

EU European Union

FRD The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

ICJ The International Court of Justice

UDI

UK The United Kingdom

UN United Nations

UNGA General Assembly of the United Nations

UNSC United Nations Security Council

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1. INTRODUCTION

In the modern world, it is almost impossible to imagine an independent state that has never faced the problem of autonomist or separatist movements on its territory. Moreover, the number of countries and ethnic groups that have to fight hard against colonial powers and oppressors is quite high.1 Independence and the right of people to determine their future without the intervention of other powers have always been at the center of both transnational relationships and the international public legal system.2

Since the decolonization era, and perhaps even since World War I, the self-determination of nations has played a significant role in the international arena.3 In contemporary international law, the right to self-determination has been accepted as one of the fundamental principles arising from customary international law and has been included in several international treaties. However, it has clearly brought about many more conflicts and disagreements than effective solutions.4 Within the current international order, it must be admitted that there is very little space for a maneuver.5

The right to self-determination has been a subject of debate for over a century and a half and has been included in international treaties since the United Nations (UN) Charter. However, there is no clear framework that brings a general resolution to all possible situations of self- determination. In some cases, these examples include countries seeking to exercise their right to self-determination; in other cases, countries put pressure on the self-determination of the people or part of the population administered by the state.6

Although international law does not include the right to secede, it includes the right to self- determination.7 The difficulty lies in describing the exact meaning of the right to self-determination

1 David Gordon, Secession, State and Liberty (Transaction Publishers, New Jersey 1998) 16. 2 James Crawford, The Creation of States in International Law (Oxford University Press, Second Edition, 2006) 32–3. 3 Bridget Coggins, ‘Friends in High Places: International Politics and the Emergence of States from Secessionism’ (2011) 65 International Organization 433–67. 4 Edward McWhinney, Self-Determination of People and the Plural-ethnic States in Contemporary International Law (BRILL, 2007) 73. 5 Ibid 74. 6 Malcolm Shaw, International Law (CUP 2008), 205–7. 7 See International Covenant on Civil and Political Rights (ICCPR) (General Assembly resolution 2200A (XXI) of 16 December 1966), and International Covenant on Economic, Social and Cultural Rights (ICESCR) (General Assembly resolution 2200A (XXI) of 16 December 1966). 1 and its scope of application.8 Since the UN Charter restricts the exercise of the right to colonial situations, the right to self-determination, and whether it applies to non-colonial entities has always been a significant question.9 However, both conventions, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights(ICESCR) give all people the right to self-determination and this is the first time that this right has been included in international law.10

It seems that in secessionist struggles, one principle or the other must give way. On the one hand, the right to self-determination is a right for ‘all people’.11 On the other hand, some of the people concerned do not have a nation-state of their own, and therefore regional boundaries must be redrawn for the exercise of the right, at the cost of violating the territorial integrity of the existing state. Because if territorial integrity is a priority, the opportunity for individuals in the current state to exercise their right to self-determination will be constantly denied.12

Lea Brilmayer argues that the incompatibility between territorial integrity and arguments for self-determination is not one of the difficulties of separatist claims. Separatist claims include, above all, controversial claims regarding land and ethnicity, which is the main factor defining the people who claim land. The two conflicting principles of people and the region actually work together. Moreover, Brilmayer does not advocate leaving as a remedy for past injustices.13

Brilmayer continues to formulate the right to leave, which does not open the door to complete the chaos. Some are trying to limit the right to self-determination by claiming that it is not an appropriate right for minorities, but that the same right is suitable for nations or peoples.14 For Brilmayer, the essence of the separatist argument, the importance of self-determination, the connection between this principle and the concept of democratic self-government, and the protection of territorial boundaries lie in the moral superiority of the claim to self-determination.

8 Thomas D Grant, ‘Annexation of Crimea’ (2015) 109(1) American Journal of International Law 73. 9 Ara Papian, ‘On the Principles of Self-Determination and So-Called “Territorial Integrity” in Public International Law’ (2010) 2(8) 21st CENTURY 14. 10 Grant (n 8) 71. 11 See ICCPR and ICESCR. 12 Lea Brilmayer, ‘Secession and Self-Determination: A Territorial Interpretation’ (1991) 16 Yale J. Int'l L. 177. 13 Ibid 178. 14 Ibid 179. 2

Ethnic differences play an essential role in these arguments, as they should limit the number of groups claiming the right to secede.15

Martin Griffiths calls for greater flexibility in dealing with self-determination. He argues that a flexible and creative way of dealing with claims to self-determination would be to expand the scope of national minority rights in existing states.16 Additionally, Kirsten Porter claims that a national minority is a group that shares the same cultural characteristics, wishes to maintain their distinct identity independently of the majority group, and is not a dominant group in a state. Porter defines minority rights as the basic freedom of national minorities to protect their culture and identity. According to her, if the rights of minorities to protect their national identity are to be recognized and protected in a multinational state, they should abandon separatist goals.17 Like Griffiths, Porter believes that the flexibility of the nation-state structure must be increased to resolve any tension between the demands of national minorities and the claim of nation-state sovereignty.18

Will the internal right to self-determination become the right to secede where minorities are denied the right to active participation, as is often said?19 The strict application of majority principles leads to a situation in which minorities never have a say. Whereas for a true democracy, measures that respect the principle of self-determination must be taken and the interests of minorities must be taken into account as those of the majority. The democratic process should not degenerate into the ‘all or nothing’ mechanism, but rather the situation in which the interests of a single member of the minority should weigh the same as those of an individual belonging to the majority. 20

A referendum is one way to exercise the right to internal self-determination. Catalans are not the first minority group or sub-state to try this route. The Scottish referendum would serve as

15 Brilmayer (n 12) 179. 16 Martin Griffiths, ‘Self-Determination, International Society and World Order’ (2003) 3 Macquarie Law Journal. 17 Kirsten Porter, ‘The Realisation of National Minority Rights Theme: Self-Determination, Secession and the Creation of States’ (2003) 3 Macquarie Law Journal. 18 Ibid 51–7. 19 Robert Howse and Ruti Teitel, ‘Humanity Bounded and Unbounded: The Regulation of External Self-determination under International Law’ (2013) 13-7 New York University School of Law, Public Law & Legal Theory Research Paper Series Working Paper 54. 20 Peter Hilpold, ‘Self-Determination and Autonomy: Between Secession and Internal Self-Determination’ (2017) 24(3) International Journal on Minority and Group Right 308. 3 a useful ‘experiment’ for Catalans with similar aspirations of independence.21 The current regional government in Catalonia has issued a ‘Declaration of Sovereignty’ planning to hold a referendum on Catalonia's secession from Spain. The Catalan Government even set up a commission to express an easy transition. Likewise, Catalonia has been making efforts to explore the possibilities of membership in various international organizations.22

However, some key questions need to be addressed: who is entitled to hold a referendum? What are the mechanisms to grant it legitimacy? And, who decides on its conditions and binding nature? The papers included in this special issue seek to explore whether a referendum is an efficient instrument for the right to self-determination. In particular, it focuses upon the use of referendums as a tool to establish the strength of claims for self-determination within nations lacking a state of their own.23

The Catalan referendum is crucial for minority rights and especially for the right to self- determination. Lastly, in 2017, the local government of Catalonia held a referendum to ask local people if they wanted Catalonia to be an independent state in the form of a republic. It was a ‘yes’ and ‘no’ question referendum and the official result of the referendum showed that 92.01 percent of the local population voted ‘yes’ for Catalonia's independence.24 Thereupon, the Spanish Supreme Court did not accept the result and declared the referendum unlawful. As soon as the Spanish supreme court announced its verdict, the central Spanish government took action to prevent the demonstration organized by the Catalans for their independence.25

Catalonia’s referendum is related to the Kosovo case, which was a somewhat similar situation involving co-ethnics differences. We argue that the greatest source of instability lies not with ethnic claims or geopolitics. On the other hand, the decision of the International Court of Justice related to the Kosovo case is a milestone for the furthering self-determination actions. In addition to the ICJ decision, the approach of the Canadian supreme court is another significant

21 Luis Moreno, ‘Scotland, Catalonia, Europeanization, and the ‘‘Moreno Question’’’ (2006) 54 Scottish Affairs 11. 22 Belen Olmos Giupponi and Hannes Hofmeister, ‘The ‘‘Day After’’ the Scottish Referendum: Legal Implications for Other European Regions’ (2015) 36(3) Liverpool Law Review 32. 23 Montserrat Guibernau, ‘Introduction: A Special Section on Self-Determination and the Use of Referendums: Catalonia, Quebec, and Scotland’ (2013) 27(1) International Journal of Politics Culture and Society 2. 24 Jaume López and Marc Sanjaume-Calvet, ‘The Political Use of de facto Referendums of Independence The Case of Catalonia’ (2020) 56:4 Representation 515. 25 Montserrat Guibernau, ‘Secessionism in Catalonia: After Democracy’ (2013) 12:4, 375. 4 decision for self-determination in order to describe the ‘people’ notion. With these two court decisions and the Scottish referendum experience, we argue whether Catalans can execute their right to self-determination.

The analytical problem is that self-determination is possible under international law, and it is given to all people as a right; however, in the event of a referendum, the right to self- determination of minorities can be hindered by the central government. The powerful central government which has the authority and the law enforcement may deny the minorities’ right to self-determination. The prohibition of the right to self-determination is strongly against international documents.

Our main question is ‘To what extent can the right to self-determination be implemented for ethnic minorities in an autonomous territory, and how can it be applied to Catalans living within the territory?’ and my secondary questions are ‘Can the right to self-determination be freely exercised by referendum? and ‘How does territorial integrity contribute to the right to self- determination?’

This paper is based on background research on how the right to self-determination was exercised, whether it was observed in the past, and how it was evolved over time. The legal framework requires a brief historical review of this organization as a principle from the decolonization era. From a legal perspective (which this paper will employ), self-determination is closely related to the principle of territorial integrity and the definition of a people. I will examine how self-determination has evolved from the decolonization era and over time, including the primary sources of international law. To achieve this goal, we have thoroughly examined significant literature on self-determination and the Catalan referendum. The research methodology of this article includes an analysis of international law principles with reference to the UN Charter and other international sources. While the study also focuses on many other historical documents, the decisive documents on this subject are of legal nature. These documents include international treaties and national and international court decisions.

This issue has always been a hot topic on the international agenda, and therefore there are several documents that show and even reveal the discussions and decisions made by regional and international organizations. In the next section, after clarifying the background and legal context of the right to self-determination, and to better determine whether it provides people with enough

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‘legal ammunition’ to decide their own futures, the article analyzes the situation of Catalans as closely related cases. We evaluate the Catalonia case in light of the International Court of Justice’s (ICJ) advisory opinions and other legal documents. The views of academics who approach the problem from different angles will also be used to determine whether Catalans have the right to self-determination.

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2. THE CONCEPT OF SELF-DETERMINATION The right to self-determination of people to define their futures and their authority to declare independence themselves from a regime, federation, or state has been an important matter of polemic for many years.26 Thus, most of the global popular judicial savants have been closely investigated self-determination as a concept.27

Classical self-determination creed allows the natural form of new states preponderantly and just about solely in case of decolonization.28 Thomas D. Grant argues that if self-determination is the only way at all as a solution except the colonial region, then it might only come up as the last solution.29 On the other hand, James Crawford claims that three main discussions have been made against self-determination as principles of international law. For Crawford, the primary discussion is that the notion of self-determination involves some logical contradictions. Firstly, it is impossible to deal with something that does not already exist as if it were one. Self-determination's definition states that entities looking for self-determination are not yet internationally identified.30 Secondly, it is not possible to define with enough precision the unit to which the due of self-determination is to be imputed. As thirdly, as Verzijl notes, “national or international politics use the due of self- determination as a sport every time and due of self-determination has never been identified as a real people’s positive right of global and neutral implementation, and it never will, nor can be so identified in the future.”31 Well implementing the principle of self-determination to a wider area of territory and people is possibly true.

Daniel Thürer and Thomas Burri argue, by esteem to the concept of ‘people’ with a right to self-determination, that any statutory way to self-determination should identify the subject of the right. Answering this question is not an easy job, particularly considering the difficulties that

26 Sofia Cavandoli, ‘The Unresolved Dilemma of Self-Determination: Crimea, Donetsk and Luhansk’ (2016) 20(7) The International Journal of Human Rights 876. 27 Many authors have examined the development of self-determination. On this point, I will refer mainly to J. Crawford (2006), S. Driest (2013), D. Raic (2002), H. Hannum (2011), E. Brewer, and Buchheit. 28 Cavandoli (n 26) 878. 29 Grant (n 8) 76. 30 Crawford (n 2) 36. 31 J. H. W. Verzijl, ‘International Law in Historical Perspective’ (1970) 3 International Law 398. 7 this kind of question reasons in other areas related to whole rights, such as descriptions of the ‘minority groups’, the ‘indigenous populations’, or the ‘nations’.32

Sofia Cavandoli emphasizes ‘territorial integrity’, arguing that self-determination is a potentially radical and devastative nature talented of sabotaging the regional unity and dignity of an area. It is for this reason that international law has approximated the concept carefully and moderately, indisposed to commit itself to a special position.33

On the other hand, Lea Brilmayer says that international law does not supply a right to separation; however, separatists have trusted special explanations of international law in making their separative claims. Although separatists have disregarded the accompanying warnings that the principle does not supersede a state’s regional unity, they have focused on the UN’s clear recognition of self-determination.34 However, the self-determination discussion potentially supplies a limitless right to keep individual assent to state authority.35

Despite the continuing discussions over the describing features of the ‘self’ in the guideline of self-determination. Ewin claims that theorists of separation generally accept two things: the first is that the ‘self’ is a people, and the second is that who the people are is either self-evident or can be easily determined. For many such theorists, the main theoretical problem of separation is not to know where the right to self-determination is.36

2.1 Historical Background

Remarkably, the concept of self-determination in the range of international intercourses has been exceedingly inconsistent since the early moments the term was coined in the second part of the nineteenth century.37 It is highly symbolic that among those who most actively referred to this term in the aftermath of World War I were both Vladimir Lenin and Woodrow Wilson. In 1918, Wilson is known to have specified that “National cravings have to be respected; people may now

32 Daniel Thürer, Thomas Burri, ‘Self-Determination’ (2008) Max Planck Encyclopedia of Public International Law [MPEPIL]. 33 Cavandoli (n 26) 877. 34 Brilmayer (n 12) 180. 35 Ibid 181. 36 Robert Ewin, ‘Peoples and Political Obligation Theme: Self-Determination, Secession and the Creation of States’ (2003) 3 Macquarie Law Journal 18. 37 Grant (n 8) 78. 8 be controlled and governed only by who is chosen by their consent. ‘Self-determination’ is not only a phrase; it is an obligation principle of action.”38

The principle was got on the agenda again while the Second World War was raging. The Atlantic Charter points out this principle. And then, the UN Charter formally promoted it to the legal right position on the international level.39After the war, the reality of self-determination has played a crucial role in international fora and meetings, but it is not wrong to say that it produced more disagreement than it provided ways out.40

Within the valid international order, it is necessary to reevaluate the effectiveness of the current mechanisms for self-determination. Moreover, it is even examinable whether such mechanisms exist in the first place or not.41 Exactly, there have been multiple attempts to offer a working principle or principles that would make it possible to conclude whether the right to self- determination has been exercised in a particular case and the right to self-determination is valid or not. However, these discussions have been difficult and the results have been quite inadequate. 42

2.2 Self-Determination in International Documents

Self-determination is not a recent notion. Its roots can be traced to the decolonization period.43 Two significant developments about self-determination can be identified. The first one is continuing the legal status of the self-determination's progression, and the second one is containing crystallization and acknowledgment.44 At the same time, self-determination’s political practice has made a meaningful addition to the statutory and legal formation of this principle. Contrary to the political perspective of self-determination, the juridical aspect of it is based on laws, rights, and principles.45

38 Woodrow Wilson, ‘President Wilson's Address to Congress, Analyzing German and Austrian Peace Utterances’ (delivered to Congress in a joint session on February 11, 1918). 39 Antonio Cassese, Self-Determination of People: A Legal Reappraisal (Cambridge University Press 1999) 47–51. 40 McWhinney (n 4) 77. 41 Crawford (n 2) 383. 42 Kai Gehring and Stephan A. Schneider, ‘Regional Resources and Democratic Secessionism’ (1977) 181 Journal of Public Economics 13. 43 Gordon (n 1) 19. 44 Crawford (n 2) 385. 45 Marcelo Kohen, Secession, International Law Perspectives (Cambridge University Press, 2006) 37. 9

The UN Charter is the first international document that gives the juridical value to self- determination's principle at the international level. The self-determination's inclusion in the UN Charter serves a legal basis for evaluating and using the right to self-determination; the self- determination's inclusion in the UN Charter serves a legal basis for evaluating and using the right to self-determination; a starting point was supplied by the UN Charter for later legal documents, articles, declarations, and scholarly works about self-determination.46 However, the self- determination's right could not advance beyond a principle's status in this charter. Because the place where self-determination’s articles can be used, to whom they are dedicated, and when those articles can be implemented were not defined by the charter.

The self-determination principle is sacred in Article 1(2), which determines the rights as follows:

“The UN concentrate to improve friendly relationships within different nations and countries based on a great deal of respect for the equality rights’ principle and self- determination of people, and to take other suitable precautions to make international peace more and more strong.”

We can learn from Article 55 that “the composing of situations of stability and well-being which are requisite for peaceful and amicable relationships within nations based on esteem for the 47 principle of equal rights and self-determination of people is one of the aims of the UN.”

However, the charter does not describe self-determination's notions for people and does not classify internal and external self-determination as well.48 Antonio Cassese mentioned that “the discussion before the adoption of Article 1(2) supplies that the controversy States did not aim to add a right of separation in the precaution,” and mentioned that “Article 55 does not allow to add any reference to external self-determination, as well.”49 Moreover, the concepts of domination and

46 Cassese (n 39) 126. 47 Charter of the United Nations and the Statute of the International Court of Justice (26 June 1945) United Nation. 48 See: Charter of the United Nations, Arts 1 and 55, available at http://www.un.org/en/documents/charter/ accessed 31 April 2020; International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, http://www2.ohchr.org/english/law/index.htm accessed 31 April 2020. 49 Cassese (n 39) 154. 10 territorial unity, which can never be compromised by the rules of external self-determination were stressed in the Charter Articles 2(1) and 2(4).50

The UN Charter says that internal self-determination takes primacy and should be granted, if possible. We can say that the right to self-determination in the UN Charter is restricted in this way. We can find a similar situation in the 1966 Covenants, which mention the exclusive reference to internal self-determination as is exemplified with their focus on the people’s right to determine their political status and economic, social, and cultural situations freely.51

In 1966, the United Nations General Assembly (UNGA) accepted the ICCPR and the ICESCR, and these covenants have been confirmed by the vast majority of states.52 Both of the covenants are very significant to understand these days' significance of the right to self- determination. The covenants are very crucial because they giving the right to self-determination to ‘all people’. One can understand this issue very clearly in Common Article 1. In addition to the content, the right to self-determination's implementation style is also changed with the acceptance of the covenants. Besides, the application field of the right to self-determination changed with the adoption of the two covenants. In these covenants, the phrase ‘all people’ suggests that the principle is universally applicable. Neither covenant can implement merely to colonized people nor the other sub-categories of people; this idea is mentioned in the preliminary of the ICCPR.

In 1970, another significant international document for the right to self-determination's improvement was adopted. The Declaration on Principles of International Law regarding Friendly Relations and Co-operation among States (FRD) was designed to articulate the principles of the UN and the responsibility that was imposed on the member states by these principles.53 Besides the legitimately non-binding status of FRD, it is generally accepted as the most competent statement of the extent and meaning of fundamental principles of the international juristic order.54

50 Charter of the United Nations, 26 June 1945. 51 Cassese (n 39) 41–3, 52–3; Charter of the United Nations, Arts 1, 2, and 55; ICCPR Art 1; ICESCR Art 1. 52 In October 2012, 167 States were party to the ICCPR, while the ICESCR had 160 state parties. See the website of the United Nations High Commissioner for Human Rights, Ratifications and Reservations, updates available at http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en accessed 31 April 2020. 53 UN General Assembly Resolution 1815 (XVII) (Consideration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations), UN Doc. A/Res/1815 (XVII), 18 December 1962. 54 International Court of Justice, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America), Merits, Judgment, ICJ Reports 1986, p. 14, at paras 100–3. 11

Unlike other international documents, the FRD is interested in the right to self- determination that contains a reference to both internal and external sizes of the right. Especially, Principle V emphasizes that the right to self-determination might be applied by integration with an independent state or association.55 The external dimension of the right to self-determination is being addressed by this aspect of the FRD. Because these implementations of the right require being in review again the borders of the state where the self-determining people are living.56

Despite the major content of implementation of the external side of this right, it is not clear whether the right to self-determination is being embodied or not like written in FRD.57 It should be interpreted as either forbidding or authorizing people to decide their external political status utilizing separation. The first préparatoires that were done show that some states were not eager to Principle V; to supplying contribution to the progressive development of the right to self- determination and being applied to legitimize separation were received with anxiety by these states.58

2.3 Legal Framework of Self-Determination

It is critically significant to define the right to self-determination in order to discuss the concept efficiently. Despite its significant place in international law; unfortunately, the term has not been clearly described yet.59 This has resulted from an unfortunate outcome: some countries that pretend to act within the boundaries of international law have referred to the absolute authority of nations' right to self-determination.60 This right is accepted as a basic principle and as a criterion to which all other objections are made. Meanwhile, to manipulate it, enough space is collectively created by the existing definition, and directly opposite goals are verified by the right of nations to self-determination in many situations.61

55 Cassese (n 39) 47. 56 David Ray, ‘Statehood & the Law of Self-Determination’ (2002) 43 Kluwer Law International 289. 57 Ibid 292. 58 Helene Quane, ‘The United Nations and the Evolving Right to Self-Determination’ (1998) 47(3) International and Comparative Law Quarterly 564. 59 Kohen (n 45) 49. 60 Crawford (n 2) 455. 61 Shaw (n 6) 207. 12

2.3.1 The Internal and External Self-Determination

According to modern international laws, self-determination has been universally accepted as a principle since the adoption of the UN Charter.62 Self-determination can be implemented either internally or externally, but the right itself remains the same regardless of the mode of implementation. If self-determination is implemented internally, it is confined to political, social, and cultural life independence in terms of the framework of existing people who live within the boundaries of the state. As a consequence of internal self-determination, all people can gain ‘equal access to government,’ and this means that the internal state of self-determination is closely related to the principles of human rights and non-discrimination. There are several ways to supply internal self-determination; like designating a series of seats from a parliament for delegates of a particular society or establishing regional autonomy.63 As commonly understood, internal self-determination cannot alter the current borders of a country, and this is its main difference from external self- determination.64

As stated in the Western Sahara advisory opinion, ICJ stated that the right to self- determination should be applied freely with political, economic, and cultural progress.65 The internal self-determination's main purpose is to protect the distinct identity of a people by creating an atmosphere in which they can preserve, enhance, and advance their collective individuality without external involvement.66 Moreover, if we look at Cassese, he defines the right to self- determination as an "embodiment" of the rights contained in the ICCPR.67 The right to internal self- determination is fully defined by Cassese: “it is up to the right to internal self-determination that a person is allowed to exercise rights and freedoms like permitting the expression of the popular wills.”68

62 Vita Gudeleviciute, ‘Does the Principle of Self-determination Prevail Over the Principle of Territorial Integrity?’ (2005) 2(2) International Journal of Baltic Law 53. 63 Shaw (n5) 239. 64 Ibid 289. 65 International Court of Justice, Western Sahara, Advisory Opinion of 16 October 1975, ICJ GL no. 61, ICJ Reports 1975 12. 66 The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States (FRD), UNGA Resolution 2625, para 1. 67 Cassese (n 39) 53. 68 Ibid 56. 13

The legal principle of respect for the regional unity of available states resists external self- determination. A safeguard clause for external self-determination, requiring that cases of external self-determination demonstrate rights to racial and religious groups in the same state is offered by the FRD. The FRD aims chiefly to protect the territorial integrity of the parent state thus the exercise of the right is confined by territorial integrity to prevent separatist movements’ threatening to the sovereign state and international stability.69 This is also protected by the Helsinki Final Act: one must “refrain from any violations of the principle of territorial integrity and thus from any desired action to violate the territorial integrity, political independence, or the unity of a State.”70 The international laws only tolerate secession in situations of external self-determination when a group of people is colonized or oppressed by a country, a government, or other people.71

Our focus in this paper is internal self-determination. First of all, Article 1 of the UN Charter gives Catalonia the right to self-determination, which refers to ‘the relationship between ‘people and their state or government’, including the ‘right of people to govern, that is, to have a democratic system of government’ and ‘to choose their political status in a state, or to exercise right of meaningful political participation’.72 In the case of Catalonia, Article 2 of the Spanish Constitution takes this internal self-determination into account by guaranteeing self-government, while the Autonomy Statute of 2006 – adopted based on Article 147 of the Spanish Constitution – further, specifies the Catalan political institutions to have their fundamental rights catalog and their historical linguistic rights as a nationality within Spain.73

2.3.2 Territorial Integrity

There have been scholarly efforts to address the technical details about exercising the right to self-determination. However, there are at least two issues of significance that are found at the center of the self-determination field.74 First, the concept of territoriality is still the subject of

69 Hurst Hannum, ‘Rethinking of Self-Determination’ (2011) 34(1) Virginia Journal of International Law 16. 70 See Helsinki Final Act, 1 Agustos 1975. 71 Conference on Security and Cooperation in Europe: Final Act of Helsinki, 1 August 1975, 4. https://www.osce.org/helsinki-final-act?download=true access 5 May 2020; Hannum (n 69) 16. 72 Patrick Thornberry, ‘The Democratic or Internal Aspect of Self-Determination with Some Remarks on Federalism’ (1993) Christian Tomuschat (ed), Modern Law of Self-Determination 101. 73 Paul Gragl, ‘Self-Determination and Secession in the Case of Catalonia – The Interaction of Theory and Practice’ (1993) Christian Tomuschat (ed), Modern Law of Self-Determination 206. 74 Aleksandar Pavkovic and Peter Radan, ‘In Pursuit of Sovereignty and Self-Determination People, States and Secession in International Order’ (2003) 3 Macquarie Law Journal 7. 14 discussion within international law. Second, the definition of ‘people’ (that have the right to determine their future) requires significant clarification since it is quite imprecise.11 Besides, it is almost impossible to avoid questions while speaking about the right to self-determination, and the most controversial issue is concentrating on conditions under which it may or should become possible to exercise it. It would be extremely difficult to establish lasting stability in any area on earth without addressing these issues.75

We should evaluate self-determination and territorial integrity together. On the one hand, self-determination is mainly connected with the right of people to determine their political rights.76 On the other hand, one of the main principles of international law is territorial integrity. Territorial integrity's basic definition is that it protects states’ territories from outside aggression. It may be thought of as a limit for self-determination.77

Territorial integrity is widely elaborated in the FRD, and breaches of territorial integrity are described as attempts to disrupt national unity.78 According to the FRD, the ‘guarantee against the dismemberment of one territory’ is territorial integrity.12 When we look at international law, it is also clearly stated that self-determination is described as an illegal act if it breaches territorial integrity. So, according to Cassese, as long as states stick to the FRD principles, they can exercise self-determination.79

In a sovereign state, if the government is representative of the whole population, it provides equal access to the political decision-making process, it does not block any groups to access any political institutions and government, especially to groups on the ground of race, belief, and color.80 Then it can be said that the government respects the principle of self-determination. As a result, if the government of a sovereign state denies access to such rights, groups are entitled to claim the right to self-determination at that time.81

75 Shaw (n 6) 209. 76 David Raic, ‘Statehood & the Law of Self-Determination’ (2002) 43 Kluwer Law International 289. 77 E. Gzoyan and Lilit Banduryan, ‘Territorial Integrity and Self-Determination: Contradiction or Equality’ (2011) 2(10) 21st Century 97. 78 Quane, (n 58) 564. 79 Cassese (n 39) 62. 80 McWhinney (n 4) 79. 81 Ibid 81. 15

2.3.3 People

Both covenants have discussed the subject of self-determination concerning ‘all people.’82 With the basic approach, if a group wants to be entitled to exercise their collective right to self- determination, they must be qualified as ‘a group of people’. This topic has been debated by many scholars and diverse examinations of the issue have been provided by them. The distinction between the rights of people and those of minorities is reflected even in various international documents. The debates are based on whether “minority groups” are included in the definition of people or not. Cassese claims that minority groups can only be entitled to internal self- determination and they cannot be assessed as ‘all people’ to exercise external self-determination. Cassese’s conclusion is based on UN practice and the claim that the notion of ‘people’ does not include ethnic, cultural, or linguistic minorities of one state. On the other hand, the FRD makes a connection between external self-determination and internal self-determination in such exceptional circumstances.83 Thereby, the subject of self-determination can be extended to ‘people’, which not only define the whole population but also sub-groups and minorities.

The definition of a ‘people’ has aspects in common with that of a ‘minority’.84 Despite the similarities between the nature of people and minority groups, and the common approach of the UN Charter and the International Convention about people, it can be concluded that the definition of a ‘minority’ consists of, at least, the following elements: (1) an objective element, i.e., the minority must distinguish itself from the rest of the population by possessing a distinct ethnic, religious, or linguistic attribution; (2) a subjective element, which means that the minority must have the will to protect its distinct identity, and (3) the minority must make up less than fifty percent of the host state’s total population. 85

82 See International Covenant on Civil and Political Rights (ICCPR) (General Assembly resolution 2200A (XXI) of 16 December 1966), and International Covenant on Economic, Social and Cultural Rights (ICESCR) (General Assembly resolution 2200A (XXI) of 16 December 1966). 83 Cassese (n 39) 66-7. 84 Raic, (n 76) 288. 85 Simone F. van den Driest, Remedial Secession: A Right to External Self-Determination As a Remedy to Serious Injustices? (Cambridge: Intersentia 2013) 115. 16

3. ADVISORY OPINION OF KOSOVO, QUEBEC AND SCOTLAND REFERENDUMS

3.1. The Court’s Approach to Self-Determination

The ICJ has interpreted many cases related to self-determination for years. According to these interpretations, the ICJ has observed that the concepts of equality and freedom “will inspire people's visions and behaviors the world over until the goal of self-determination and independence is reached.”86 Self-determination is still on the ICJ’s agenda, and the court has handled the right to self-determination because of its contentious nature. Various perspectives reflected in the court’s advisory opinions have changed over the years.87

Since the twentieth century, the court assessed the right to self-determination in terms of the context of decolonization.88 The ICJ's advisory opinion related to the Western Sahara case is an example of a case about the decolonization framework. The case also confirms that ‘the principle of self-determination is valid’ in the context of international law one more time.89 Moreover, one of the advantages of the advisory opinion is strengthening the principle of self-determination of people, which supported the decolonization process.90

Many advisory opinions of ICJ have been triggered by concrete disagreements.91 Many of the concrete disagreements were due to constitutional disagreements within the UN system or were due to disagreements involving international organizations that could not have been side to a contentious case.92 One of the most significant examples of concrete disputes is the Kosovo Advisory Opinion. According to international law, disputes between a state and another presence over an abstract legal question are concrete legal disputes.93

86 International Court of Justice, Reports, (1966), Vol. IV, p. 465. 87 Gentian Zyberi, ‘Self-Determination Through The Lens Of The International Court Of Justice’ (2009) 56 International Law Review 430. 88 Catriona Drew, ‘The Meaning of Self-Determination: The Stealing of the Sahara Redux?’ (2007) 23 Arts and Leite 87. 89 International Court of Justice, Reports (1975) 12, 31–3. 90 Clemens Feinäugle, ‘Western Sahara’ (2007) MPEPIL, para 15. 91 Christian Dominicé, Request of Advisory Opinions in Contentious Cases? (L Boisson de Chazournes ed, Transnational Publication 2002) 91–3. 92 Dominicé (n 91) 98. 93 Hugh Thirlway, ‘Advisory Opinion’ (2006) MPEPIL Online Edn., para 44. 17

The ICJ explains one of the old sayings of international law treaties with advisory opinions: “Secession is not a matter of law. It is a matter of fact”.94 This statement's main theme is the recognition that secession attempts are primarily political processes' matter in society, but are not international relations' matter automatically.95 We can clearly say that determining specific criteria that are generally applicable for self-determination by secession is not the court's job.96 At first, it appears that the court encourages secession, it does not do that. The conclusion reached by the court stems from the fact that international law does not contain any separation decision.97 On the other hand, the principle of self-determination is accepted by the court as one of the main principles of modern international law and as if it is an erga omnes law.98

3.2. Kosovo Advisory Opinion

Kosovo gained independence from Serbia in 2008. Serbian officials presented Kosovo's actions to the Security Council and they were declared an illegal act by the UN Secretary-General.99 Kosovo's independence was not a sudden move, but rather a long controversial self-determination process.100 The UN General Assembly took into account all the consequences of Kosovo's unilateral declaration of independence, whether it was recognized by other states and its opposition to this recognition, and on 8 October 2008 requested a recommendation from the ICJ on the independence of Kosovo, regardless of its compliance with international law.101

Kosovo was one of the first cases in the recent past where various states encouraged the separation of a region.102 Therefore, the court's advisory opinion on Kosovo's independence is of great value to the concept of self-determination. The ICJ has determined that the independence

94 Zyberi (n 86) 435. 95 Stefan Oeter, ‘The Kosovo Case: An Unfortunate Precedent’ (2015) ZAORV 75, 56. 96 Zyberi (n 86) 449. 97 Hermann-Josef Blanke and Yasser Abdelrehim, ‘Catalonia and the Right to Self-Determination from the Perspective of International Law [2015] BRILL NV 533–4. 98 International Court of Justice, East Timor (Portugal v. Australia), the judgment of 30 June 1995 https://www.icj- cij.org/en/case/84, about International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), the advisory opinion of 21 June 1971, paras. 31-2. 99 Drew (n 87) 93. 100 Robert Muharremi, ‘A Note on the ICJ Advisory Opinion on Kosovo’ (2010) CUP Vol 11 Issue 7–8, 867. 101 As of 2012, Kosovo had been recognized as independent by 98 countries, including the United States and the majority of the member states of the European Union. Its claim to statehood, however, is still not accepted by a majority of the members of the United Nations, including China, Russia, India, and Brazil (BRIC). Kosovo’s independent statehood, thus, remains contested in the international system. 102 Daniel Thürer and Thomas Burri, ‘Secession,’ (2009) MPEPIL Online Edn. 12. 18 declared by Kosovo on 17 February 2008 is not contrary to the rules of international law, including general international law, United Nations Security Council resolution 1244 (1999), and Constitutional Framework for Provisional Self-Government in Kosovo.103

The lawsuit of Kosovo decided the ICJ in 2010. The court ruled that international law did not contain a prohibition on the declaration of independence on July 22.104 The court argued that although there was nothing illegal in declaring the region's independence, recognition of the region was still an open political issue.105 The court also found some issues regarding the legality of the process of declaring independence in the Kosovo case, but these were mostly ignored. However, the debate around Kosovo was not an argument about people's right to self-determination. Instead, it was an argument about the legality of declaring independence through a state's institutions.106

Another important consequence of Kosovo's declaration of independence and its subsequent partial recognition is the inability of the international community to deal effectively with the Kosovo crisis, in the form of the organized UN.107 For international self-determination management, conflicts have developed over the continued concern of hosting minority communities as ‘traditional’ mechanisms of conflict resolution such as regional self-government, power-sharing, and minority rights.108 The ICJ decided that the right to the territorial integrity of the state does not apply to the groups within itself and that whether these groups have the right to self-determination is beyond the issue when it comes to the legality of their actions; first of all, such groups did not have an obligation to respect this determined territorial integrity.109

There is no standard and common way of behavior in the Kosovo case. This situation has also prevented the formation of a traditional norm that is determined by international law and supports the right to leave in case of certain situations that give rise to the right to leave. 110 Opinio Juris was also insufficient. Because not all states believed that such a right should be recognized.111

103 Kosovo Case (Advisory Opinion) ICJ Reports 2010 para. 141. 104 Heiko Krueger, ‘Was Kosovo's split-off Legitimate? Background, Meaning and Implications of the ICJ's Advisory Opinion’ (2010) 4(3) CRIA 293–96. 105 Ibid 293–96. 106 Stefan Wolff and Annemarie Peen Rodt, ‘Self-Determination After Kosovo’ (2013) 65(5) Europe-Asia Studies 804. 107 Ibid 815. 108 Ibid 815. 109 Ibid 816. 110 Krueger (n 103) 300. 111 Ibid 294. 19

The countries most affected, potentially or actually, by internal separatist movements, were those that opposed the political recognition of Kosovo; however, even a moderate policy would have created a meaningful and new international norm in this regard. 112 Moreover, even if a new norm emerged at that time, there would be a lot of opposition states that would reject it, and they would seek exemption from this new rule. Many well-known states did not even support the creation of this traditional norm, and they treated Kosovo as a unique case, not a precedent. Therefore, when we evaluate the independence of Kosovo in terms of international law, it makes no sense. Because in this case where all international societies have very different opinions, no action has taken place that would create a new traditional norm.113

In sum, although the Kosovo Advisory Opinion does not say anything openly about the right to leave, it certainly contributed to the acquiescence of the international community to the developments in the specific case of Kosovo.114 In this context, it cannot be excluded that it sets a precedent for other cases.

3.3. Quebec

Quebec held referendums in 1980 and 1995 and sought to find solutions to sovereign union and partenaryat agreements with the rest of Canada through these referendums.115 Whether there was anything about sovereignty among Quebec elections was questioned: ‘Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed in 1995?’116

A referendum on self-determination may be held, but they do not have any official site. The referendums on self-determination do not go beyond a recommendation as expected and do not contribute much to independence.117 In the Quebec case, the Canadian Supreme Court set the

112 Wolff and Rodt (n 105) 811. 113 Heiko Krueger, ‘Implications of Kosovo, Abkhazia and South Ossetia for International Law’ (2009) 3(2) Caucasian Review of International Affairs 134–35. 114 Ralph Wilde, ‘Self-Determination, Secession, and Dispute Settlement after the Kosovo Advisory Opinion’ (2011) 24 LJIL 149, 153. 115 Lopez and Calvet (n 24) 512. 116 Daniel Turp and Anthony Beasuséjour, Self-Determination, Autonomy, Independence, and the case of Québec (Peter Hilpold ed. Autonomy and Self-Determination, Edward Elgar Publishing 2018) 319. 117 Roya M. Hanna, ‘Right to Self-Determination in the Re Secession of Québec’ (1999) 23(1) Md. J. Int'l L., 225. 20 negotiating rules for the parties concerned after a referendum held that some of the population living in a federation were unhappy with their constitutional status.118

After that, the federal government asked the court for a recommendation on Quebec's right to self-determination. Québec's Reference Split in 1998 became a view that is a milestone in Canadian and international law. 119 Clarified the interaction between internal and external self- determination. Although the existence of the unilateral right of secession for autonomy was not explicitly denied by international law, the court rejected such a right as it would harm the territorial integrity of the states, which are the cornerstones of international law. 120 Furthermore, another reason for refusing this request is that the court thinks that granting the right to unilaterally secede for autonomy would materially weaken the right to self-determination.121

Judging by the decision of the supreme court, the right to external self-determination, as opposed to the right to internal self-determination, is vested in people who are colonized or under foreign occupation. However, neither of these situations is valid for Québec.122 The court also announced the third situation, which, according to some, could lead to the right to secede. The right to self-determination can be given to peoples frustrated by the denial of meaningful access to government to pursue their political, economic, social, and cultural development. 123 Although the court did not want to decide whether this latter situation would give people the right to external self-determination, it nevertheless made the decision that would allow Québec to fully exercise its right to self-determination within the borders of Canada. However, the current legal and political framework and, accordingly, international law rules do not allow any actions to justify unilateral separation. 124

3.4. Scotland

In some places governed by the sub-state government, some organizational entities may take various initiatives to organize a referendum on self-determination, as they have taken a

118 Hanna (n 116) 227. 119 Québec Secession Reference (1998) 2 SCR 217. 120 Ibid 112. 121 Ibid 119. 122 Ibid 131. 123 ibid 138. 124 Turp and Beauséjour (n 115) 329. 21 political duty to promote the political rights of the population they address.125 However, confusion is caused by, for example, the fact that a community organized as an autonomous sub-state is not content with this but makes a one-sided decision with a desire for independence. Instead, in international law (like people's right to self-determination in a colony) or national law (in the constitution of the state or somehow included in an agreement), there should supply an orderly ground for such a political act and there should be grounds to break the political ties gradually with the state from which they left.126 In such cases, the new political authority adopts its first constitution for a new independent state,127 often holding a referendum, and exercises its founding powers (pouvoir constituent).128

In line with these current debates, Michael Keating sought to develop his understanding of self-determination, both to obtain the right to secede and to have the chance to negotiate a minority nation's position in the state and international platforms. Because he believed that this could be more useful.129 This is also in line with the principle of treating these issues as the affair of democracy, not nationality or ethnicity problems.130 Keating states that the main issues against the right to autonomy as a right such as the right to self-determination require negotiation and maturity between the parties involved. But he rightly thinks that there is a lot of negotiation between the new and remaining states to achieve independence.131 This situation has come to light very clearly in the Scottish issue. Scotland needed to vote to separate itself from the rest of the UK and become independent, and then a complex negotiation process awaited Scotland.132

The eagerness to leave Great Britain and gain independence was never abandoned by the Scots. Before signing the Edinburgh Agreement on 15 October 2012, the UK and Scottish Governments did a lot of meetings to negotiate conditions.25 Both governments announced that they would “work together to hold a referendum to decide on Scottish independence, and this referendum: (1) must be based on a clear legal basis; (2) must be adopted as law by the Scottish

125 Hanna (n 116) 107. 126 See Lighthouses in Crete and Samos (France v Greece) [1937] PCIJ Rep. (ser. A/B) No. 62. 127 Hanna (n 116) 108. 128 David Cameron, Nationalism, Self-Determination and the Québec Question (Macmillan 1974) 64. 129 Ibid 71. 130 Michael Keating, ‘Rethinking sovereignty: Independence-lite, devolution-max, and national accommodation’ (2012) REAF, 16. 131 Ibid 18. 132 Tom Mullen and Stephen Tierney, ‘Scotland’s Constitutional Future: The Legal Issues’ (2012) SSRN, 17. 22

Parliament; (3) be administered in a manner that does not undermine the confidence of parliaments, governments, and the public; and (4) express the views of people living in Scotland fairly and firmly, and thus a result that earns the respect of all walks of life.133 In this way, as stated in the treaty, the order would definitely pass the Scottish Parliament law for this referendum, and this law would be passed unanimously and closed to legal objections.134

The Edinburgh Agreement was a victory for both governments. Correspondingly, one of the most important things is that the UK government agrees to hold a referendum for the people of Scotland to decide whether they want independence and paves the way for work towards it.135 In other words, the UK decided to support the referendum, not prevent it. This event is both valuable, positive, and noteworthy when examining the responses of the Spanish Government to the similar requests and initiatives of the Catalans.136 Hence, the agreement was appreciated by all walks of life as an example of dialogue and reconciliation and has been considered one of the most important and historical events in Scotland's history since the Union of Scotland and England in 1707.137 As a result of all these good events, this referendum was held on 18 September 2014, and it became a significant milestone in the history of these two countries.138

133 Aileen McHarg, ‘The legal effects of the Edinburgh Agreement—again’ (2012) Scottish Constitutional Futures Forum Blog http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleVie w/articleId/468/Aileen-McHarg-The-Legal-Effects-of-the-EdinburghAgreement–Again.aspx accessed 1 September 2020. 134 Elisenda Casanas Adam, ‘Self-determination and the Use of Referendums: the Case of Scotland’ (2014) 27 Int J Polit Cult Soc 55. 135 Ibid 59. 136 Elisenda Casanas Adam (2013), ‘Another independence referendum in 2014? Recent developments in Catalonia’ (2013) Scottish Constitutional Futures Forum Blog http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleVie w/articleId/1031/Elisenda-CasenasAdams-Another-Independence-Referendum-in-2014-Recent-Developments-in- Catalonia.aspx accessed 12 September 2020. 137 Tom Devine, ‘Today is the most important date since 1707 Act of Union’ (2012) The Scotsman http://www.scotsman.com/news/tom-devine-today-is-the-most-important-date-since-1707-act-of-union-1- 2576105 accessed 13 September 2020 138 Daniel Béland and André Lecours, Nationalism and Social Policy: The Politics of Territorial Solidarity (OUP 2008) 128. 23

4. CASE STUDIES: CATALONIA REFERENDUM IN 2017 It is a very positive method for groups striving for their independence to strengthen their legitimacy against the territorial integrity of the states by using the popular vote, which is a peaceful method, instead of using weapons and causing deaths and anarchy.139 Nowadays, a referendum has been a peaceful method frequently used by sub-states to make decisions. The referendum is widely used in states and federations for the good use of the constitution and legislatures and the changes that need to be made in them.140 The referendum is a less used method of involving society in autonomous places than in normal states.141 Based on the law, a state or a group has the right to hold referendums from time to time for their self-determination. The UK made various jurisprudence in the law concerning Scotland and Canada in the Quebec case, with a decision that even exceeded its own constitution. And with these case laws, enabled the holding of independence referendums in these two regions.142

4.1. Historical Background of Catalonia In the early years of the twentieth century, people living in Catalonia were given little say or chance for what they had longed for.143 In 1931, the Spanish parliament allowed the people to establish their autonomy within the Spanish State ‘outside the cities with a common history, culture and economy,’ but this event was only small hope for the peoples.144 After Franco abolished this charter in 1938, Spain increasingly took on an authoritarian and centralist structure. As a result of these reactions, a new Constitution was prepared and entered into force in Spain in 1978.145

This constitution tried to ensure the territorial integrity of the state by ensuring cultural and political reconciliation of the nations and regions in Spain. 146 The Spanish state sought to keep the Spanish nation away from cultural and political separatist movements, to maintain legitimate state

139 Nicholas Sambanis, Micha Germann, and Andreas Schädel, ‘SDM: A New Data Set on Self-determination Movements with an Application to the Reputational Theory of Conflict’ (2018) Sage 62 (3), 665. 140 This is the case, for instance, in the cantons of Switzerland, the Länder in Germany and the states in the US federation. 141 Markku Suksi, ‘Bringing in the People: A Comparison of Constitutional Forms and Practices of the Referendum’ (1993) Martinus Nijhoff Publishers 381. 142 Sambanis, Germann and Schädel (n138) 669. 143 Ibid 670. 144 Hurst Hannum, ‘Rethinking Self-Determination’ (1993) 34 Va. J. Int'l L, 264. 145 Christopher J. Borgen, ‘From Kosovo to Catalonia: Separatism and Integration in Europe’ (2010) Goettingen Journal of International Law, 2(3),1018. 146 Ibid 1011. 24 authority over all peoples and avoid having to reduce their relations with citizens to a simple concept of citizenship, and tried to offer the people a homogeneous lifestyle.147

On the other hand, nationalist autonomists dominated Catalan politics until the early 2010s. When the dates showed 10 July 2010, the Spanish Constitutional Court took a new decision to protect Spain’s territorial integrity.148 A new declaration was adopted by The Catalan Parliament in 2013 but after published two months later it was declared against the constitution by the Spanish authorities.149 The Council made several proposals to the Spanish authorities to perpetuate a referendum for secession; if this request is rejected, Catalonia should exercise its right to consult the public. In case the Spanish government does not accept this election, a unilateral declaration of independence must be made.150

These events ensured that the issue of independence was at the center of Catalan politics as opposed to the past.151 The referendum has become a consultation that has lost its legal significance as the Spanish central government has declared the Catalans' referendum for independence in 2014 illegal.152 On 6 September 2017, the Catalan Parliament announced a referendum on self- determination and invited the public to vote. Madrid administration declared this referendum illegal and a crime against the Spanish State. So they wanted to seize documents with police raids and arrest senior officials in his organization.153

4.1.1. Legal Analysis of The Catalonian Referendum Empirically, it is very difficult to come across independence referendums in countries governed by liberal democracy. 154 Only a few have remained since the fall of the Berlin Wall, including in continental lands such as Quebec, Montenegro, and Scotland. The people there are run by the colonial governments, and referendums are held more often here to get rid of colonial rule.155

147 Guibernau, (n 25) 376. 148 André Lecours and Jean-Francois Dupré, ‘The emergence and transformation of self-determination claims in Hong Kong and Catalonia: A historical institutionalist perspective’ (2018) 20(1), 14. 149 Guibernau (n 25) 382. 150 Lecours and Dupré (n 147) 18. 151 André Lecours, ‘Nationalism and The Strength of Secessionism in Western Europe: Static and Dynamic Autonomy’ (2020) SAGE, 6. 152 Ibid 9. 153 Montserrat Guibernau, Francois Rocher and Elisenda Casanas Adam, ‘Introduction: A Special Section on Self- Determination and the Use of Referendums: Catalonia, Quebec and Scotland’ (2014) Int J Polit Cult Soc 27(1), 2. 154 Ilker Gökhan Şen, ‘Sovereignty Referendums in International and Constitutional Law’ (2015) London: Springer. 155 Lopez and Calvet (n 24) 513. 25

The Catalan referendum presents both important differences and similarities with the unilateral independence referendums previously held. Such organizations do not have a clear legal framework.156 However, this direct democracy mechanism is used by all involved in the regional crisis for different purposes at different institutional and legal levels; election obsession can be used when political problems arise or as a peaceful mechanism to address sovereignty issues, as a way to strengthen the legitimacy of unilateral demands for independence, to legitimize a de facto status quo, or as the sum of all these goals.157 Besides, the 1 October referendum reinforces the rationality thesis developed. This thesis avoids describing the actors' level of rationality and the difficulties in holding independence referendums as international chaos.158 However, a sub-state organized as an autonomous body wants to be independent rather than chaotic. And wants to make a unilateral decision for this to happen. Rather, there should be a legal justification for such actions, such as public international law or national law.159 If this happens, it uses the founding forces in adopting its first constitution as a new political formation and a new independent state; this usually happens through a referendum.160

Separation issues are not always articulated, but more politically motivated conflict processes such as Scotland in the UK and Quebec in Canada can also occur. Although the transfer of legislative powers to Scotland was new, political formations grew towards a more nationalist government, with the political environment in Scotland achieving independence.161 To find a solution, the UK government took a council decision and temporarily transferred legislative powers to the Scottish parliament. Although the transfer of legislative powers to Scotland was new, political formations grew towards a more nationalist government, with the political environment in Scotland achieving independence.162 However, only 44.7 percent of voters approved the idea of independence. This result means that Scotland will continue to be part of the UK, but its legislative

156 David Marti and Daniel Cetra, ‘The 2015 Catalan election: a de facto referendum on independence?’ (2016) Regional & Federal Studies 26:1, 111. 157 Lecours (n 150) 11. 158 Lopez and Calvet (n 24) 515. 159 See Lighthouses in Crete and Samos (France v Greece) [1937] PCIJ Rep. (ser. A/B) No. 62 (October 8), 36–8. 160 Markku Suksi, The referendum as an instrument for decision-making in autonomy-related situations (Peter Hilpold ed. Autonomy and Self-Determination, Edward Elgar Publishing 2018) 111. 161 Suksi (n 140) 384. 162 Chris Himsworth and Christine O’Neill, Scotland’s constitution: law and practice (Edinburgh: Bloomsbury Professional 2009) 64. 26 powers have been increased by the Scotland Act.163 Even if the result of the independence referendum turns out to be yes, it is likely that independence will not occur immediately, but only after long negotiations between the two governments.164

Canada's becoming a federation pushed Quebec's sub-provincial organization to separate by declaring national sovereignty as in the past.165 In the referendum in 1995, separation supporters lost their referendum vote by a weak margin to 50.58 percent. The handling of the matter by the Canadian Supreme Court was more important to Canada.166 Although they wanted to keep control of the issue in this way, this incident was not enough to achieve independence. This interpretation is an extremely restrictive one on self-determination. According to this interpretation of the low probability of holding a referendum for self-determination, it is very difficult for politicians to agree among themselves.167 However, since that day, the constitutional doctrine has eliminated this possibility. According to this restrictive constitutional doctrine, even the Spanish government will not have the power to hold a referendum as a constitutional right whenever it wants to make a change in the constitution or laws.168 After the 2008 ruling on the Basque case, the Constitutional Court stated that it is not possible to hold a unilateral referendum according to the current constitution.169 In this resolution, he referred to the referendum not as a right, but as a ‘legitimate political demand’ for people to be governed under the law. Since it was impossible to speak of ‘the right to decide’ without constitutional reform, the court argued that certain preparations might be appropriate.170 Successes in this regard would not have been too reasonable but it is not specified which actions brought these successes. Also, according to the court's decision dated 31/2015, the referendum cannot be seen as a preparatory stage of constitutional reform.171 Some jurists with different views defending different principles and ideas have criticized this doctrine highly. These

163 See Miller v Secretary of State for Exiting the European Union et al., Judgment of 24 January 2017. 164 Alan Boyle and James Crawford, ‘Opinion: Referendum on the independence of Scotland—international law aspects’ (2013) Annex A, in HM Government. Scotland analysis: Devolution and the implications of Scottish independence, 83-5. 165 Hanna (n 116) 110. 166 Gerald L. Gall, ‘Québec Referendum’ (2013) https://www.thecanadianencyclopedia.ca/en/article/quebec- referendum-1995 accessed 11 October 2020. 167 Cameron (n 127) 67. 168 Hanna (n 116) 111. 169 STC 42/2014 resolution, 25 March 2014 170 Marti and Cetra, (n 155) 109. 171 Josep Maria Castellà, Constitution and referendum on secession in Catalonia (A. LópezBasaguren & L. E. San Epifanio Ed. Claims for secession and federalism: A comparative study with a special focus on Spain, London: Springer 2018) 413. 27 criticisms apply to everything from statewide referendums to an informal referendum that is the first step towards making constitutional amendments. 172 Besides, some lawyers have proposed to include a separation clause in the constitution.173

On the other hand, discussions on whether to hold a referendum for a new constitution should be based on the content of the referendum, and all parties should make their decision after reviewing its content.174 First of all, we can say that; the questions in the Catalan referendum were not about political possibilities or alternatives other than independence. Catalans have not added any other scenario to their political strategy since the 2015 elections, in line with their separatist views.175 Besides, both the Catalan parliament and the government had previously proposed to hold a referendum within the framework of their independence efforts. Second, contrary to public discourse, there was little permission for strategically negotiating federative constitutional amendments when independently forming the Spanish parliament.176 Finally, since the constitutional court has issued a ban on such initiatives, it is well understood by all public officials in Catalonia how much the cost of attempting to hold a referendum would be. Despite this, some say that the bargaining of such a referendum should be done under Spain's regional model.177

After the referendum, a decision signed by most members of the Catalan parliament was made by them on 27 October 2018, and independence was declared with this symbolic decision.178 However, the Catalan authorities were unable to take any action, neither with the security forces nor with the voluntary help of the people, to maintain control of the Catalan region. After the vote held by the Catalan authorities, no official action was taken regarding independence.179 For all these reasons, the Catalan Government's decision to hold a unilateral referendum in 2017, its reasons and consequences are constantly being debated. Although this referendum is intended to be made unilaterally as a way to legitimize independence, there have always been different

172 Francesc de Carreras, ‘Consultar no es decidir’, La Vanguardia, (2013) (https://www.lavanguardia.com/opinion/articulos/20130918/54385698277/consultar-no-es-decidir.html accessed 9 November 2020. 173 Lopez and Calvet (n 24) 512. 174 Marti and Cetra (n 155) 110. 175 Ivan Serrano, ‘The evolution of the political discourse in Catalonia 2003-2014: From Self-government to Self- determination’ (2014) Open University of Catalonia, 9. 176 Lopez and Calvet (n 24) 515. 177 Josep Costa, ‘Does Catalonia have the right of self-determination?’ (2017) Diplocat, 4. 178 Guibernau, Rocher and Adam (n 152) 17. 179 Guibernau (n 25) 377. 28 evaluations of it.180 Thus, in recent years, the Catalan authorities have used different political discourses like ‘negative treatment of Catalan demands for cultural and political recognition, violation of self-government regulations, negative effects of the central state's refusal to accept the Catalan as a nation, or a referendum on the status of Catalonia, etc.’181 These elements are closely related to three main sets of arguments broadly explained by political theory while focusing on the justifications of the desire to leave. Plebiscitarian or democratic theories relate to the right to freedom of political association; descriptive or national theory, on the other hand, argues that certain groups and especially nations have a right to secession; and accordingly, unilateral separation can occur in a corrective and fairway only depending on certain conditions and this is the last resort.182 Although wide-ranging criticisms are occasionally directed at these criteria, nationalist movements present their demands for self-management as a combination of these criteria183.

In recent years, although many minority groups have placed their culture and identity at the center of their understanding of nationalism, Catalans are putting democracy and remedial arguments at the center of their demands for self-determination. This discourse contains many differences it. Looking at the sociological characteristics of Catalonia, this discourse sets the stage for the maximization of social support rather than ethnic or cultural lines.184 Although pressure from the international community paved the way for the establishment of newly independent states in some regions, the European Commission has consistently viewed Catalonia's desire to secede as an ‘internal problem’ of Spain.185 This means that the current political struggle has not yet gained an international dimension. However, to help the new regional government, the justification of Catalonia's desire for independence has begun to be explained to the whole world by social organizations. Moreover, before the government established a Foreign Affairs Office for this job.186

180 Montserrat Guibernau, Francoism, Transition and Democracy (London: Routledge 2004) 121. 181 Marti and Cetra (n 155) 108. 182 Allen Buchanan, ‘Self-Determination and the Right to Secede’ (1991) JSTOR 45 (2), 352. 183 Ibid 355. 184 Serrano (n 174) 4. 185 Marti and Cetra (n 155) 113. 186 Enric Ordeix and Xavier Ginesta, ‘Political Engagement Principles as the Basis for New Regional Self-determination Processes in Europe: The Case of Catalonia’ (2013) SAGE 58(7), 932. 29

4.1.2. Spain Territorial Integrity In contemporary international law, this principle is regarded as the cornerstone of the so- called state organization and many legal principles. The principle of sovereignty protects the territorial integrity of the states against all kinds of dangers and protects the internal judicial authorities against any interference, and the principle of sovereignty also prevents someone from creating a threat by relying on the political and legal power in his hands.187 At the same time, the principle of sovereignty and self-determination are intertwined, preventing any contradiction between them. If a sovereign State is established and a constitution is adopted, this is the most important indication of a people exercising their right to self-determination.188

The current States exercise their right to self-determination to maintain their territorial status. This means that peoples (people in the constitutional sense) living within the borders of a State have the right to protect the integrity of their territory.189 The sovereign rights of states have been stretched more than before by the increasing value of international organizations, international cooperative relations, and human rights. Despite this, the international community thinks that ignoring the principle of sovereignty, which is the epicenter of international law, would be a major blow to the law and could cause chaos around the world.190 Therefore, the international community states that the sovereignty and territorial integrity of the states should be respected against contemporary separatist movements.191

We should not forget that; Illegality can only result from the violation of jus cogens, which is one of the basic international legal norms.192 Of course, if changes occur in a region, these changes are directly related to territorial integrity, but territorial integrity is not one of the jus cogens norms. The principle of territorial integrity of states is well defined in the UN Charter and is protected by several rules that prohibit interference in the internal judiciary of states. 193 It has a very close relationship with the basic principle of prohibiting the use of traditionally owned power

187 Papian (n 9) 17. 188 Louis Henkin, International Law: Politics and Values (Niijhoff 1995) 8, 100. 189 Ordeix and Ginesta (n 185) 934. 190 Christian Tomuschat, Secession and Self-Determination (Secession M. Kohen ed. CUP 2006) 23, 40. 191 UNGA Res 68/262 ‘Territorial Integrity of Ukraine’ 27 March 2014. 192 Crawford (n 2) 389. 193 Shaw (n 6) 443. 30 as a threat tool. The principle of territorial integrity of states is a fundamental principle of international law that guides international relations. 194

There are some external conditions required by the principle of territorial integrity. Likewise, it may have inherent implications for international legal practice. The principle of territorial integrity, which is a principle of international law, can also conflict with the principle of self-determination of peoples, another principle of international law.195 Spain and like-minded States (a) are unhappy with this Advisory Opinion as it refuses to impose the principle of territorial integrity on sub-states; (b) acts cautiously to avoid closing the door in the event of a healing separation, and (c) endeavor to determine whether there is a law under international law on the prohibition of declarations of independence.196 Although this view did not enable all states to recognize Kosovo as an independent state, it helped states wishing to recognize Kosovo do so; on the other hand, states that did not want to recognize Kosovo's independence continued to agree in their same mind.197

Moreover, on the one hand, Catalonia is doing various studies for the right to self- determination; on the other hand, Spain works for the right to protect its territorial integrity. These two struggles conflict and this is where the current tension comes from.198 The principle of territorial integrity of states is one of the most fundamental principles of international law, but it is clear that since the territories of some states are occupied by settlers from outside their borders, the places and situations of application of this principle must be analyzed very well.199 Separation, apparently, is the best case for self-determination and perhaps the creation of a new state. However, Catalonia's search for independence is not like a colony's searching for independence. Catalans make completely separatist claims for part of the Spanish state. These independence claims pose a great challenge to territorial integrity.200

194 Oliver Corten, “Territorial Integrity Narrowly Interpreted: Reasserting the Classical Inter-state Paradigm of International Law” (2011) 24 Leiden Journal of International Law 89. 195 See Burkina Faso v. Mali, I.C.J. Reports, 1986, 554. 196 Krueger (n 112) 137. 197 Borgen, (n 144), 1020. 198 Costa (n 176) 11. 199 Guibernau (n 179) 124. 200 Gragl (n 73) 193. 31

There is a general belief that territorial integrity provides stability in international relations.201 And therefore, as the Canadian supreme court ruled in Québec's separation case according to a certain framework, international law requires that the right to self-determination be exercised by the peoples in certain frameworks. The continued existence of sovereign States and the full guarantee of the territorial integrity of these states ensure that the unilateral right of secession is exercised only in cases of last resort and within carefully defined boundaries.202 It is generally accepted that territorial integrity above all guarantees stability in international relations, and therefore, as the supreme court of Canada ruled in Québec's separation case, international law expects the right to self-determination to be exercised by the peoples within the framework of the existing sovereign States and with the consistent maintenance of the territorial integrity of those states, the unilateral right to secede ‘arises only in the most extreme cases and even then under carefully defined conditions’.203

The Spanish constitutional court annulled the Catalan referendum law with its decision in October 2017. In the details of this decision, he emphasized that ‘the principle of territorial integrity is one of the basic elements of contemporary international law’, but it stressed that this right is 'self- determination in a way that never harms the territorial integrity of existing States'.204 According to Allen Buchanan, separation is more than a new political formation formed by people who think that the mother state has no deterrence on them and who have broken their ties with the main state. In other words, separation is the taking of the requested sovereigns, considering that people who have lost their ties with the mother state have the right to secede.205 Perhaps this could be described as a tense feeling between the right to self-determination and opposing and ignoring the previous sovereignty of its mother state.206 If secession is successful, the authority of the parent state is badly damaged in the area where it is located and a new understanding of sovereignty must be established

201 See especially Frontier Dispute (Burkina Faso v Mali) [1986] ICJ 554, 565, para 20 (Judgment of 22 December). 202 Supreme Court of Canada, ‘Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Québec From Canada’ 20 August 1998, 115 ILR 536, para 122. 203 Ibid para 126. 204 Tribunal Constitucional, Sentencia 114/2017, supra note 8 (translated by the author). 205 Allen Buchanan, ‘Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law’ (2004) Oxford 24. 206 Surya P Sharma, ‘Territorial Acquisition, Disputes, and International Law’ (1997) BRILL 219. 32 in its place.207 Moreover, such a separation, as in the case of Yugoslavia, could result in the complete division and destruction of the main state.208

4.2. The Right to Self-Determination of Catalans 4.2.1. Historical Background of Catalans The identities of nations are social structures that are created, interpreted, managed, and are a very important phenomenon, and the significance of national identities increased in the last decades of the 19th century.209 Although we cannot find any genetic or historical evidence that could distinguish some nations from one another, this notion also means that such a thing is not possible. We can see that different characteristics and limitations of one nation than another nation coexists. Spaniards and Catalans see themselves as one nation, while others see themselves as different nations.210 For example; Some Catalan football players played for the Spanish national team, while others refused to play for the Spanish national team. Besides, these preferences have survived until today without changing much over time.

In the nineteenth century, Catalans renewed their cultural and political knowledge and organized a political movement, spreading the understanding of Catalan nationalism, because the industrial economy that the Catalans organized in this century made this region more livable than the rest of Spain.211 With the Spanish Civil War and the establishment of Franco's dictatorial regime, Catalans faced enormous pressures and prohibitions in terms of individual and cultural rights. The Catalan language was banned, the identity of Catalans was openly denied, and Catalan self-government ended.212 Modern Catalan nationalism was born in the 1960s as a result of a democratic freedom struggle against the repression and lawlessness of dictator Franco. This progressive social movement was struggling for Catalonia's autonomy and the release of the imprisoned Catalans.213 When Franco died in 1975, regime members facilitated the transition to democratic rule. At that time, Catalonia was firmly supporting EU membership as a leading region

207 Brilmayer (n 12) 177-8. 208 Crawford (n 2) 390-1. 209 See Karl Cordell and Stefan Wolff, Ethnic Conflict: Causes, Consequences, and Responses (Cambridge: Polity Press 2010). 210 Castellà (n 170) 415. 211 Hans-Jürgen Puhle, Trajectories of Catalan Nationalism and Its Present Discontents (Klaus-Jürgen Nagel and Stephan Rixen (eds), Catalonia in Spain and Europe: Is There A Way to Independence? 2015) 14-5. 212 Gragl (n 73) 199. 213 Borgen (n 144) 1019. 33 with both its economy and industry, and they played a key role in the democratization of Spain, as it unified society within a culture of solidarity against anti-democratic practices in Spain.214 It is vital that Catalan nationalism was effective in overcoming the 1993 crisis. It also made a lot of effort for Spain to meet the conditions for joining the euro; however, many felt that Catalan loyalty and support were in vain, as Spain adopted a centrist approach.215

In 1979, a new Autonomy Act was ensured which was revised in July 2006.216 The autonomy status gave Catalans the right to form their own government, to have a Supreme Court, and a separate defense of territory with local and general powers. As in many other places, the Catalan Government has the capability of free movement only within the areas determined by the Spanish central government, as required by the autonomy status.217 It is the Catalan Autonomy Statute that sets the legal limits of the self-government agreement between the Spanish state and Catalonia. The Catalan Government has the right to enact and enforce laws on its own, such as education, social affairs, transit, the economic policy of Catalonia, and trade.218 Besides, the Catalan government is also responsible for the construction, and management of the rules in the health sector and the construction of health institutions, primary and secondary schools, universities, retirement homes for the elderly and citizens in need of care.219 In addition to these, the Catalan government is also responsible for some issues in foreign policy. In short, it has been a very important and promising process in the name of democracy for the Catalan government to have authority within the local jurisdictions in areas such as health, education, and collection of local taxes for more than thirty years.220

The Catalan regional government sends at the same time representatives to the Spanish national parliament. This also shows the existence of democratic developments regarding the right of representation of the Catalan. In Spain, the populations of some Spanish regions, such as the Basque regions of Navarra, face racial, linguistic, or cultural discrimination by comparison, but

214 Marti and Cetra (n 155) 115. 215 Guibernau (n 179) 130. 216 Ibid 133. 217 Ordeix and Ginesta (n 185) 933. 218 Title IV Competences (Articles 110–73), the Catalan Statute of Autonomy (2006). 219 Puhle (n 210) 17. 220 Ibid 19. 34

Catalans can never be considered in this class.221 The biggest goal of the new status, prepared in 2006, was to further raise the living standards of the people of Catalonia both in Spain and Europe. This has been a driving force for the improvement of the systems of the autonomous regions in Spain.222 In the early days, controversial principles such as institutions and provisions, economic responsibilities of the state towards autonomous communities, independence of the judiciary, determination of civil rights and citizenship duties, declaration of pragmatic principles, determination of historical rights, and extension of the scope of rights were added to the regulations of other Autonomous regions. 223

The Constitutional Court Decision of 31/2010 disappointed and angered not only the Catalan community but also many scientists.224 A few days after this decision, on 10 July 2010, the people in Barcelona protested with a very crowded march the change of this status, which they approved. Montilla who was both the leader of the Catalan section of the Spanish socialist party and the leader of the Catalan government led these protests, and so the first slogans for the independence of the Catalans were chanted.225

The Catalan Parliament declared the right to self-determination ‘as the democratic expression of its sovereignty as a nation’ on 27 September 2012, and wanted to gauge the opinion of the people after the next elections. Catalan political parties started to discuss the content and terms for the referendum.226 According to the election results, Esquerra Republicana, who wanted direct independence, managed to get many votes of the moderate nationalist party CiU, but the first and second parties managed to form a government by helping each other.227 In January 2013, the Catalan Parliament passed the sovereignty declaration so that Catalans could have the opportunity to legally decide their political future.228 This has made Catalan's ‘a politically and legally dominant

221 Eugenia López-Jacoiste, Autonomy and Self-Determination in Spain: Catalonia’s Claims For Independence from The Perspective of International Law (Peter Hilpold ed. Autonomy and Self-Determination, Edward Elgar Publishing 2018), 312. 222 Ibid 314. 223 Xabier Arzoz, Autonomy and self-determination in Spain: a constitutional law perspective (Peter Hilpold ed. Autonomy and Self-Determination, Edward Elgar Publishing 2018) 259. 224 Costa (n 176) 13. 225 Arzoz (n 222) 263. 226 Jacoiste (n 220) 313. 227 Arzoz (n 222) 264. 228 Resolution 5/X of the Parliament of Catalonia, adopting the declaration of sovereignty and right to decide of the people of Catalonia (23 January 2013) https://www.parlament.cat/document/intrade/7176 23 November 2020. 35 issue’. The Spanish government opposed this declaration and applied to the Constitutional Court for its annulment.229

2017 Catalans held their independence referendum on 1 October 2017.230 The Catalonian Parliament adopted this as the Self-Determination Referendum Act. It was an independence referendum that the Generalitat de Catalunya invited the people.231 The Spanish government declared this referendum contrary to the Spanish constitution on 7 September 2017, and again with the request of the Spanish government the referendum was annulled by the constitutional court.232 In September, the Spanish supreme court of justice ordered the police to block this attempt by detaining the people who prepared this referendum.233 According to the report of international observers invited by the Generalitat, various irregularities were made in the voting process, and the elections were far below the level they should have been, as the National Police and Civil Guard were using force.234

4.2.2. Legal Analysis Is the right to self-determination here about the situation of the Catalan? This question is about whether Catalans are seen as human beings, as stated in Article 1 of the UN Convention on Human Rights, because, as stated by international law, every human has the right to self- determination.235 The Catalan people have shared the same history, the same language, and the same culture from ancient times. And these common features mean that the Catalans and the rest of Spain are culturally and linguistically different.236 Also, if we look at Article 2, the existence of different nations such as Catalans and Basques is accepted. Although they are considered folk

229 Arzoz (n 222) 264. 230 Catalan referendum: Region's independence 'in matter of days' (4 October 2017) https://www.bbc.com/news/world-europe-41493014 accessed 12 October 2020. 231 Sam Jones, Catalonia to hold independence vote despite anger in Madrid, The Guardian https://www.theguardian.com/world/2017/sep/06/spanish-government-condemns-catalonia-over-independence- referendum accessed 17 October 2020. 232 BBC News, Spain Catalonia: Court blocks independence referendum, 8 September 2017 https://www.bbc.com/news/world-europe-41196677 accessed 18 October 2020. 233 Gemma Liñán, Catalonia's Superior Court Also Orders Catalan Police To Close Off Planned Polling Stations, El Nacional https://www.elnacional.cat/en/news/catalan-court-mossos-close-polling-stations- referendum_195894_102.html accessed 09 September 2020. 234 El Pais, Did the referendum comply with basic voting regulations? https://english.elpais.com/elpais/2017/10/01/inenglish/1506858911_482600.html 3 October 2020. 235 Brilmayer (n 12) 181. 236 Matt Qvortrup, Referendums and ethnic conflict (University of Pennsylvania Press 2014) 75. 36 under this clause, they are constantly referred to as part of the Spanish people.237 The question to be asked now is; Does the term 'people' in Article 1 of the UN Convention on Human Rights mean, as in the Catalan example, the entire population of a state or part of the state's population?238 Contrary to this view, to which a small number of people agree, there is often a tendency in both state administration and legal practice to restrict the principle of self-determination in order not to harm the principle of territorial integrity of the state.239 According to some commentators talking about external self-determination, the term 'people' in Article 1 of the UN Convention on Human Rights means only colonial peoples and the entire population of a state, so not groups or segments of the population in a country.240

Although there are cultural or linguistic features that make minorities or groups living within the borders of a state different from that state, the narrow meaning of this term is very troublesome. To understand that the term 'human' refers to a person in a culturally and legally broad manner with all her/his rights, it is necessary to work co-operatively and consider this term from all aspects.241 This idea that Considers the term 'people' in all its meanings and rights and stating that this term does not have to cover the entire population of a state, states that Catalans should have the right to self-determination.242 However, this idea does not give Catalans the right to leave Spain under article 1 of the UN Convention on Human Rights. Since the right to self-determination can only be exercised in a legal framework, people can exercise this right through self-determining practices.243 The right to self-determination protects the free decisions of individuals regarding their national identity, political, social, and cultural situation. If the state government practices that respect the rights of minorities living in the State, no one needs an external right to self- determination.244 External self-determination, also known as the right to secede from the parent state, is intended to be used only in exceptional cases and as a last resort, as stated in the next sections.245 International law stands in favor of the territorial integrity of the states rather than the goals of the nations struggling for political independence in line with the will of the people. Against

237 Puhle (n 210) 19. 238 Blanke and Abdelrehim (n 96), 547. 239 Hans Kelsen, ‘The Law of the United Nations: A Critical Analysis of Its Fundamental Problem’ (2017) AJIL 44(4) 51. 240 Cassese (n 39) 141. 241 Christian Tomuschat, ‘Self-Determination in a Post-Colonial World’ BRILL 16, 16. 242 Crawford (n ) 121. 243 Canadian Supreme Court, Reference Re Secession of Québec, 20 August 1998, (1998) 2 S.C.R., para. 126. 244 K. Doehring, Self-Determination (The Charter of the United Nations: A Commentary B. Simma ed. 1994), 65. 245 Blanke and Abdelrehim (n 96) 548. 37 this knowledge, the right to self-determination does not mean that people leave the main state and establish an independent state. Because exceptional circumstances are required for a region to separate from the main state.246

The question arises: what would happen if Catalans persisted in independence and the Spanish government continued to resist Catalonia's independence by legal means to preserve the territorial integrity and political unity of its state? As stated above, both the Spanish Constitution and international law do not allow unilateral separation of Catalans, but it is useful to take a deep look at the unilateral declaration of independence from the perspective of international law.247 Nevertheless, declaring independence unilaterally is considered unconstitutional as it violates Article 2 under the Spanish legal system. According to some opinions, this would be contrary to international law as a declaration of secession without the right to secede, which can only be used as a last resort, undermines the principle of territorial integrity of states. Yet this opinion was rejected by the ICJ in the Kosovo case negotiations.248 Although the pouvoir constituant's founding concept is much more transparent, when we look at the Spanish constitutional court's rulings on the Catalans' right to decide, we find that they are similar to the decision in the Kosovo view. If we focus on a representative decision, that decision is 42/2014. This case contains a constitutional objection to the 2013 agreement of Catalan Generalitat, which ratified the ‘Declaration of the People of Catalonia and the Right of Decision’.249 It was common knowledge that the charter was not a UDI and had no legal mandate, just a political and constitutional statement of intent. But the constitutional dream it caused paved the way for the referendum and the UDI, but the constitutional court canceled this dream.250 For similar reasons, it is unconstitutional to refer to ‘the people of Catalonia as the politic victor’ in the resolution, since Catalonia is a legally constituted subject through a constitutional recognition.251 According to the court, Article 1 of the Catalans autonomy charter states that ‘Catalans use their right to self-determination as citizenship under the

246 Otto Kimminich, A ‘Federal’ Right of Self-Determination?’ (Christian Tomuschat (ed), Modern Law of Self- Determination 1994 88(4)) 97. 247 Blanke and Abdelrehim (n 96) 545. 248 See Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo ICJ Rep [2010] 403, 438. 249 Jacoiste (n 220) 314. 250 Sujit Choudhry, ‘Secession and Post-Sovereign Constitution-Making After 1989: Catalonia, Kosovo, and Quebec’ OUP 2019, 466. 251 Arzoz (n 222) 265. 38 constitution and this statute’.252 Accordingly, an autonomous community cannot hold a unilaterally self-determining referendum to decide whether to stay with Spain because this means that the UDI will be unconstitutional. Some of the arguments a region uses to separate from the parent state may contradict the constitution of the parent state. But this does not mean that the act violates international law. The following established a new norm order called the law of coexistence in autonomous states. This order was created against the constitutions of the main states.253 According to the norm order, it is not against international law for Catalonia to declare unilateral separation without the permission of the Spanish government. However, it will be very difficult to defend this declaration in international courts before considering whether an autonomous region's unilateral declaration of independence is unconstitutional or unlawful because such statements see separation as a last resort.254 When sovereignty, which is the cornerstone of international law, has to choose between the principle of territorial integrity of states and the principle of self-determination, it generally chooses to protect the territorial integrity of states in order not to harm peace and stability.255

252 Borgen (n 144) 1021. 253 Raic (n 76) 289. 254 Blanke and Abdelrehim (n 96) 546. 255 Helmut Steinberger, Sovereignty ( Encyclopedia of Public International Law ed. R. Bernhardt (4) ) 513. 39

5. CONCLUSION International law generally does not prefer to explain all the consequences of the right to self-determination, but it allows the right to use only in certain circumstances, and the right to self- determination cannot be guaranteed for any nations in general. Catalans can well exercise their right to self-determination as a people within the borders of the Spanish state; unfortunately, their conditions are not enough to exercise the right to self-determination.256 We can say that Catalonia has all the rights granted by international law to minorities and ethnic groups.

The Spanish Constitution protects autonomous governments’ rights and allows them to govern themselves.257 The legal status’ differences of each autonomous government should be determined and each autonomous government should have full loyalty to the central government while using its powers for the needs of the minority it represents.258 Under these circumstances, as a very general rule, states do not grant the unilateral right to secession to constituent elements or groups of people within the state. The desire to secede arises exceptionally when the state consists of a large number of peoples who have the right to self-determination. For this reason, if the central government does not comply with the autonomous governments, they will pave the way for a legal separation according to international law. 259

The Spanish constitutional court stated that Catalonia’s parliament decision related to holding a referendum has no place in the law, according to the court, Catalan’s condition does not satisfy to holding a referendum for secession. 260 Besides, the court stated that the practices implemented to increase the financial autonomy of Catalonia violated the principle of equality and they were unconstitutional. 261 Nevertheless, all these decisions and central government position triggered the Catalans to operate the referendum mechanism to decide their political future. In fact, the main purpose of these referendum practices that Catalans wanted to do, was to become an independent nation.262

256 Guibernau (n 179) 124. 257 Jacoiste (n 220) 314. 258 STC 46/1990, RTC 1990, 46 [4]. 259 Jacoiste (n 220) 315. 260 Lecours and Duprupe (n 147) 18. 261 Ibid 16. 262 Lopez and Calvet (n 24) 516. 40

The repercussions of the referendum continue, even after Catalans insisted on the referendum and exercised it.263 Even the people gave great support to the desire for independence, an independent state couldn't emerge, because discretionary separations do not occur much in places governed by liberal democracy.264 On the contrary to independence expectations of Catalans, the central government first suspended Catalan autonomy and arrested all civil and political leaders who supported independence and then decided to hold regional elections across the country.265 Accordingly, the referendum solidified both sides, and it became almost inextricable, as well as causing enormous problems for both the Catalan government and the central government.266

Holding an independence referendum by ignoring the central government is against the 1978 Spanish Constitution and international perspectives.267 Article 2 of the Spanish Constitution says that the Spanish nation is an inseparable whole. Even if Catalans insist on independence, they will not be able to achieve it because this goal of the Catalans cannot even be negotiated with the central government, and they have deficiencies in compliance with international law rules.268 In order to solve the holding an independence referendum and exercising the right to self- determination, and also get recognized by other states, Catalonia has to get the approval of the Spanish Government. Otherwise, without the approval of Spain, recognition by the vast majority of the states would be a dispute for Catalonia.269

The advisory Kosovo opinion of the ICJ does not give enough legal ammunition to the ground on Catalan’s allegations for secession. The people of Kosovo were in different condition than Catalans. They were oppressed by Serbs and they cannot exercise their rights as a minority; on the other hand, the Spanish central government provides enough opportunity for Catalans to exercise their rights as an autonomous government.270 Even the judge Yusuf argues in the advisory Kosovo opinion that the internal self-determination of peoples in non-self-governing territories under international law, a status ethnic group should have no claim other than one-sided self-

263 Blanke and Abdelrehim (n 96) 549. 264 Arzoz (n 222) 267. 265 Jacoiste (n 220) 317. 266 Borgen (n 144) 1022. 267 Ordeix and Ginesta (n 185) 935. 268 Puhle (n 210) 20. 269 Blanke and Abdelrehim (n 96) 542. 270 Ordeix and Ginesta (n 185) 937. 41 determination for internal self-determination, the Kosovo case does not cover the Catalonia referendum entirely, because the separatist aims of the Catalans cannot be based on the right to self-determination stipulated in international law271

For the Scottish referendum, their constitutional future could have similar consequences to other separatist movements in Europe. This is especially true for the Catalan independence movements.272 It can say that despite the similar developments between the Catalan and the Scottish case, these two cases end up differently in international law. On the one hand, there is ‘negotiated independence’ in the Scottish example, while in the Catalonia case the national government demands the right to exercise party sovereignty.273 However, the historical development of Catalonia's legal situation is different from that of Scotland. Catalonia integrated into the Spanish state from the mid-fifteenth century and maintained some institutions of self- government until the eighteenth century. Scotland is located in the territory of a parent state (United Kingdom) under the 1707 Union Agreement, and the 2014 referendum was organized under the provisions of the Scotland Act as seen before. In the case of Catalonia, there is no consensus in the national government and the principle of territorial integrity of the main state prevails, so as the Constitutional Court stated in a recent decision, this initiative by the Catalans contradicts the Constitution of Spain.274

In order to gain independence from Spanish territory is against the current Spanish Constitution. Thus, it requires constitutional change. Therefore, a solution similar to the Scottish agreement is not currently possible. However, Catalan separatists say they will halt their unilateral separatist plans if the referendum proposal is opened for negotiation. As can be seen from the experiences of Canada-Quebec and UK-Scotland, it is clear that a referendum negotiated and agreed by both sides is a common solution, both in Europe and where there are many other division conflicts. Besides, the 1998 Quebec Separation Opinion, published by the Canadian Supreme Court, provides an example of principles and guidelines regarding such events. As San Jaume-

271 Jacoiste (n 220) 316. 272 Blanke and Abdelrehim (n 96) 541. 273 Josep Desquens, ‘Europe’s Stateless Nations in the Era of Globalization: The Case for Catalonia’s Secession from Spain’ BOLOGNA CTR J. INT’L AFF. (2003) 85, 94–6. 274 Spanish Constitutional Court’s judgement on Catalonia declaration’s compatibility with the Spanish Constitution, 25th March 2014, available http://www.tribunalconstitucional.es/es/salaPrensa/Documents/NP_2014_026/2013- 01389STC.pdf accessed 18 November 2020. 42

Calvet points out, unilateral actions are still seen as options by separatists. But without the consent of the Spanish State, the cost of a final unresolved separation would be dire in the context of the European Union. Moreover, this unilateral separation wish of the Catalan Government is not based on the support of a strong majority. 275

In the current situation, Spain is trying to protect its territorial integrity and Catalonia is demanding the right to independence. Undoubtedly, it is difficult to find a solution to this complex situation. In seeking a remedy to keep Spain together, Federalism was considered as it was based on ethnocultural pluralism.276 However, given Spain's constitutional environment and its sharpened sides, such a solution seems impossible, at least in the short term. However, what Spain and Catalonia are concerned with is the limitation of the right to self-determination by legitimacy.277 This means that Spain must make every effort to maintain, protect, and possibly expand Catalonia's autonomous status and that Catalonia must rely on peaceful methods to negotiate with Madrid to achieve its goals. So, the only road ahead is not one-sided provocation, only compromise, and mutual agreement. As long as the Spanish government strives for the right to self-determination, other States must respect the sovereignty of Spain and, in particular, the territorial integrity of the Spanish State.278

Finally, rather than legal validity, Catalonia's unilateral declaration of independence under international law raises other problems. So what if Catalonia had declared its independence unilaterally without the consent of the Spanish Government and without taking any supportive steps to support this independence movement? According to the principle of efficiency, if independent states accept this new structure as an independent state, a new state will emerge politically and de facto. So who can deny the existence of the new Catalan state? 279

275 Marc Sanjaume-Calvet, ‘Catalonia: From Secessionism to Secession?’ (2016) http://www.e- ir.info/2016/01/15/catalonia-from-secessionism-tosecession/ , accessed 11 September 2020. 276 Will Kymlicka, ‘Is Federalism a Viable Solution to Secession?’ (Theories of Secession ed. Percy B Lehning 1998) 123. 277 Buchanan (n 204) 70. 278 Calvet (n 275). 279 Jacoiste (n 220) 319. 43

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