The Catalonia crisis is the culmination of the Catalan government’s 10 year move towards independence from the central Spanish government. While the Catalan government asserts it has the right to hold a legally binding independence referendum, the Spanish Prime Minister, Mariano Rajoy, insists that such a referendum would not go ahead and has promised to use all legal means at the government’s disposal to do this. It considers the referendums to be an area of competence belonging to the central government, not to a devolved unit like Catalonia, and even if it was legal it would be only “advisory” and “consultative” rather than legally binding. Should Catalonia have the right to hold an independence referendum? Is this a human rights issue? And how does this case compare with other territories like Scotland and Quebec? All of this will be discussed in the following article.
There is an argument for saying that the right to decide is a collectively exercised human right, and that EU law enforces this. As it stands Spain is in the European Union, and so it is bound by EU law. In the late 1960s and early 70s, the European Court of Justice of the EU based in Luxembourg, included human rights as “constitutional traditions common to the Members States.” While the right to hold a referendum is not expressly granted as a human right in European law, political rights of Europeans are recognised and protected. The rights relevant here are the exercise of the freedom of expression (article 10 ECHR) and freedom of assembly and association (article 11 ECHR). In 2001, the European Court of Human Rights stated that “the fact that a group of persons calls for autonomy or even requests secession as part of the country’s territory…. Cannot automatically justify a prohibition.” Catalonia’s legitimate right to decide, a report written by Nicolas Levrat and three other international experts says this decision by the ECtJR means that “such call for secession is not as such contrary to national security and may not be invoked, in a democratic society, to prevent the expression of such will, nor the assembly of peoples to exercise such right.” Yet ex-Catalonia president Puigdemont and 13 of his deputies have been ordered by Spain to appear in court in Madrid. They are accused of rebellion, sedition and misuse of funds. Surely the representatives of a country have a human right to organise a referendum without the fear of being arrested, under articles 10 and 11.
Yet there are also factors supporting the idea that international law does not provide a right to independence in this case. This is because, according to George Revel, self-determination and “a right to independence” are not synonymous. Indeed there are only three limited circumstances in which Catalonia would have the right to independence according to international law:
- The self-determining territory is under foreign colonial rule.
- The territory is subject to gross violations of human rights and humanitarian atrocities committed by the state.
- The territory is excluded from the political process of the state
“Given that Catalonia is not a colony, post-Franco Spain has not committed gross human rights violations in the region, and Catalonia enjoys political inclusion at every level of government in Spain,” says George Revel, “it fails to meet these three circumstances.” According to this reasoning, international law, therefore, does not support Catalonia’s claim of an international “right to independence” under the current circumstances. Catalonia would not have a human right to hold a referendum.
Catalonia’s legitimate right to decide supports Revel in that Catalonia does not seem to be a case of unjust annexation (given that Catalonia became part of the state three centuries ago), nor does there seem to have been massive violations of human rights caused by the Spanish state that would justify Catalonia having the right to secede. However, the article does identify a problem in regards to the third circumstance justifying independence which Revel describes: although Catalonia is not exactly excluded from the political process of the state, the right of the Catalan people to self-determination within Spain – “internal self-determination” – is only imperfectly guaranteed. According to Will Kymlicka, if Catalonia has a full right to internal self-determination, then it has no right to secede. Yet there is evidence to show this is not the case: in April 2014 for example, the Spanish Parliament denied the possibility to organise a referendum would have been constitutionally valid. Indeed in the last few years Madrid has resorted to all possible legal means to bar any discussion of the Catalan claims which led to a political deadlock. According to Catalonia’s legitimate right to decide, “[Catalonia is] readily denied any possibility of debating their future with the legitimate authorities, in spite of the fact that this right has been repeatedly proclaimed by the Constitutional Tribunal.” As a consequence, it would not be correct to say that Catalonia is completely involved in all political processes, and so it should have the right to independence.
Indeed the fact that Spain has forbidden Catalonia from holding a referendum stands in stark contrast to other countries such as Canada and England. In 1995 Quebec held an independence referendum which was won by the “No” camp by a narrow margin. One argument goes that this therefore puts into question Spain’s democratic credentials for not allowing one at all. Jose Javier Olivas rejects this view however and says that “The pro-independence camp selectively uses the referendums in Scotland and Quebec to justify holding a similar vote in Catalonia…. these two cases are rare exceptions since the overwhelming majority of democracies in the world would never allow a referendum on the secession of part of their territory.” On one level Olivas is convincing since secession in Kurdistan and in Kosovo was denounced by their mother states: Spain is clearly not the first country to have refused an independence referendum. But should we really be taking countries like Kosovo and Kurdistan to be shining examples of democracies? The Serbian regime in Kosovo was widely viewed as illegitimate by the internal community and the Kurds suffered persecution in Iraq. It would be better for Spain not to follow their example and to allow an independence referendum.
Milena Sterio suggests that the key difference between Spain and these two countries is that Spain is widely recognised to be legitimate by the international community and Catalonia is generally not regarded as being under oppression by Spain: as a result Spain may be more justified in not allowing an independence referendum. Yet undeniably there have been human rights violations committed by Spain since the crisis in Catalonia. The Human Rights Watch documented excessive use of force against peaceful demonstrators by Civil Guards or national police as they sought to execute court orders to prevent the poll for independence. As Kartik Raj, Western Europe Researcher at Human Rights Watch states, “The police may well have had the law on their side to enforce a court order, but it didn’t give them the right to use violence against peaceful protesters.” Indeed, Catalonia’s Health Department estimated on October 2 that 893 people had reported injuries to the authorities. We previously talked about article 10 (freedom of speech) and article 11 (freedom of assembly and association and here Spain seems to not be respecting these.
Overall, Catalonia should have the right to call an independence referendum because otherwise that would go against the human rights of freedom of speech and freedom of assembly under EU law, which Spain is bound by. Indeed Spain’s excessive use of violence in preventing Catalonian citizens from voting can be said to be human rights violations in themselves. Moreover, though Spain is widely considered to be a legitimate democracy by the international community (meaning that Catalonia’s call for secession may not be highly regarded by this community), it cannot be said that Catalonia is completely included in the political processes of the state. Revel says that exclusion from political process is a requisite to secession being justified and to some extent this seems to be the case in Catalonia, as it is blocked from fully realising its “internal right to self-determination” by Madrid. One also wonders why Spain is so against an independence referendum when Canada and England allowed one for Quebec and Scotland, respectively. It seems to be violating Catalonia’s human right to decide for itself by preventing it from calling a referendum.
by Chiara Cappelletti
