Self-determination is not only a legal right, but a moral one, too

Catalonia is a part of the world which few people had heard very much about before last weekend. In the UK, its dispute over independence had only awakened a fringe following mostly among SNP supporters who naturally view Catalan nationalists as kindred spirits in their peaceful quest to obtain independence from Spain via the ballot box. 


But Sunday’s images of police brutality against citizens attempting to participate in the controversial referendum have changed all that. Even ardent unionists on social media have been criticising the Spanish government and police for their poor handling of the crisis, highlighting the contrast with the way the UK government dealt with Scotland’s referendum in 2014.


It is of course interesting to consider whether David Cameron would have been happy to sign the Edinburgh Agreement, which made that referendum possible, if he had not been confident that the referendum would be won by the pro-union Better Together campaign. As a result of his somewhat complacent judgement we quietly avoided facing the dilemma Spain is currently grappling with merely by accident, and may one day find ourselves publically divided over it after all.


That dilemma is whether a putative breakaway state should have the right to self-determination if its parent state refuses consent. It frequently gets wrapped up in legalese, which can obscure the fact that there is an underlying moral right to self-determination, regardless of what any country’s constitution says, or of the correct interpretation of international law.


This is important because Sunday’s referendum in Catalonia can be seen as illegitimate at the same time as the Spanish constitution can be considered unjust for its clauses outlawing autonomous regions from seceding without consent from the rest of Spain. It is also possible to view this referendum as illegitimate even while taking issue with the tendency for ‘territorial integrity’ to take precedence over self-determination in international law.


The government in Barcelona has not taken all of the steps it ought reasonably to have taken to ensure that its referendum would be free, fair and legal. This is not to say that supporters of Catalan independence should capitulate if their lawyers tell them that the International Court of Justice (ICJ) is unlikely to back them up, but they should have ensured that they could make the strongest possible case for independence.  


I am no legal expert, but as far as I understand it there is a tension in international law between the right to self-determination and the right of existing states to preserve their territorial integrity. Outside of former colonies this tension seems usually to resolve itself in favour of existing states’ rights, provided that there is not grave and systemic violence, discrimination or other human rights abuses taking place. 


If that is the legal consensus, then I don’t believe it is morally justified for reasons I’ll set out in a moment, but the Catalan government did unnecessarily violate its own laws along with perfectly reasonable EU guidelines on the timing of the referendum, the provision of statutory legislation for it and neutral administration of the process. These conditions could easily have been satisfied, and would have strengthened the case that the referendum was a morally legitimate exercise in self-determination.

However, there are other conditions set down in the Spanish constitution and by the United Nations which cannot easily be satisfied without stifling self-determination. It is not right for the majority of the Spanish people to effectively wield a veto on Catalan independence, which is essentially what is happening as long as Spain’s constitution remains unchanged. Nor is it right for territorial integrity to be judged more important than self-determination in an international legal dispute such as any that might arise between Spain and Catalonia. 


It is certainly true that the moral case for secession from a relatively benign state like Spain is far less pressing than cases put in the past for secession from more brutal states elsewhere in the world. Nevertheless, to obstruct self-determination altogether ought to require a stronger objection than this, particularly in the case of a putative state as populous as Catalonia. 


Imagine the authorities on Eel Pie Island were to hold a referendum and declare independence from the UK. Perhaps it would be perfectly reasonable to in effect coerce them into continued union, since not every similarly sized area could tolerably secede without creating total chaos (though Spain’s tiny northern neighbour Andorra might disagree). But coercion becomes more perverse the larger the putative breakaway state under consideration. It entails coercing a greater number of people, and may even risk a flare-up of violence. At that point, attempting to prevent territorial losses starts to look like a forlorn cause with hollow justification. It is also more perverse when the putative breakaway state is already legally recognised in some way as an existing entity, as is the case with areas such as Catalonia that have been granted devolution.


I don’t know whether international public opinion, international courts or perhaps even the Spanish government will or will not decide in the future to respect self-determination in Catalonia. Regardless of whether they do, the Catalan government and parliament must attempt to remain within the law as far as they possibly can if they want to take the high road. But, if a parliament of a putative state the size of Catalonia follows this approach in the future, and votes to hold a referendum, its people should not be obstructed from determining their own destiny. Political union is only a noble concept when it is founded on the logic of co-operation between peoples, and all the benefits that flow from this. But co-operation is achieved by mutual consent, not by coercion, nor by constitutional gerrymandering, nor by the decree of judges.            

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