Secession and Self-Determination in Western Europe - The Case of Catalonia - EJIL - Talk!

10/23/2020 Secession and Self-determination in Western Europe: The Case of Catalonia – EJIL: Talk!
EJIL:Talk!
Blog of the European Journal of International Law
October 18, 2017
Secession and Self-determination in

Western Europe: The Case of Catalonia
Written by Marc Weller
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This presentation is based in part on the Legal Opinion by an

International Commission of Legal Experts addressing the
question of Catalonia: The Will of the People and Statehood.
The Commission was composed of Professors Marc Weller
(UK ), John Dugard (South Africa), Richard Falk (USA) and
Ana Stanic (Slovenia). Although the Opinion was
commissioned by Esquerra Republicana de Catalunya, its
ndings represent the agreed and independent views of the
authors. While based on the Opinion, which will be published
in due course, this contribution does not purport to give an
authoritative rendering of it, but instead represents the
views of the author.
This contribution assesses the claim to statehood of Catalonia,

addressing in turn:
The criteria for statehood;

The legality or otherwise of unilateral declarations of independence;
The issue of self-determination;
Objective criteria of Statehood
Catalonia can easily meet the classical, objective criteria for statehood.
It has a clearly de ned territory of some 32,000 sq km, featuring clearly
de ned boundaries. Its stable population numbers around 7.5 million,
far in excess of many recently independent states in Europe and
beyond. It is the most economically viable region when compared to
other parts of Spain. Even under autonomy within Spain, Catalonia has
https://www.ejiltalk.org/secession-and-self-determination-in-western-europe-the-case-of-catalonia/ 1/34
p p y p ,
exhibited most of the functions of effective government.
Whether Catalonia would in EJIL:Talk!
fact exercise fully independent powers of
government can only betheassessed
Blog of if and
European Journal when it decides
of International Law to implement
its declaration of independence, at present suspended in application.
Catalonia has generated a substantive transitional law, to apply pending
the adoption of a new constitution once independence proceeds. That
law would assign all public powers to the new state, including foreign
affairs powers (‘capacity to enter into international relations’). Hence,
Catalonia is, at least potentially, capable of statehood.
Negative subjective criterion
In addition to the classical, objective criteria, there are negative and

positive subjective criteria of statehood. The negative criterion,
con rmed by the International Court of Justice in the Kosovo Opinion,
demands that statehood must not be tainted by jus cogens violations.
There is no suggestion of such conduct by Catalonia in this instance.
First positive subjective criterion: A manifestation of popular will
The positive subjective criteria come in two guises: rst, there must be
an act of will of the population, and second, that will must be enacted
through a declaration of independence.
Any change in the social contract of a political community as dramatic

as an act of secession from the established legal order must be based on
the will of the people. Ordinarily, this would take the form of a
referendum, although in some instances (dissolution of
Czechoslovakia), concurrent decisions of the elected national and
regional assemblies have been taken to be suf cient.
The international legal requirements for a valid referendum are only

emerging. Still, in analogy to emerging standards on democratic
governance, at least within Western Europe, it is clear that there must
be a free and fair campaign and a transparent and open balloting
process. In this instance, any intimidation came from the side of the
Spanish government, including arrests, raids and other measures
against pro-independence campaigners and of cials.
It has recently been asked whether a referendum should take place

within the potentially seceding entity or whether it needs to take place
within the potentially seceding entity, or whether it needs to take place
throughout the state from which secession is sought. This argument
was attempted by the USSR, EJIL:Talk!
when seeking to oppose the secessions of
the Baltic republics,
Blog before the Journal
of the European Unionofdissolved. Clearly, widespread
International Law
practice in the dozen or more cases since then has con rmed the
obvious fact that the referendum requirements relates to the
population seeking to establish a new legal order for itself. The interests
of the other parts of the state are to be preserved through the
requirement of negotiation, to which reference will be made below.
In some instances, a transition agreement provided for a minimum

threshold of voter participation in a referendum (South Sudan).
However, there are no rm international standards in this respect. The
Catalonia referendum attracted participation of some 42 per cent of
the electorate. However, Catalonia asserts that an additional large
percentage of voters were precluded from participation due to the
forcible closure of voting stations and other acts of interference by the
central Spanish authorities. Had they been able to participate, Catalonia
claims, participation would have been around 57 per cent. It is assumed
that the overwhelming majority in favour of independence of some 92
per cent of votes actually cast would have been retained.
Given the active obstruction of the poll by the Spanish central

authorities, extending even to forcible interference in it, any claim that
that referendum lacks credibility due to insuf cient participation rings
somewhat hollow. Moreover, non-participation does not provide a way
for the side likely to lose in a referendum to frustrate it, provided the
poll was suf ciently fair and inviting for all. This was con rmed by the
Badinter Opinion in relation to the Bosnian referendum that was
boycotted by ethnic Serbs.
Second positive criterion: Declaration of Independence
The nature of the declaration of independence, signed by the President

of Catalonia on 10 October 2017, but immediately suspended, has
remained slightly uncertain thus far, leaving room for negotiation with
the central authorities of Spain. Its entry into force would require a
further act on the part of the Catalonian authorities, potentiallyto be
backed by a vote of the elected representatives.
A criterion of internal legality?

Spain has argued that the actions EJIL:Talk!

of the Catalan authorities, reaching
back to its declaration
Blog of theof sovereignty
European on 23 January
Journal of International Law 2013, are in
violation of Spanish constitutional law. The Constitutional Court of
Spain has consistently supported this view. Somewhat oddly, it has
recently started to act as enforcement agent of its decisions, assigning
what appear to be disproportionate nes to individuals supposedly
disregarding its ndings (apparently accumulating at a staggering rate
of Euro 12,000 a day in some instances).
This issue raises the question of which legal order governs an act of
secession. Obviously, an act of secession consists precisely of the
removal of a population and territory from an existing legal order and
the consecration of a new, independent legal order. Hence, it is not
appropriate to evaluate the lawfulness of unilateral secession according
to the legal order against which it is directed.
The international Court of Justice found as much when it considered

the declaration of independence of KosovoIt Court determined that the
declaration was not issued by the elected representatives of Kosovo
acting as an organ of the state from which secession was sought (in that
case, the Provisional Institutions of Self-government of Kosovo). Rather,
one might assert, these representatives were now exercising a direct
mandate from the people in founding a new, original jurisdiction. The
Court continued: ‘nor was it an act intended to take effect, or actually
taking effect, within the legal order in which those Provisional
Institutions operated,’ thus clarifying expressly that a declaration of
independence does not take place within the legal order from which the
entity seeks to remove itself [Kosovo AO, para 121.] In relation to
Kosovo that legal order was based in a Chapter VII decision of the UN
Security Council. The rationale of the Court would, a fortiori, apply to
cases of ‘ordinary’ constitutional law not based in such a higher-level,
supranational decision. Hence, much of the argument relating to the
purported unconstitutionality of Catalonia’s conduct at the point of
declaring independence appears to be misplaced.
Capacity to Enter into Foreign Relations and Recognition
It is broadly accepted that the existence of a state is a matter of fact,

rendering recognition declaratory. This was noted in the Badinter
rendering recognition declaratory. This was noted in the Badinter
Opinions and con rmed in subsequent pronouncements. Hence, the
attempt by some to con ate the EJIL:Talk!
requirement that a state must have the
capacity to enter Blog
intoofinternational relations
the European Journal withLaw
of International the need to attract
widespread recognition is not persuasive—it would mean introducing
the constitutive theory of recognition through the backdoor, after
having just rejected it. Instead, capacity to enter into international
relations means just that: capacity. A state must claim for itself the legal
competence to engage in foreign relations. This requirement, drawn
from the venerable Montevideo criteria, made sense when the
international system was populated with a range of quasi sovereign
entities, such as protectorates, which might have been lacking in that
attribute.
That said, it is for course clear that recognition remains crucial, if not for
statehood as such, then for the ability of an emerging state to actualize
its statehood through international intercourse and membership in
international relations. As Somaliland has found for over two decades,
statehood in the absence of signi cant recognition remains precarious.
And, as Kosovo is still nding despite having assembled some 115
recognitions, independence without membership in key international
institutions can be uncomfortable.
No prohibition of independence
In the past, it was sometimes argued that unilateral independence

cannot lawfully occur, as it would breach the rule of territorial integrity
in international law. The only way to cure this defect would be consent
to independence from the central authorities, or perhaps overwhelming
international acceptance of statehood in exceptional circumstances.
This minority position has now been overcome by the International
Court of Justice. In the Kosovo Opinion, the Court con rmed that ‘the
principle of territorial integrity is con ned to the sphere of relations
between states.’ [Id., para 80.] That is to say, the principle precludes
disruption of the territorial integrity of one state by another, but it does
not apply internally, in relation to populations seeking secession.
It is clear that there is a strong policy preference of states for

maintaining territorial unity. At times, this preference has been
re ected in pronouncements by the UN Security Council. However, as a
matter of law, rather than policy preference, the international system is
matter of law, rather than policy preference, the international system is
neutral on the question of secession. [Quebec Reference, para 140].
An entitlement to secession? EJIL:Talk!
If secession is not prohibited, this means that its success of failure will
be determined by the question of whether or not the seceding entity
gains and maintains effectiveness. This type of case might be termed an
‘unprivileged’ secession. Of course, international law also provides for
privileged secession. These are instances covered by the principle of
self-determination in the sense of secession.
In cases of privileged secession, international law positively supports

possible independence as a desired outcome. This effect is particularly
powerful in colonial cases. By 1960, the organized international
community accepted that colonialism is a historic wrong. It later
enacted an aggressive doctrine of self-determination, aiming to ensure
that that decolonization would succeed in relation to the increasingly
few holdout colonial states (mainly pariah states like the then still
fascist Spain and Portugal, and racist South Africa).
The immense power of the doctrine of colonial self-determination is

however balanced by its restrictive eld of application in the colonial
context, by its con nement to self-determination within uti possidetis
boundaries, and by the fact that the doctrine generally only applies at
one single moment in time. Many populations around the world
experience what they consider colonial domination or exploitation.
However, it is clear that colonial self-determination now only applies to
a handful of cases that remain clear instances of classical colonialism so
listed by the UN. Or, in other words, these are cases of the acquisition
and domination of a territory and population, during the time of
imperialism, by a metropolitan power that is radically racially distinct
and divided from the colonial territory by an ocean, for the purposes of
economic exploitation. Catalonia is clearly not among them.
Catalonia can also not rely, at least directly, on the doctrine of

constitutional self-determination which was consecrated in the wake of
the secessions from, and then the dissolution of, the former Yugoslavia.
Under Spanish constitutional law, Catalonia is clearly an autonomous
territory. Indeed, in contrast to some other autonomies in Spain, it is an
‘original’ autonomy, taking account of its distinct history, language and
culture. However, in view of the clear provisions opposing secession in
culture. However, in view of the clear provisions opposing secession in
EJIL:Talk!
the Spanish constitution, it would not be easy to derive a claim to self-
determination from the
Blog domestic
of the legal order
European Journal of Spain.
of International Law
Catalonia will undoubtedly point to the increasing human rights

violations committed by the central government over the past weeks.
Moreover, there is the threat of placing Catalonia under direct rule,
suspending its autonomy, which may well be implemented before this
contribution is posted. It might be tempted to invoke the doctrine of
remedial secession in consequence. According to that still contested
doctrine, repression of a population, or its exclusion from
representation in the state, generates a self-determination entitlement
in the sense of secession. However, it is not clear that the gravity of
repression or exclusion is suf ciently well established as yet to trigger
the application of the doctrine.
Self-determination in Democratic Societies
This does however not mean that self-determination as a legal

entitlement is irrelevant in this instance. It is universally agreed that the
authority to govern must be based on the will of the people, as is stated
in innumerable international standards, starting with the Universal
Declaration of Human Rights. Virtually all national constitutions are
expressly based on this democratic principle which has also been
determined to be a ‘fundamental feature of the European public order.
[Mathiue-Mohin and Clerfays, ECTHR Judgement of 2 March 1987,
para 47.]
The highly nuanced ruling of the Canadian Supreme Court in the

Quebec case has applied this doctrine to the present context of possible
secession. It was noted above that a declaration of independence marks
the point at which the seceding entity steps out of the constitutional
order of the central state. Its conduct up to that point remains subject
to constitutional law, although even then the central state is not
unconstrained. While the Court found that there was no positive
entitlement to statehood outside of the colonial context or in the
absence of severe repression or exclusion from the state, it
nevertheless concluded that a state cannot ‘remain indifferent to the
clear expression of a clear majority of Quebecers that they no longer
wish to remain in Canada. The rights of other provinces and the federal
wish to remain in Canada. The rights of other provinces and the federal
government cannot deny the right of the government of Quebec to
pursue secession, should a clear EJIL:Talk!
majority of the people of Quebec chose
that goal, so long Blog
as in doing
of the so, Quebec
European respects Law
Journal of International the rights of others.’
[Quebec Reference, para 87.]
The mechanism to ensure that a seceding entity respects the rights of

other parts of the state is, according to the Supreme Court of Canada,
negotiation. Secession should not be imposed unilaterally, nor can it be
excluded from the outset. Iinstead both sides are required to negotiate
in good faith about a settlement. As the Court put it: ‘The negotiations
that followed such a vote would address the potential act of secession
as well as its possible terms should in fact secession proceed. There
would be no conclusions predetermined by law on any issue.’ [Id, para
151.] Others might add that alternatives to secession should be
attempted, before independence should be contemplated.
In this instance, Catalonia can claim to have embraced alternatives to

independence and offered negotiations throughout. In 2006, it settled
for an enhanced autonomy arrangements that would have recognized
its identity as a nation. This agreement was accepted by the Spanish and
Catalonian parliaments, followed by a referendum in Catalonia. The
Constitutional Court, in 2010, struck down key elements of the deal,
including the recognition of Catalonia as a ‘nation’ within Spain.
Since then, Catalonia has taken a series of steps, including its

declaration of sovereignty of 2013an informal public consultation on
possible independence of 2014, the regional elections of 2015 billed as
a virtual referendum on independence, and now the recent referendum.
Catalonia points to the fact that it has offered negotiations throughout.

Spain has refused and instead insisted on compliance with the existing
constitutional order, and continues to do so.
To the Catalonians, it may appear as if this legal order has been used at
every step as a means to disenfranchise, rather than enfranchise them
in relations with Spain. After all, that legal order has already failed to
deliver even the modestly enhanced autonomy backed at the time by
popular will in Catalonia and by the acts of the Spanish legislative and
executive adopted according to the constitutional process.
EJIL:Talk!
If discussions within the constitutional order cannot produce results, or
if it appears to oneBlog
side that
of the that Journal
European orderofisInternational
bound toLaw place it in a position
of inequality and disadvantage, it is not surprising that pressure to
simply step out of that framework through a declaration of
independence increases. Croatia and Slovenia took that view when the
central authorities in Belgrade failed to contemplate a looser federal
system for Yugoslavia. Belgrade had relied on its dominance in the
Yugoslav central institutions, and on the fact that independence did not
appear to be available in the alternative. In the end, the entire state
dissolved in consequence.
The lesson of the past therefore may be that it is good to talk.
Related
Democratic Statehood in A Footnote on Secession Democratic Statehood in

International Law: A October 26, 2017 International Law
Rejoinder to Jean In "EJIL Analysis" August 6, 2013
d’Aspremont and Brad In "EJIL Analysis"
Roth
August 9, 2013
In "EJIL Book Discussion"
CATEGORIES
Self-Determination States and Statehood
TAGS
Catalonia referendum secession
Marc Weller
EJIL:Talk!
Marc Weller is Professor of International Law and International Constitutional
Studies in the UniversityBlog
of Cambridge.
of the European He is the
Journal former Director
of International Law of the Lauterpacht
Centre for International Law and…
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24 comments
Jens Iverson says

October 18, 2017
This is very helpful in some respects. I have a great deal of respect for the
authors. I also have a few quibbles.
"Hence, it is not appropriate to evaluate the lawfulness of unilateral secession

according to the legal order against which it is directed."
With respect, this is imprecise. It is entirely appropriate to evaluate the

lawfulness of conduct pursuant to Spanish law if that is the question asked; it's
just that it doesn't answer the question of whether the same conduct violates
international law as well.
"The international Court of Justice found as much when it considered the

declaration of independence of KosovoIt Court determined that the declaration
EJIL:Talk!of Kosovo acting as an organ of the

was not issued by the elected representatives
state from which secession
Blog of was sought
the European (in that
Journal case, the
of International LawProvisional Institutions
of Self-government of Kosovo)."
This is unclear and would bene t from editing. The ICJ did its best to dodge the
implied questions in the advisory opinion, but to assert that conduct that is illegal
under domestic law cannot now be declared as such is to stretch the opinion too
far. A successful secession may make domestic illegality moot in practice, but
unless and until that happens, it's not moot in practice or under domestic law.
Nor would secession necessarily serve as a defence for individual conduct in the
parent state.
"However, it is not clear that the gravity of repression or exclusion is suf ciently
well established as yet to trigger the application of the doctrine."
With respect, it is pretty clear. It's not suf cient. It in no way diminishes the
conduct of Spanish authorities to note it is minimal compared to conduct in, e.g.,
Kosovo. Embracing this standard is a recipe for chaos. It invites mischief. For
veri cation, one could ask those who have died in Eastern Ukraine. I may be
wrong, but it appears the primary complaint until the referendum is that the
national system of taxation and expenditure is too progressive, and that thus on a
simplistic level a comparatively well-off region pays more than it receives. That's
a legitimate subject for national discussion, but it does not amount to an atrocity.
"The lesson of the past therefore may be that it is good to talk." That is exactly
right. Spain should do better. But this is good advice for both sides. I hope that's
managed. But secession isn't talk. It also doesn't necessarily address the rights of
those individuals who want to remain Spanish citizens (according to polling I've
seen so far, the long-standing majority). If international lawyers are to play a
helpful role, perhaps the varieties of federalism, subsidiarity, and internal self-
determination could be further explored. Would that Juan Linz was here today to
assist.
Vitoria says
October 18, 2017
"Since then Catalonia has taken a series of steps including its declaration of
Since then, Catalonia has taken a series of steps, including its declaration of
sovereignty of 2013an (sic) informal public consultation on possible
independence of 2014, the regional EJIL:Talk!
elections of 2015 billed as a virtual
referendum on independence,
Blog of the and nowJournal
European the recent referendum"
of International Law
The author forgets to say that pro-independence forces lost the 2015
"referendum", which is the last "consultation" held in Catalonia that offered all
the required guarantees. Of course, the pro-independence forces never accepted
the result and continued pursuing their agenda by creating state structures "on
behalf of the Catalan people". And now the Spanish government appears as the
bad guy when it tries to take control of the situation in order to enforce a
democratic constitution.
This is just one more example of how a referendum can be a toxic instrument in
the hands of irresponsible politicians. It is also an example of how "external
expert studies" can make things worse when they are not closely familiar with
the context. Yes, the Spanish government has failed to engage in serious dialogue
on the constitutional recognition of Catalonia as a nation –perhaps because a few
years ago only a minority cared about these issues-. But the regional government
has been all but a fair player of this game.
Three cheers for populism, the cancer of the modern world.
Joan-Pau RUBIES says

October 18, 2017
'I may be wrong, but it appears the primary complaint until the referendum is
that the national system of taxation and expenditure is too progressive, and that
thus on a simplistic level a comparatively well-off region pays more than it
receives.'
I believe that you re wrong here, both in the way you describe the scal issue (it
has nothing to do with social and income progressivity, but rather concerns the
system to calculate and implement the transfer of resources between regions
and the central state), and especially in your identi cation of this issue as the
main one. No less important have been repeated attacks on the legislative
capacity of the Catalan Parliament by means of the constitutional court,
including highly sensitive issues about education in Catalan where there was a
consensus in Catalonia but it was disliked and often misrepresented in Madrid
consensus in Catalonia but it was disliked and often misrepresented in Madrid.
And clearly the turning point was the overturning of the new statue by the
constitutional court, an process EJIL:Talk!
plagued with irregularities that called into
question the court's impartiality.
Robin says
October 18, 2017
Thank you for this very interesting post! It represents a fascinating take on the
question of self-determination. At the same time, it is thought provoking, and so I
have some concerns, a few of which follow below.
"This minority position has now been overcome by the International Court of
Justice. In the Kosovo Opinion, the Court con rmed that ‘the principle of
territorial integrity is con ned to the sphere of relations between states.’ [Id.,
para 80.] That is to say, the principle precludes disruption of the territorial
integrity of one state by another, but it does not apply internally, in relation to
populations seeking secession."
This is of course true. But I imagine it can be phrased in more general terms, for
which I believe there is strong support in all sources of international law. In fact
States are obliged to respect the territorial integrity of other states, which I take
to include non-recognition of unilateral actions to enforce secession. Without
either recognition or support (due to the absence of a clear case for self-
determination), calls for self-determination will remain in limbo despite the
presence of effective government, as the example of Somaliland clearly shows,
and possibly also the Kosovo example. Any such support would seemingly violate
the obligation to respect the territorial integrity of the State in question. Perhaps
someone would care to comment on this?
In the Kosovo case, a key point is that the ICJ did not address the question of
whether unilateral secession is lawful, but proceeded to consider the lawfulness
of the declaration (unfortunate according to some of the sepate opinions). This is
crucial to me because the interim framework for Kosovo was quite speci c about
the proceedings on a political settlement of the nal status question (constrained
by the Rambouillet agreement). To my judgment, had the legal issue of actual
secession been determined by the ICJ it would have been much harder to claim
that it did not "violate general international law, Security Council resolution
1244 (1999) th C tit ti lF k"
1244 (1999) or the Constitutional Framework".
Other questions also arise of whether EJIL:Talk!

the cases are comparable, seeing as the
constitutional frameworkBlog seems not toJournal
of the European haveofcovered the
International Lawbasic orders pertaining
to sovereign states. Actual secession would have been tested against Serbia's
claims of sovereignty, and not only against the interim framework, I presume.
In the same case, the Court acknowledged and placed some signi cance on the
Secretary General's reaction to the declaration. The SG had a duty to act if the
declaration was an act "ultra vires". According to the Court, since he remained
silent on the declaration, he did not consider it to be violating the interim
framework. Accordingly it was deemed that he considered it as lying beyond his
jurisdiction–seemingly without making the distinction between "the people" and
their representatives "acting" through the declaration. Certainly the situation
with regard to a sovereign entity (which the interim regime was not) would be
different different–which both the Spanish PM and constitutional court has
indicated. I guess the question is if there is no major difference between an
expression of independence–which a referendum and declaration of
independence is–and actually seceding? In the case of Catalonia, surely voters
did nothing illegal, but the organizers of the vote most likely did.
Finally I would like to ask if it is correct to assume that the implication of your
interpretation means that any people within a de ned territory with state-like
capacity, which acts in unison to declare their wish to gain self-determination, is
acting outside of any constitutional order which may nullify such actions? And
would this then justify recognition of the seceding entity by other states? I may
have missed the point, but I must say I nd it hard to see how these things make
sense in a still State-centric international law.
Pau de Vilchez Moragues says

October 18, 2017
Thank you for this very interesting and informative piece.

Regarding the comment by Jens Iverson, I would only like to point out that the
rst step to "address the rights of those individuals who want to remain Spanish
citizens" would be to authorize a referendum in order to establish, with more
precision and clarity than polls, how does the people in Catalonia feel about
independence, how many would like to remain in Spain, how many do actually
want independence and how many do not want to participate in such a
referendum. Unfortunately, the central EJIL:Talk!

government and the two main Spanish
parties have already rejected the
Blog of the possibility
European ofInternational
Journal of a legal referendum.
Law It is, in short, a
question that cannot be addressed in the current Spanish constitutional order.
Nicolas Boeglin says

October 18, 2017
Dear Professor Weller
Many thanks for these extremely useful re ections on the issue.
There is another report, published in 2017, prepared by european scholars

entitled "Catalonia´s legitimate right to decide. Paths to self determination"
available here:
http://exteriors.gencat.cat/web/.content/00_ACTUALITAT/notes_context/FULL-
REPORT-Catalonias-legitimate-right-to-decide.pdf
The position of European States arguing the absolute respect for territorial
integrity of Spain has to be compared with their position concerning Kosovo.
Concerning Kosovo ICJ advisory opinion, the written arguments presented by

different States are extremely interesting to review (see full list at:
http://www.icj-cij.org/en/case/141) in order to compare their position in 2008-
2009 with regard to Kosovo and now, in 2017, with regard to Catalonia.
As known, Spain (as well as Greece and Roumania, among others) does not
recognize Kosovo, maintaining a consistent position from the legal perspective.
Among many States in favour of Kosovo´s proclamation, the written opinion of

France is interesting to read:
“En d’autres termes, s’il est tout à fait clair qu’il n’existe aucun droit à la sécession
en droit international, il est tout autant établi que celui-ci n’interdit pas la
sécession ni, par voie de conséquence, une proclamation d’indépendance par une
partie de la population d’un Etat” (see point 2.8, p. 38 at: http://www.icj-
cij.org/ les/case-related/141/15608.pdf).
I hope that Serbia´s questions onEJIL:Talk!

Catalonia and Kosovo to be adressed to EU
(announced in media last
BlogOctober 2) will
of the European be answered
Journal soon
of International Law by Brussels.
Sincerely yours
Nicolas Boeglin
Jens Iverson says

October 18, 2017
Prof. Rubiés, that's an informative response, thank you. Your post on the subject
is quite interesting as well. I'm honestly curious with respect to what's motivating
secession. Is it really more cultural than economic? So in your view, if Catalonia
was the poorest region receiving the most aid but still was seen to have
interference in cultural education there would be largely unchanged secessionist
sentiment? Or would it make more of a difference if the economic arrangement
(which it still seems to me has something to do with progressivity) was the same
but there was more cultural/education freedom? In any case, I hope there's no
more violence. A new local election might help clarify issues and encourage new
discussants to step forward.
Miroslav Baos says

October 18, 2017
Thank you very much professor Weller and the team for this timely and useful
contribution. There seems to be a confusion among many participants between
our political preferences and a developed or discernible legal principle. Let us
look a bit deeper in history and the development of the so-called "right" of self-
determination (I hope the quotations marks will not annoy the reader and that
the essence of my contribution will justify their use) in order to discern a pattern
or some sense. The very inception of the concept occurred in a speci c context,
which was the system of mandated territories established by the League of
Nations the UN predecessor. A system, under which the victorious Allied powers
in the wake of the World War I were given mandate to govern the defeated
10/23/2020
g g
Secession and Self-determination in Western Europe: The Case of Catalonia – EJIL: Talk!
powers' possessions in Asia and Africa. According to Hannum the system was
wholly dependent on politics, notEJIL:Talk!on law; in other words no discernible legal

principle or rule emerged. It European
Blog of the was only with
Journal the establishment
of International Law of the United
Nations in the wake of the World War II that a reference was made to an
entitlement of a people to freely determine their destiny and only after the
decolonisation processes started to take place in early 1960s. The Declaration on
the Granting of Independence to Colonial Countries and Peoples, adopted by the
UN General Assembly in 1960, "[s]olemnly proclaimed the necessity of bringing
to a speedy and unconditional end colonialism in all its forms and manifestations"
and declared that "[a]ll peoples have the right to self-determination; by virtue of
that right they freely determine their political status and freely pursue their
economic, social and cultural development." But the same document established
a respect for another, much older and opposing principle of territorial integrity
(uti possidetis - keep what you have!) by determining that: "Any attempt aimed at
the partial or total disruption of the national unity and the territorial integrity of
a country is incompatible with the purposes and principles of the Charter of the
United Nations".
As far as the post-colonial context is concerned one episode in particular
provided an opportunity for at least some kind of clari cation on the "right". In
order to provide the European Community with a legal advice on the legality of
secessions occurring in the former Yugoslavia a commission was created
(Badinter), who, in the shortest possible terms, created a presumption of
statehood for those who declared independence from the former Yugoslavia and
then used it as a principle for denying the same right to units wanting to separate
from the newly created states! (See also M. Craven, 'The European Community
Arbitration Commission on Yugoslavia' (1995) 66 B.Y.B.I.L. p. 333). Legally
speaking, the main problem with the Commission's reasoning is its partial
application of the principle of uti possidetis. It utilised the principle with respect
to an entity that, at the time of giving its opinion, was not a state; but it refused to
recognise the applicability of the principle of uti possidetis regarding the
Yugoslav borders which still had the character of internationally recognised
borders.
The principle of not having any consistent principle was con rmed in the Kosovo
episode, in which a unilateral declaration of independence (declared "illegal" in
the same way as the Catalans'!) was supported by a military action against the
state denying it to the region, even in spite of lack of authorisation by the United
Nations!
So, the principle on the "right" of a people to self-determination seems to have
nothing to do with ful lling any legal conditions or requirements but it is wholly
nothing to do with ful lling any legal conditions or requirements but it is wholly
placed within transparent political considerations.
EJIL:Talk!
Marc Weller says

October 18, 2017
Dear friends and colleagues, many thanks for the comments thus far. Of course, it
is clear that an issue of this kind will elicit a broad variety of responses. I am
looking forward to offering a consolidated answer in a little while.
In the meantime, it has been brought to my attention that the declaration of
independence of 10 October was not only signed by the President acting in his
capacity as elected representative of the people, but also by a majority of
members of the Catalonian parliament, acting in a similar capacity. This could
mean that from the perspective of the Catalonian representatives, no further
action to bring the declaration into force would be required once its suspension
has been ended, in the absence of the prospect of good faith negotiations.
john r morss says

October 19, 2017
I am a little confused over the distinction between 'objective' (so to speak

Montevideanos) criteria and 'subjective' criteria; the latter (popular will and its
manifestation in DI) would seem at least as objective as the putative future
capacity of the Catalan entity to enter into inter-state relations, so long as
adequately representative and transparent referenda are appealed to. Where
subjectivity enters is perhaps in such policy matters as combining/balancing the
outcomes of local (here Catalan) referenda with the outcomes of whole-state
(Spain) referenda or other objective measures of the "will" of the present state's
entire population (its Constitution??). That algorithm is perhaps elusive.
Beh G. says
October 22, 2017
"Hence, it is not appropriate to evaluate the lawfulness of unilateral secession

10/23/2020
, pp p
according to the legal order against which it is directed."
I'm not a legal expert Professor Weller EJIL:Talk!

but I think not only is it appropriate to do
so in this case but it is absolutely essential.
The rati cation of the Spanish Constitution of 1978 by 93% of Catalans formed a
legally binding contract between Catalonia and the rest of Spain that prevents
secession.
Unlike Kosovo, where there were serious breaches in that "contract" along with
major sociopolitical factors that would be considered material changes to that
"contract" the Catalan situation doesn't satisfy either of those two conditions.
In fact, the Catalans are better off and more wealthy today than they were in
1978 and they enjoy more freedoms and autonomy that was granted to them by
the 1978 constitution.
On that note, I think it's extremely important to ask the question of whether
someone, a group or a region can claim the right of self-determination once they
have given up that right and bene ted grossly from doing so.
I reckon that right can only be restored through a constitutional change in Spain
where the other parties to that "contract" (i.e. the people of Spain) willingly
restore Catalonia's right of self-determination.
By the way, I question your interpretation of the referendum numbers. Aside

from the fact that those results were clearly fudged and can not in any way be
viewed as accurate or reliable, the referendum was boycotted by anti-
independence population because of its illegality.
You suggest this boycott is irrelevant because of the opinion on the Bosnia
referendum. In that case even if all of the 1.3 million Serbs had attended the polls
voted no, it wouldn't have changed the results.
The most credible opinion polls prior to the referendum indicated 60% of
Catalans were against independence and the most recent poll after the
referendum suggests 70% of them think regional elections should be held to
resolve the current impasse.
In conclusion, I suggest not only that there is no "manifestation of popular will"

here but that "internal legality" would very much be central to any authoritative
rendering on this situation.
Kind regards, EJIL:Talk!

Beh Blog of the European Journal of International Law
Monica Garcia-Salmones Rovira says

October 22, 2017
Dear Professor Weller,
Many thanks for this thoughtful post. I have learned a lot.
The following is a much repeated piece of information:
"It is the most economically viable region when compared to other parts of
Spain"
But i am afraid that it is not an accurate information, as one can see in this article
from the BBC.
https://www.bbc.co.uk/news/amp/world-europe-41550652
Catalonia is a wonderful country and I wish the best for them. However, coming
from the Basque Country I cannot see how this whole issue can be dealt with in
international law without considering the recent political history of the entire
country - the dramatic period of terrorism and how much Basques & Spaniards
alike, on any side, suffered under the ongoing power struggle. Nor, to my
knowledge did Catalonians ever showed much solidarity with the Basque cause.
Instead, to my knowledge they put obstacles in momentous constitutional and
political events. There must have been reasons for that.
Without being a legal expert in the question, as you obviously are, I can however
af rm that we have been there before (and it was not fun) and that the strict
legal-technical study would bene t from a historical perspective, and why not to
say it, from a little bit of realism both from Catalonians and from external
observers.
Aida Torres Pérez says

October 22, 2017
EJIL:Talk!
Thank you so much Blog for ofsuch a thought
the European Journal of provoking analysis of Catalonia's
International Law
independence from the perspective of international law. I'm afraid I must

respectfully disagree with your interpretation of the Catalan case in light of the
theoretical framework presented. As is claimed, "The positive subjective criteria
come in two guises: rst, there must be an act of will of the population and
second, that will must be enacted through a declaration of independence."
First, was the referendum on October 1st an act of will of the people? Prof.
Weller argues that a valid referendum requires "a free and fair campaign and a
transparent and open balloting process." And argues that "In this instance, any
intimidation came from the side of the Spanish government, including arrests,
raids and other measures against pro-independence campaigners and of cials."
In my opinion, the referendum lacked any of the minimum guarantees for the
results to be valid under the criteria of the Venice Commission: there was no
public electoral register, and as it was announced at 8 o'clock on voting day,
citizens may vote in the polling station of their choice; and authorities were far
from any duty of neutrality and transparency. Also, there was no impartial body
in charge of overseeing the referendum. The (non-impartial) electoral board
appointed by the independentist majority resigned in view of the sanctions that
could have been imposed by the Constitutional Court. Furthermore, the people
serving at the electoral stations (in charge of the election count) had not been
previously appointed, but they were mainly volunteers in favour of
independence. In the end, the referendum was self-organized by the supporters
of one option. The Law on the referendum of self-determination had been passed
by the Catalan parliament less than a month in advance, and had been challenged
by the Spanish government and suspended by the Constitutional Court.
Over the weeks leading up to the referendum, the Spanish government and the
judiciary took action to dismantle the referendum. On October 1st, the police
charges were disgraceful and totally unnecessary. And yet, the police charges
cannot be instrumentalized to legitimize the outcome of the referendum. In
those circumstances, given the lack of minimal guarantees, the referendum was
not a valid instrument to assess the support of independence in the Catalan
society. While the referendum was indeed an act of political protest, I believe the
outcome cannot legitimize the President of the Catalan government to speak in
the name of the people and unilaterally declare independence.
Moreover, Prof. Weller argues that "The Catalonia referendum attracted
participation of some 42 per cent of the electorate. However, Catalonia asserts
10/23/2020
p p p
that an additional large percentage of voters were precluded from participation
due to the forcible closure of voting EJIL:Talk!

stations and other acts of interference by the
central Spanish authorities. Had
Blog of the they Journal
European been ofable to participate,
International Law Catalonia claims,
participation would have been around 57 per cent [...] Given the active
obstruction of the poll by the Spanish central authorities, extending even to
forcible interference in it, any claim that that referendum lacks credibility due to
insuf cient participation rings somewhat hollow." First, I would say that
"Catalonia" does not "claim" or "assert" anything, but whoever the source of the
authors is. Second, it might be that some people decided not to participate in the
referendum because they were afraid, but actually there were many testimonies
of people who initially did not intend to vote, and decided to do so in response to
the police action. Third, even if some polling stations had been closed down by
the police, anyone could vote anywhere. In the end, the referendum did not lack
credibility due to insuf cient participation, but due to insuf cient guarantees. In
those circumstances, the outcome is not at all reliable and cannot be regarded as
an expression of the will of the people. Could you imagine Brexit decided in a
referendum of this sort?
Second, has there been a declaration of independence? I very much agree with
the line of argument developed by Prof. Iverson. I'm not sure either why "it is not
appropriate to evaluate the lawfulness of unilateral secession according to the
legal order against which it is directed". It is not excluded that secession can take
place following the legal order, such as in the would be cases of Québec or
Scotland. I would say that Catalonia is much closer to those cases, than to the
dismantling of the ex-Yugoslavia or the USSR.
A different question would be whether a unilateral declaration of independence
of Catalonia would be lawful according to international law. Following Weller's
argument, we can conclude indeed that Catalonia would not be entitled to
secession under international law. In my opinion, it is clear that Catalonia cannot
invoke the doctrine of remedial secession. Regrettable as the police charges
were, this was (up to now) an isolated event.
Finally, let me say something with regard to the alternative legislation passed by
the Catalan parliament, i.e. the Law on the referendum of self-determination and
the Law on transition and foundational of the Republic. These two laws were
passed by the Catalan Parliament in one single day each (September 6th and 7th),
in breach of the internal regulations of the Catalan Parliament, the demands of
transparency, and the rights of participation of minority groups. They became a
sheer expression of the tyranny of the majority against which Tocqueville warned
us in The Democracy in America.
10/23/2020
y Secession and Self-determination in Western Europe: The Case of Catalonia – EJIL: Talk!
Moreover, the independentists are not even abiding by their own laws. According
to article 4.4 of the Law on the EJIL:Talk!

referendum, the of cial proclamation of
independence corresponds toEuropean
Blog of the the Catalan
Journal ofParliament. On October 10th, in a
International Law
plenary parliamentary session, President Puigdemont assumed the political

mandate deriving from the referendum, and proposed that the Parliament
suspended the effects of the declaration of independence. Nonetheless, the
Parliament neither declared, nor voted anything. After the plenary session, all
deputies pertaining to the secessionist parties met in a different room to sign a
declaration of independence, which lacks any legal effect, and cannot amount to
an of cial political declaration either. This was a private document signed by the
deputies in favour of independence in a deplorable act of patrimonializing the
Parliament for their own bene t. How can any of this be regarded as an act of
self-determination in a democratic society?
In the end, I would agree that "Secession should not be imposed unilaterally, nor
can it be excluded from the outset. Instead both sides are required to negotiate in
good faith about a settlement". The current Spanish government has
conspicuously ignored a legitimate political claim that has, maybe because of that
same reason, gained increasing support in Catalonia. Nonetheless, as
questionable as that position might be, independence cannot be unilaterally
imposed by the secessionist parties upon the Catalan people.
Ignacio de la Rasilla del Moral says

October 23, 2017
Dear Prof. Weller,
Thank you for your interesting post. Considering that this legal opinion is, as you
noted in your disclaimer, based on a report commissioned by a Catalonian
independentist political party, which receives public funding from Spanish tax-
payers, and considering that many members of the current Catalonian
government may face criminal charges for 'embezzlement of public funds',
according to the Spanish national
press:https://elpais.com/ccaa/2017/09/08/catalunya/1504871965_335327.htm
l in relation to recent activities which have been declared illegal by the Spanish
Constitutional Court, is there any risk, in your opinion, as an associate tenant of
the Doughty Street Chambers, which has made public a press-release regarding
your authored legal opinion
EJIL:Talk!
http://www.doughtystreet.co.uk/news/article/associate-tenants-marc-weller-
and-john-dugard-prepare-a-legal-opinion-on-ca, that Law
Blog of the European Journal of International the Spanish authorities
might, in due time, deem proper to investigate, as part of their broader
investigation on the use of public funds in relation to the events in Catalonia,
whether the costs and/or legal fees associated to the preparation of the 'Legal
Opinion by an International Commission of Legal Experts' may be, in any manner,
be deemed to constitute 'embezzlement of public funds', otherwise, in Spanish
'malversacion de fondos publicos' on the part of 'Ezquerra Republicana de
Cataluna'?.
As a scholar, who is also trained in Spanish law, I think that the scenario just
described is, nonetheless, a highly unlikely one under Spanish law.
Thank you
Mariano J. Aznar says

October 24, 2017
Dear Marc,
Under my point of view, most of the factual assumptions in your post --and,
therefore, some of their legal consequences-- are, unfortunately, not correct.
However, I will focus my answer only in one aspect around the legal threshold of
the “manifestation of popular will” allegedly held in Catalonia in last 1st October
plebiscite.
Perhaps in general international law, legal requirements for a valid referendum
may be “only emerging”. But not in Western Europe where the Code of Good
Practice on Referendums adopted by the Council for Democratic Elections and
the Venice Commission at its 70th plenary session (CoE Doc. CDL-AD(2007)008)
are fully accepted as current law on referenda in Europe. In a solemn declaration
dated 13 May 2004 (CoE Doc. CM(2004)83 nal), the Committee of Ministers of
the Council of Europe recognised “the importance of the Code of Good Practice
in Electoral Matters, which re ects the principles of Europe's electoral heritage,
as a reference document for the Council of Europe in this area, and as a basis for
possible further development of the legal framework of democratic elections in
European countries” (I underline). The basic principles may be summarised in
universal, equal, free and secret suffrage, including some basic components
which were plainly ignored in the 1st October plebiscite:
- there was a total absence of “neutral EJIL:Talk!

attitude by administrative authorities”
since the regional government and
Blog of the European theof International
Journal public mass-media
Law was openly
campaigning in favour of the independence, without a “balanced coverage”, and
the campaign and the funding of the participant movements were non
“transparent” (point I.2.2 of the Code);
- on the contrary, it was presided by an “excessive, one-sided campaigning” and
“the use of public funds by the authorities for campaigning purposes [were not]
prohibited” (point I.3.1(b) of the Code);
- although the question put to the vote was clear and not misleading
(“independece: yes or no”), the public campaign suggested the answer and
electors were not informed of the effects of the referendum (they were said that
the independence would be politically smooth, with no economic consequences,
that Catalonia would be automatically recognised as a new State by the
international community and that it would remain as a State member of the EU,
the UN or NATO, among other things), against what it is said in point I.3.1(c) and
(d) of the Code since the regional government did not provide the voters with
“objective information”, including an “explanatory report” which had to be sent
“directly to citizens and be received suf ciently far in advance of the vote” and
giving “a balanced presentation not only of the viewpoint of the executive and
legislative authorities or persons sharing their viewpoint but also of the opposing
one.”
- The votes were not casted in of cial polling stations under independent
observers and the counting was not transparent, the police action not being an
excuse for violating “the right to accurate establishment of the result by the body
responsible for organising the referendum, in a transparent manner, and formal
publication in the of cial gazette” (point I.3.2(b) of the Code). On this point, it
must be reminded that there were uncontrolled votes across the region --n 149
of the 948 municipalities of Catalonia there were more voters than census!--
where people could vote several times in different polling stations thus avoiding
the police action;
- The plebiscite was not organised by an impartial body as requested in point
II.3.1 of the Code: it was not permanent, and “political parties or supporters and
opponents of the proposal put to the vote [were not] equally represented on
[the] electoral commissions”, neither were “able to observe the work of the
impartial body”. The Electoral Commission created by a law suspended by the
Constitutional Court was composed by members directly nominated by the
regional government and resigned a few days before the voting day.
- Last but not least the organisation of the plebiscite also ignored a pivotal
Last, but not least, the organisation of the plebiscite also ignored a pivotal
principle of the Code: that any referendum “must comply with the legal system as
a whole, and especially the procedural EJIL:Talk!
rules. In particular, referendums cannot be
held if the ConstitutionBlog
or of
a the
statute in Journal
European conformity with the
of International Law Constitution does not
provide for them, for example where the text submitted to a referendum is a
matter for Parliament’s exclusive jurisdiction” (point III.1 of the Code); and
“[t]exts submitted to a referendum must comply with all superior law (principle of
the hierarchy of norms). They must not be contrary to international law or to the
Council of Europe’s statutory principles (democracy, human rights and the rule of
law).” (point III.3 of the Code) It would be humorous if not so serious: the
plebiscite did not even respect its own particular ad hoc legislation enacted by
the regional parliament on the 6 September 2017!
No neutral observer could deny these circumstances, not even the “international
observers” appointed by the regional govern who were not able to certify the
validity of the plebiscite. These are the facts.
Maria-Teresa Gil-Bazo says

October 24, 2017
I have read with interest Professor Weller’s piece in relation to Catalonian

Secession. I note that this piece was drafted by the author together with other
colleagues entitled “The Will of the People and Statehood”, a study commissioned
(for payment) by one of the several parties currently in a coalition government in
Catalonia (ERC).
For a piece which grounds its analysis on “the will of the people” and states that
one of the criteria for statehood is that ‘there must be an act of will of the
population’, it is puzzling then to read that ‘it is not appropriate to evaluate the
lawfulness of unilateral secession according to the legal order against which it is
directed.’
The points below do not intend to contribute to any analysis of secession in

international law, but rather to clarify the facts that underpin the analysis of
secession in the case of Catalonia.
The will of the people
The Spanish Constitution is not a pamphlet or a simple act of parliament which

can be disregarded when it suits partisan agendas Like every constitution it
can be disregarded when it suits partisan agendas. Like every constitution, it
seeks to establish a framework for the peaceful and orderly cohabitation of the
People. It is therefore essential that EJIL:Talk!
the rules of the game be respected, including
by amending them to reBlogect a new
of the understanding
European of theLaw
Journal of International political community, and
this must be done respecting the will of the people. The Spanish Constitution is
certainly not a top-down imposition of a foreign legislator on the Catalonian
people. The Spanish Constitution is in fact the utmost expression of the will of
the people. Indeed, with a 67.9% turnout in the 1978 referendum which
approved the Spanish Constitution (above the 67.1% average), 90.5% of the
Catalonian people voted in favour of the Spanish Constitution, above the 87.9%
of favourable results for the country as a whole and –interestingly- above the
86.1% endorsement which it received in Madrid. For the avoidance of doubt, of
the 17 Autonomous Communities and two Autonomous Cities that make up
Spain, the Spanish Constitution obtained the fourth highest approval by the
Catalonian people. The break-down for Autonomous Communities is published
in different places, for instance in the website of the Barcelona City Council:
http://www.bcn.cat/estadistica/castella/dades/telec/ref/ref78/r22.htm. This
endorsement of the Catalonian people to the political community and to the
rules that apply is no surprise for the well-informed observer, given that
Catalonian nationalist leaders played a crucial leadership role in the design of
Spain’s decentralised State which the Constitution sought to create. To sum up,
any analysis built on the premise that the Spanish Constitution constitutes a legal
order “alien” to the Catalonian people is awed. Therefore, any new expressions
of the will of the people do not exist in a legal vacuum, but rather against the will
already expressed.
In the 2015 Catalonian elections (the last time the Catalonian people lawfully
expressed their will) and with a 68% turnout (in one of the highest participation
levels Catalonia has seen), the will of the people gave 47.7% of votes to the pro-
independence parties (which meant a loss of votes and seats in parliament in
relation to the previous regional elections) and 51.7% to parties which oppose
independence. Despite obtaining a minority of votes, the electoral system
resulted in pro-independence parties obtaining the majority of seats in the
Catalonian Parliament (72 out of 135). It is dif cult to see how the will of the
minority of electors quali es as “the will of the people” of suf cient legitimacy to
overthrow the will of the Catalonian people so overwhelmingly expressed in the
1978 referendum. As to whether the results of the referendum of independence
held on 1st October are to be given any credit, speculation as to what the results
would have been is surely not a serious approach to decision-making of such
enormous signi cance for the future of the Catalonian people.
10/23/2020
g p p
More recently, calls have been made EJIL:Talk!

by the Spanish government, opposition
political parties, other Blog
regions in Spain
of the European (including
Journal the Basque
of International Law Government) and
business associations (with all companies with presence in the stock market
having already moved their headquarters to other Spanish regions) for the
Catalonian government to call elections to the Catalonian parliament, thus
allowing for the will of the Catalonian people to be expressed within the
currently established legal order. Despite the continuous rhetoric of the
Catalonian government about democracy, it has so far refused to call on electors
as a whole (rather than those in favour of secession) to express their will. It is
worth noting that commentators agree that a call for Catalonian elections would
stop the application of article 155 of the Spanish Constitution (a provision
imported from the German Constitution), whose purpose is to restore legality.
Negotiations
A lot has been said about the need to enter into negotiations, but virtually
nothing on what exactly is to be negotiated. Professor Weller notes that ‘Spain
has refused’ the calls for negotiation issued by the Catalonian government. The
Spanish Government argues otherwise. More recently, it would appear that the
offer to the Catalonian Government to bring the discussion into the Spanish
Parliament, where the sovereign will of the People lies (and whose upper
chamber represents territorial interests) was rejected by the Catalonian
government, which may have requested negotiations to be between
governments alone. Media reports say that the Catalonian government may be
reconsidering this position and might bring its arguments to the debate
scheduled in Senate later this week.
Furthermore, nothing prevents the reform of the Spanish Constitution, including

its reform to recognise a right to secession of autonomous communities. Such
reform needs of course to be done within the established framework which, as
noted above, is the one endorsed by the Catalonian people in 1978. The
Catalonian government has so far not undertaken any steps in this direction.
Democracy and the rule of law
Professor Weller expresses surprise at the Spanish Constitutional Court’s

enforcement powers, when he notes that ‘[s]omewhat oddly, it has recently
started to act as enforcement agent of its decisions’. Yes, courts are annoying like
that. They insist in overseeing the executive power and on ensuring that the
legally binding nature of its decisions be actually enforced. This is particularly the
case of the highest judicial instancesEJIL:Talk!

in democratic States based on the rule of
law. We saw anotherBlog example of this
of the European irritating
Journal judicial
of International Law attitude when the
Supreme Court of England and Wales decided to interfere with British
Government plans not to consult with Parliament (where sovereign will lies)
about a matter of such constitutional relevance as the Brexit process.
Luis Hinojosa says

October 24, 2017
I would like to begin by thanking Prof Wellers’ sincerity when he recognises that
his post is a party report ‘commissioned’ by the main secessionist party in
Catalonia. Not surprisingly, his analysis subtlety paves the way towards
independence.
From my point of view, the rst aw in this post is its apparent straightforward
acceptance of the unreliable data provided by the Catalan regional government.
In the so-called ‘referendum’ of 1 October 2017 people could vote several times
in different polling stations (following the principle vote early, vote often) and
there is evidence that some people did so indeed. As regards the cleanness of the
counting or the absence of rigged election, the standards were unacceptable for
a western democracy (e.g. in some cases, the voting took place in private homes
of secessionist leaders without any external independent supervision). Before 1
October (and therefore before any riot police intervention), the Venice
Commission formally noti ed the regional Catalan government that the
referendum that they had called did not respect the Code of Good Practice on
Referendums adopted by the Council for Democratic Elections in Venice (2006)
and the Venice Commission at its 70th plenary session (16-17 March 2007) (CoE
Doc. CDL-AD(2007)008). Since under such circumstances, any assessment of the
results is purely speculative, let us look for reliable non-disputed facts that can
give evidence of Catalan popular will.
The secessionist Catalan government already organized an illegal referendum
(its celebration was prohibited by the Spanish Constitutional Court) on
independence in 2014. In a very criticized decision, the police did not intervene
to enforce the Constitutional Court judgment. According to the Catalan
government only 33% of the registered voters participated and 80% of them
voted for independence (Catalan parties against independence asked their
voters not to participate) After more than 70% of the Catalan population turned
voters not to participate). After more than 70% of the Catalan population turned
their backs on the regional government’s proposal for independence, the latter
decided to call for a new (‘binding’) EJIL:Talk!
referendum in the form of regional elections
(in 2015). These wereBloglegal and
of the standardized
European elections
Journal of International Lawwith a participation of
77.45% of the census. The result was 48% of the votes for parties favouring
independence and 51% for parties against independence. In spite of this, due to
the electoral rules (you need more votes to obtain a seat in urban areas), the
secessionist parties achieved a tiny majority of MPs. This small majority in the
Catalan Parliament, which is even insuf cient to reform the Catalan Statute of
Autonomy, has been used to call for a third (again illegal) referendum in three
years (October 2017referendum), to pass laws in blatant violation of the Spanish
Constitution and the Catalan Statute of Autonomy and to declare the
independence of Catalonia (although the effects of the declaration were
‘provisionally suspended’ immediately after by the president of the Catalan
government). In the most recent elections to the Spanish Parliament (2016), that
again complied with all the standards established by the Council of Europe and
namely the Venice Commission, the results (with a participation of 65.61% of the
Catalan census) show that 64.92% of the Catalans voted in favour of parties that
are against independence and 32.09% for secessionist parties. Under such
circumstances, giving any credibility to the Catalan regional government when
they say that 90% of the Catalans voted in favour of independence in the so-
called referendum of 1 October is not only naïve, it is a contribution to a clear
manipulation of Catalans’ will.
My second point of disagreement with this post concerns your weakening of one
of the key requisites of statehood: an effective independent government. When
the ICJ found that the tribes and nomad groups that inhabited the Western
Sahara region could not be considered a state because they lacked an
independent and effective government, it was establishing a factual situation
(ICJ Reports, Western Sahara, 1975, 63). The ICJ did not mean that these people
were potentially incapable of governing themselves if they were given the chance
to do it. Thus this requisite of statehood identi es a material situation (principle
of effectiveness) and not just a theoretical capacity for self-government, as any
piece of land inhabited by human beings would have such a potential capacity
(and this requisite would be meaningless). And the de facto situation is that there
is an independent and effective government in Catalonia: the Spanish one, as
anyone crossing its borders or paying taxes in that territory can certify. The
leader of the governing party in Catalonia, Artur Mas, recognised in an interview
with the Financial Times on 5 October 2017 that a Catalan State could not be
created right away because they lacked the main elements to make it work (he
mentioned the effective control of the territory a tax administration and a
mentioned the effective control of the territory, a tax administration and a
judicial system). But all these facts do not prevent your conclusion that ‘Catalonia
EJIL:Talk!
is, at least potentially, capable of statehood’ . Of course, and who is not?
A third criticism of yourBlog
analysis is its Journal
of the European argument on the Law
of International irrelevance of the blatant
violation of Spanish and Catalan constitutional law when evaluating the Catalan
government’s behaviour as regards international law. The rule of law is an
indispensable component of democracy in Western Europe and there is positive
international law protecting it. The Council of Europe and the European Union
envisage a whole set of sanctions for governments denying basic rights to the
opposition parties, disobeying the courts and organising fraudulent referendums.
Any comparison with the situation in Kosovo is inappropriate and untenable.
Spain is a fully- edged democracy that respects human rights, guarantees an
ample political autonomy to its regions as a de facto federal State and respects
the separation of powers. The Member States and institutions of the EU have
insisted on the respect of the rule of law and systematically declared that they
will not recognize the independence of Catalonia under the present
circumstances. This shows how relevant respect for the rule of law is for any
international legal analysis of the Catalan question.
The image of the riot police closing polling stations by the use of force is appalling
even if it was done following a judge order. However, this regrettable situation
does not allow speaking of widespread ‘increasing human rights violations
committed by the central government over the past weeks’. Catalan culture and
language have never been so well protected since the creation of Spain as in the
last 40 years. Secessionist rallies and parties are free. Unfortunately, at the time
of writing, the Catalan secessionist leaders continue refusing to seat around a
table to discuss a reform of the Spanish Constitution that could meet some of
their demands. They only accept to negotiate the terms of secession. And at
some point even democratic States have to use the legal instruments at their
disposal to implement the rule of law and to avoid chaos and economic
uncertainty.
Let me nish by saying that I cannot agree more with your last phrase: The lesson
of the past therefore may be that it is good to talk.
alessandro spinillo says

October 24, 2017
Prof. Weller and his team have delivered a legal opinion to the highest standards
of quality But Prof Weller is also to be commanded on his honesty for having
of quality. But Prof. Weller is also to be commanded on his honesty for having
disclosed that his opinion was commissioned by one of the parties to the dispute.
I'm an international arbitrator and EJIL:Talk!
used to deal with and recognize expert
opinions produced at theBlogparties' request.
of the European My
Journal humble advice
of International Law for readers then: to
focus on what Prof. Weller did not say rather than on what he said.
Jaume López says

October 24, 2017
In response to Maria-Teresa Gil-Bazo:

In the 2015 elections to the Catalan Parliament (the last ones):
The percentage of votes to pro-independence parties was: 48%

The percentage of votes to anti-independence parties was: 42%
The percentage of votes to pro-agreed referendum parties without a public
position on the issue of independence was: 10%
The turn-out percentage was: 75%
Julio Carabaña says

November 16, 2017
I know it is dif cult, but I will try to win the competition to discover which of the
many aws of prof. Weller piece is the main one. I would say that it is the use of
the word 'Catalonia' as the name of a sovereign demos, which it is not and never
has been. By doing so, he begs the whole question, assuming from the start what
is being discussed.
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Secession and Self-Determination in Western Europe - The Case of Catalonia - EJIL - Talk!

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10/23/2020 Secession and Self-determination in Western Europe: The Case of Catalonia – EJIL: Talk!

October 18, 2017

Secession and Self-determination in

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This presentation is based in part on the Legal Opinion by an

This contribution assesses the claim to statehood of Catalonia,

The criteria for statehood;

Objective criteria of Statehood

Negative subjective criterion

In addition to the classical, objective criteria, there are negative and

First positive subjective criterion: A manifestation of popular will

Any change in the social contract of a political community as dramatic

The international legal requirements for a valid referendum are only

It has recently been asked whether a referendum should take place

In some instances, a transition agreement provided for a minimum

Given the active obstruction of the poll by the Spanish central

Second positive criterion: Declaration of Independence

The nature of the declaration of independence, signed by the President

A criterion of internal legality?

Spain has argued that the actions EJIL:Talk!

The international Court of Justice found as much when it considered

Capacity to Enter into Foreign Relations and Recognition

It is broadly accepted that the existence of a state is a matter of fact,

In the past, it was sometimes argued that unilateral independence

It is clear that there is a strong policy preference of states for

In cases of privileged secession, international law positively supports

The immense power of the doctrine of colonial self-determination is

Catalonia can also not rely, at least directly, on the doctrine of

Catalonia will undoubtedly point to the increasing human rights

Self-determination in Democratic Societies

This does however not mean that self-determination as a legal

The highly nuanced ruling of the Canadian Supreme Court in the

The mechanism to ensure that a seceding entity respects the rights of

In this instance, Catalonia can claim to have embraced alternatives to

Since then, Catalonia has taken a series of steps, including its

Catalonia points to the fact that it has offered negotiations throughout.

The lesson of the past therefore may be that it is good to talk.

Democratic Statehood in A Footnote on Secession Democratic Statehood in

Self-Determination States and Statehood

Catalonia referendum secession

Comments for this post are closed

Jens Iverson says

"Hence, it is not appropriate to evaluate the lawfulness of unilateral secession

With respect, this is imprecise. It is entirely appropriate to evaluate the

"The international Court of Justice found as much when it considered the

declaration of independence of KosovoIt Court determined that the declaration

EJIL:Talk!of Kosovo acting as an organ of the

Three cheers for populism, the cancer of the modern world.

Joan-Pau RUBIES says

1244 (1999) or the Constitutional Framework".

Other questions also arise of whether EJIL:Talk!

Pau de Vilchez Moragues says

Thank you for this very interesting and informative piece.

want independence and how many do not want to participate in such a

referendum. Unfortunately, the central EJIL:Talk!

Nicolas Boeglin says

Dear Professor Weller

Many thanks for these extremely useful re ections on the issue.

There is another report, published in 2017, prepared by european scholars

Concerning Kosovo ICJ advisory opinion, the written arguments presented by

Among many States in favour of Kosovo´s proclamation, the written opinion of

I hope that Serbia´s questions onEJIL:Talk!