Catalonia and the international legal order
In a referendum that the Spanish government has rejected as illegal, Catalans voted —or so it seems—to graduate from the status of an autonomous community to a sovereign state. This has stirred a hornet’s nest, but it is clearly not Spain’s problem alone. The world is watching closely. The UK that is seemingly is still in a stupor after what now seems to have been an inebriated vote to leave the EU is deciphering the signals. The EU, for its part, has neither endorsed nor denounced, but is clearly not happy about the prospects of unions breaking up. Brexit, after all, remains a bitter pill to swallow—and the EU is determined to make the swallowing as bitter for the UK as well!
The concept of the international legal order that the Catalonia “si” carries to the fore is the provocative but still ambiguous “right to self-determination.” That what was Barcelona celebrated: the right of the Catalans to determine their future after severing the umbilical cord with España, la madre. But while international law clearly upholds the right to self-determination, it does not link this—in fact, makes every effort to distance it—from the right to secede. But what Catalonia voted for in exercising its right to self-determination was secession from Spain, and that is what keeps the applause muffled, if any is even heard at all!
As European elites lost their grip over their colonies, “the right to self-determination” gained recognition until it found its way to key international accords and became part of the corpus of the law of the United Nations. But clearly, what it referred to was the right of colonized peoples to determine their future by being rid of the yoke of colonialism. It transformed “colony” from being a characterization of subjugation and submission to one of entitlement and defensible claim. Because peoples had the right to self-determination, colonizing masters keeping nations under their vassalage became violators of a basic right.
As new sovereignties emerged while political tectonics sectored the world into blocs and hegemony took over where once there were empires, the right to self-determination took on a new meaning. It was the right to be left free of the smothering embrace of spheres of power and of influence. Then, not only political but economic and cultural concerns became concerns of the right to self-determination.
The break-up of the USSR was expected: It was a forcible construct held together only by the force of an ideology that had tapped might military force. But it is the Yugoslavia experience that gives the world pause in the matter of supporting secessions. It remains ambivalent in its result — and in the present conglomeration of new states (or restored states) with ever-shifting frontiers, there seems to be no clear advantage gained from the former state of affairs.
It seems to be accepted doctrine in international law that “the right to secede” has its relevant context only in situations of the systematic violation of the fundamental rights or the continued marginalization of an ethnic or racial minority. Then, it is an appeal more to international morality than an entitlement under the law.
The post-modern world has a characteristic tolerance, liking even for pluralism, and therefore a multi-ethnic, multi-religious state should not be too much of an issue these days. But contradictions do persist: for while there are very clear movements at trans-national and supra-national unions, communities and organizations (and the rising influence these have in international affairs and their power to generate international law), there also seems to be a retreat to that form of “tribalism” that seems to offer some protection from what can be an overwhelming and daunting form of “globalization” as totalization.
The Catalonian experience best exemplifies this ambiguity for while, on the one hand, there was exuberance in Barcelona over what the Catalans undoubtedly consider a triumph, it is either limp applause or dissent sotto voce that is heard from the rest of the world.