Person holding Catalan blue-starred independence flag at 2012 independence rally

Independence Referendums in Catalonia and Crimea: understanding the democratic right of secession in international law?

Prof Steven Wheatley

The Catalonia regional government has signalled its intention to go ahead with a vote on independence on 9 November despite the opposition of the central government in Madrid. The vote has been modified in light of restrictions imposed by the Spanish courts, and will now be organised by volunteers, without any formal electoral roll. The vote in Catalonia follows the referendum in Scotland (where the population voted ‘No’ to independence) and the hastily arranged and badly organized referendums in the Ukrainian regions of Donetsk or Luhansk (‘Yes’ to independence or greater autonomy – the question on the ballot is unclear) and Ukrainian region of Crimea (‘Yes’ to becoming a federal subject within the Russian Federation).

 The mainstream international law position is that a positive vote for independence by one part of the population of a State does not provide a right to independence. It is for the central government of the State to decide how to respond to the vote. This position ignores however the ethical turn in international law, which requires that a State governs in the interests of all its people – and it is for the people to decide whether this is the case, or not.

 This then raises the possibility of one part of the population rejecting the authority of the central government and asserting a peaceful right of democratic secession, which is triggered by the decision of a group to leave the State. Critics of this argument point to the practical difficulties of accommodating hundreds, if not thousands, of ‘micro-States’ in the international community – although there is no evidence that this is a realistic possibility. They also point to the dangers to peace and security; the possibility of unjust terms of separation (where the separatist territory is wealthier or has more natural resources); and the unpredictable and possibly harmful consequences of establishing a precedent for democratic secession.

Whilst it would be naïve not to recognize the potential dangers to peace and human security in accepting a democratic right of secession – and likewise in the repression of separatist movements – the burden of the case must be on those arguing against a democratic right of secession. The consequences of not accepting such a right is that we force populations to live under regimes that make no attempt (in the eyes of the population) to government in their interests. Given the absence of compelling arguments to the contrary; the emergence of a significant body of human rights law; and recognition by the international community that all peoples have the right to self-determination, we must accept the logic of a democratic right of secession.

 The argument proceeds in three steps:

First, the authority of the territorial State can be ‘removed’ by way of an independence referendum held in conditions of considered, open and free democratic debate.

Second, a positive vote in the independence referendum can be taken as expressing the desire of a majority of the population of the territory to establish a new State. This new political entity must not only demonstrate that it has the support of a majority of the population of the relevant territorial group, but also that it can be accepted by all those that are to be subjected to its regulatory directives (hence the importance of minority guarantees when new States are established).

 A positive vote for independence signals the rejection of the authority of the State by one part of the population, and the determination to establish a new State. That population – or ‘people’ – has an international law right to political self-determination now understood as a presumptive claim to statehood.

 The international law obligation of the State is engage with the separatist territory, in a meaningful way, in order to facilitate its right to political self-determination, understood as sovereign independence, or some other status acceptable to a majority of the population.

 The right of a people that has voted for independence is the right to a process leading to the establishment of a sovereign and independent State. It is not a right to statehood. A new ‘State’ must be able to exercise exclusive governmental control of the territory and this is unlikely where the territorial State refuses to accept that it no longer ‘governs’ the territory.

Where the territorial State rejects the possibility of independence or imposes unreasonable conditions or restrictions on the establishment of sovereign independence, it is, however, in breach of its international law obligation to engage in good faith with the separatist entity. This will allow other States to introduce non-forcible measures ( ‘sanctions’) in support of the establishment of the independence of the territory.

Had Scotland voted for independence, it would not seem implausible to argue that the people of Scotland would enjoy a right to statehood in the sense that the United Kingdom government would have to enter negotiations with a shared understanding that the outcome would be the separation of Scotland from the remainder of the United Kingdom.

The differences between the referendums in Scotland and Catalonia are (1) that the central government in Madrid does not support the holding of the referendum; (2) the central government (unlike the United Kingdom government) has not promised to abide by the outcome of the referendum (denying the possibility of ‘promissory secession’); and (3) the proposed referendum in Catalonia (which will not rely on a formal electoral roll) is unlikely to meet international standards on referendums.

An application of the model outlined here would also recognize the possibility of democratic secessions for the populations (‘peoples’) of Crimea, Donetsk and Luhansk. It would though not accept the claim to independence and/or integration with the Russian Federation in the particular circumstances – not because those populations do not have a right to self-determination or must subject themselves to the authority of the Ukrainian State, but as a consequence of the failure of the authorities and the populations to engage in reasoned, democratic deliberations on questions of separation or greater autonomy within Ukraine, or even the desirability or otherwise of the constitutional settlement in Ukraine.

Simply put: the situation in the Crimea, Donetsk or Luhansk regions cannot be understood as an example of democratic secession, as the only force permitted in the context of the democratic right of secession is the force of the better argument – and that is certainly not the case here.

Steven Wheatley is Professor of International Law at the University of Lancaster. He has written widely on the rights of minorities and peoples and is the author of Democracy, Minorities and International Law (CUP, 2005). A longer version of the arguments here can be found in Steven Wheatley, ‘Modelling Democratic Secession in International Law’ in Stephen Tierney (ed.), Nationalism and Globalisation: New Settings, New Challenges (Oxford: Hart, forthcoming). Available at SSRN: ssrn.com/abstract=2511216.

You can find out more about Steven’s research at http://www.lancaster.ac.uk/fass/law/profiles/steven-wheatley

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