Stephen McCourt raises salient points on secession and self determination in the context of the desire for Catalonian independence.
The present state of play in Catalonia deserves close scrutiny by activists, academics and others interested in the application of self-determination in the post-colonial landscape. Speaking to separatist activists in that jurisdiction it is clear they are moving onto a unilateral path as the trial of October 2017 IndyRef leaders concludes. Activists are demonstrating clearly that if the Spanish Supreme Court finds them guilty – while not certain, but extremely likely – they will influence the Catalan parliament to revive a unilateral declaration of independence (UDI). But, then what?
Assessing this potential path is a prerequisite to embarking on it. Although the Supreme Court trial is set to deliver a verdict between August-October, it is paramount that separatist activists have considered the difficult political & legal terrain that follows a UDI. Despite evaluation anchored in romanticism, it is not a straight-forward process & certainly won’t be for Catalonia. That particular state is facing down a powerful hegemon that is prepared to sacrifice human rights in order to retain its ‘national’ assets. While this particular piece is specific to Catalonia, much of the content will be applicable in Euskadi, Lombardy, Scotland, Ireland & other places where self-determination is back in vogue.
Self-determination. Does it apply?
Firstly, it is worth considering the difficult ground upon which the ‘right to self-determination' is based. That right is distinguishable between its internal & external elements. Internal being the exercise of political autonomy within an overarching state structure & external - the separation of a sub-state unit from its ‘parent state’. Both have been exercised in different contexts. The ‘right’ is fraught with difficulties in contemporary times as international legal practitioners, state practice & academics more often than not only apply external self-determination to situations of ‘decolonisation or alien subjugation’ instead relying on the internal element to satisfy international legal requirements.
How the right is defined, or not defined, or applied or where it is applicable is a major source of contest in the international legal system, but that need not matter. If Catalonia were to simply ignore the domestic & international legal constraints placed upon it & issue a UDI, its independent statehood or self-determination would become Fait Accompli – in international legal terms, an accomplished fact. In 2010 giving its Advisory Opinion on Kosovo, the International Court of Justice ruled that UDIs did not violate international law. While international law does not positively permit that path, it does not prohibit it, treating it as an accomplished fact – Fait Accompli.
When a UDI is issued & implemented, the issuing territory steps outside the constitutional legal order. The arena it then finds itself in jumps between international law & international relations. This is where international legal & geopolitical considerations overlap. The seceding sub-state entity now has to contend with state recognition. Unfortunately, difficulties follow. On paper, without state recognition the seceding entity can’t attain a viable statehood. It is then easily absorbed back into its ‘parent state’ as it lacks the capacity to function or exercise statehood – particularly in the areas of travel & trade. Although not legally binding, the principles laid down at the Montevideo Convention 1933 are used as a guide by states when recognising the legitimacy of other states.
However, recognition & its relation to expressing statehood is more nuanced than this. There are a number of states in Europe that issued UDIs but failed to achieve state recognition to complete their statehood. They are referred to in the international arena as ‘De Facto States’ - they have achieved the basic functions of statehood, but hold no membership of international bodies like the UN or EU due to their unilateral approach to independence. This approach, which did not receive consent from the ‘parent states’ continues to receive uniform opposition from other states. There are also states that implemented a unilateral approach & achieved external recognition. The three most relevant examples to the Catalan situation, I believe, are that of Abkhazia, South Ossetia & Kosovo. I will explain how their situations highlight the nuances in recognition. It would require too much space to give a history of all three, so I will focus on their path to independence.
Firstly, Abkhazia - a territory previously part of Georgia declared independence after the Abkhazia-Georgia War in the early 90s – adopted its own constitution in 1994. Although, Georgia continues to consider Abkhazia as part of its territory, backed by the UN who passed a resolution to this effect in 2008. After this, Russia recognised Abkhazia as a sovereign entity & began to provide significant financial & military aid to the territory. In the aftermath of the separation, it received very little state recognition – limiting the government’s ability to exercise economic sovereignty. Although, it has since achieved recognition from Syria, Nicaragua, Venezuela & Nauru.
South Ossetia followed a similar trajectory to Abkhazia. It too declared independence after a war with Georgia in the early 90s. It was recognised by Russia in 2008 & began receiving significant aid. This self-proclaimed republic, like Abkhazia, received very little state recognition in the immediate aftermath, but has since achieved it from Syria, Nicaragua, Venezuela & Nauru.
Due to the lack of recognition & inability to subscribe to membership of international bodies, both territories were deemed De Facto States. Although both De Facto States followed a similar path toward achieving that status, their current situations are slightly different. Although they have a powerful relationship with Russia which has effectively allowed them to survive as autonomous units, the ways in which Russia governs their relationships are different. For example, Abkhazia, has its own economy – albeit heavily subsidised by the Russian government. South Ossetia does not, its economy was integrated into the Russian economy with the ‘Alliance & Integration Treaty’ in 2015. Both states are reliant on Russia as a guarantor of their security & economic maintenance. Russia is the contemporary barrier between the two De Facto States & Georgia. The latter has expressed its resolve to subsume the former back into its borders.
However, it is worth pointing out some of the discrepancies with state recognition, which moves it from black & white into a greyer area. The EU doesn’t recognise the sovereignty of Abkhazia or South Ossetia, stating that it would uphold & respect the territorial integrity of Georgia, but on a practical level it wishes to extend the EU’s influence into the breakaway entities, creating the ‘Non-Recognition & Engagement Programme’ (NREP) - which provides some aid. This programme opens significant political & legal space between Abkhazia/South Ossetia & the EU, but allows the supranational organisation to continue its policy of non-recognition. Further to this, Turkey to date has yet to recognise Abkhazia as a self-determining state, but is now the entity’s second biggest trader. Germany also engages in some trade, but Venezuela who officially recognise Abkhazia has yet to produce a trade deal.
Further difficulties arise in travel. Due to the non or partial recognition of Abkhazia & South Ossetia, the passports issued to citizens by their respective governments have no legal status among most world nations. Citizens from both can only travel to the small number of states that currently recognise them. To travel further, they have to accept Russian citizenship & apply for a Russian passport. There are obvious contradictions here in pursuing independence, but permitting individuals to pursue the citizenship of a different country, albeit for practical reasons.
It is easy to point out the difficult cases or those who struggled to assert their independence, however there are also cases of successful UDIs, where the issuing territory gained full independence & statehood. Space must be made for those situations also as separatists make strategic considerations. Kosovo may be the most relevant, being the most recent. After the dissolution of Yugoslavia, Kosovo found itself as a territory contained within Serbia, although making the case for its own separation. After a bloody war & lengthy UN administration, the Assembly of Kosovo issued a UDI in February 2008. 52% of UN nations & 83% of EU member-states gave their recognition to an independent Kosovo. Coming from a very similar background to South Ossetia & Abkhazia – a post-Soviet territory seeking independence for its peoples – the question must be asked, why Kosovo & not Abkhazia or South Ossetia?
Although it would be very difficult to analyse the reasons of recognition for each state, one issue is often cited by those who recognised & another one is cited by the academic community. Firstly, states that recognised Kosovo have referenced systematic oppression as the main reason behind their decision. The Kosovar people suffered horrendously at the hands of its former ‘parent state’ - Serbia, with some describing the situation spurred on by Slobodan Milosevic as genocide. Although disputed, the situation was of such severity that the UN stepped in to administer the territory to offset the worst of Serbian led oppression. This situation, where Kosovo received international consent to separate from Serbia, is termed ‘remedial secession’ & has entered the international legal lexicon, much to the dismay of many of the states who backed it – stressing that Kosovo was Sui Generis.
However, many academics put heavy reliance on the partnership between Kosovo and the United States. It has been suggested that the United States exerted significant economic power in order to influence its other allies to recognise Kosovo as an independent state. It has also been suggested this was a power-play on behalf of the United States who wished to advance their geostrategic position in Europe to defy its UN Security Council partner, Russia, who coincidently refused to recognise the sovereignty of Kosovo.
Another issue to note is the probability of violence that a UDI can bring. Since the early 90s several states that unilaterally implemented their independence were forced to defend it in arms – Croatia, Slovenia & more recently Ambazonia, to name a few. While Croatia & Slovenia achieved their independence after the dissolution of Yugoslavia, the self-proclaimed republic of Ambazonia is still attempting to defend its position from Cameroon.
In the absence of a powerful ally, it could be said that violence post-UDI is inevitable. The parent state, determined to stave off further secession attempts & trying to regain what it terms its national territory, is likely to flex military muscle in order to consume the breakaway state. It is worth noting that just a number of days after Catalonia’s independence referendum in 2017, Spain was preparing for a military intervention to quash the secession attempt.
Where to Catalonia?
Looking at the case evaluation, it is fair to say that if Catalonia reissues a UDI it will need to be tactful concerning the subsequent path. There are a number of ways it can achieve independence, De Facto or otherwise, but in order to survive a number of variables must be assessed.
Firstly, absent a robust strategy of diplomacy – which is worth an article on its own - Catalonia will need a powerful ally to ensure that its internal state mechanisms can function free from external impediment. The current landscape in geopolitical relations means that if it formed a strategic alliance with Russia, it may not achieve external state recognition – failing to satisfy the constitutive theory of statehood – and add another ‘frozen conflict’ to Europe. Moreover, if it forms an alliance with the United States it may achieve enough gravitas to have its legitimacy recognised. However, there are no current indications to suggest either of those nations are interested in any form of alliance with Catalonia.
Another variable that must be considered is that of military confrontation. The Spanish state is a powerful entity with a significant number of autonomous communities, many of which contain their own independence movements. Euskadi being most prominent. If Spain was to allow Catalonia to secede unilaterally with relative ease, it would rupture the territorial fabric & many of the autonomous communities may follow. In fact, it is likely that some would. In his instance, it is predicted that Spain will exercise its military might to regain control of the Catalan territory.
There are a number of questions Catalan separatists must ask themselves before embarking on a unilateral path.
Will the new Catalan Republic achieve enough recognition to do trade deals?
Will the EU design a Non-Recognition & Engagement Programme?
How would the state function absent a powerful ally & strong recognition?
Will the new state survive a military confrontation?
At present, a unilateral path is the only avenue open to Catalonia, due to the intransigent stance of the Spanish government. However, before pursuing this in the wake of the trial verdict, Catalan activists must reflect on the above questions & more, then incorporate those reflections into a pragmatic strategy to achieve independent statehood. It should not be lost on the people of Catalonia that their success could change the face of the right to self-determination & how it is applied in the post-colonial era. The Catalan people could potentially set the path for many other peoples seeking independence.
⏭Stephen McCourt is an independent human rights activist.