Emily Ashby is a second year concentrator in International Law, with a minor in Latin American Studies. Her studies at SAIS have been focused on trade and investment policy, although she also contributed to a forthcoming book on U.S.—Portugal military relations during WWII. After getting her BA in Political Science from Middlebury College she pursued a Fulbright scholarship in Lisbon, Portugal, and has also worked as a securities paralegal in São Paulo, Brazil. This year she interned in the U.S. Trade Representative’s Office of Europe and the Middle East, and currently works as a Trade/Latin America Fellow at McLarty Associates.
Catalonia, a region in the north-east of Spain, has often been at odds with its mother state. The 7.5 million Catalans are culturally and linguistically distinct from their fellow citizens and suffered repression under the dictatorship of Francisco Franco. The region is now one of Spain’s seventeen autonomous regions, governed jointly by a federalist Constitution and the Catalan Statutes of Autonomy.
However, in a June 28, 2010 decision, the Spanish Constitutional Court struck down some of the Statutes’ provisions which grant greater autonomy, deeming them incompatible with the Constitution. Millions took to the streets following the ruling, and in 2014 the government held a “popular consultation.” A second referendum on October 1, 2017, was suspended by the Court and disrupted by federal troops. Even so, 90% of the 42% of voters who turned out favored secession, and on October 27, the regional Parliament declared independence. Prominent pro-independence politicians are now in exile, and on March 23 the Supreme Court confirmed charges of rebellion against former President Puigdemont, 11 members of his government, and current presidential candidate Jordi Turull.
The situation has placed Catalonia in the international spotlight as a possible forerunner of other EU breakaways, namely Scotland, the Basque country, and Flanders. Some frame the question as economic—Catalonia comprises 6.3% of the nation’s territory but generates 19.8% of its GDP, and has long fought to retain a larger share of national taxes. Still others analyze it in terms of a trend towards devolution, or as part of the global anti-establishment movement.
But perhaps the most interesting dimension is the legal one, which examines the uncertain process towards EU membership for the budding independent nation. This is significant because Catalan secessionists are largely keen on the EU, and benefit from the freedom of movement and trade deals it champions. As in the case of Scotland, Catalonia’s objective is to loosen national bonds while reinforcing supranational ones. A statement from the Catalan Parliament in 2012 declared the region’s intention to “adopt a strategy of dialogue and permanent collaboration with European institutions, especially with the European Commission and the European Parliament … in order to facilitate the international recognition of the decisions that the people of Catalonia may make on their collective future.” Indeed, deposed regional President Puigdemont fled to Brussels in the wake of his defenestration to drum up support for supranational mediation by “put[ting] the Catalan problem at the heart of the European Union.” The critical policy question which therefore arises is: what stance should the EU take on Catalan secession and on membership for separatist regions of constituent states in general?
The Legality of Secession
Under Spanish law
The first matter for debate is the legality of Catalonia’s proposed secession under Spanish, EU, and international law. The option of secession is rarely enshrined in national constitutions because:
[t]o place such a right in a founding document would increase the risks of ethnic and factional struggle: reduce the prospects for compromise and deliberation in government; raise dramatically the stakes of day-to-day political decisions;…create dangers of blackmail, strategic behavior, and exploitation; and, most generally, endanger the prospects for long-term self-governance.
This is particularly relevant in a highly decentralized country such as Spain, in which brinkmanship with regional governments is common and has, in the Basque country, taken the form of homegrown terrorism.
Spain is a plurinational state. Catalan is recognized as a nationality and Catalonia is governed as an autonomous community. However, the Spanish Constitution is “based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards,” and “national sovereignty belongs to the Spanish people, from whom all State powers emanate.”
While Spanish law places no limits on constitutional reform, amendment has happened only twice. The process is also difficult, requiring two-thirds approval in each House, success in elections that are to be called immediately following the approval, the approval of two-thirds of each new House, and approval by the Spanish people in a nationwide referendum. With the necessity of a Spain-wide majority approval, the problem of low national support for Catalan secession proves a sticking point. A final hurdle involves Catalan law itself: a two-thirds majority of the members of the Catalan Parliament is required to amend the Statutes of Autonomy of 2006, rendering a one-time popular vote legally insufficient.
Under EU Law
In the Case of a Unilateral Declaration of Independence
Under EU law, secession’s legality hinges on whether or not secession is disputed by the mother country. A unilateral declaration of independence (UDI), such as that made by Catalan’s Parliament in October 2017, is forbidden. Article Four of the Treaty of the European Union requires it to “respect … essential [Member] State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security.” There is “no counter-balancing reference to self-determination at the sub-national level, and indeed regional government is described as an aspect of existing Member States’ national identities, not as a prototype for a separate demos.” For example, the European Council declared in 2015 that, despite overwhelming approval in a popular vote, the unification of Crimea with Russia was illegal because it violated the Ukrainian Constitution.
As recently as October 2017, the European Commission confirmed that the Catalan independence vote was “not legal” and was “an internal matter for Spain that has to be dealt with in line with the constitutional order of Spain.” Because Spain’s constitution enshrines unity, carrying through with a UDI largely precludes entrance to the EU.
In the Case of a Negotiated Settlement
Negotiated secession, on the other hand, is permitted under EU law as a matter of national jurisdiction. The Council of Europe’s Venice Commission reminded Catalan leaders of this, saying that a referendum “will have to be carried out in agreement with the Spanish authorities,” and that for this reason the recent vote “does not meet” Commission standards.
The Commission’s Secretary General instead held up as a model Scotland’s 2015 referendum which, by virtue of its joint elaboration by the regional and central government, led to a result that was respected by the region, state, and EU. The vote was based on a framework called the Edinburgh Agreement, which established a clear legal base, outlined logistics for carrying out the vote, and required approval by the Scottish Parliament. Spain could emulate this model, in the hope that the drafting period would highlight the costs of separation and thereby moderate enflamed sentiments.
However, several elements would be difficult to replicate in Catalonia. First, the Edinburgh framework required the government to provide accurate information through an awareness campaign. Additional provisions prescribed funding, spending, promotional activities, timeframes, and wording of the question. In short, a degree of trust and agreement between the Scottish and UK governments enabled the referendum to be conducted in a democratic environment. Such cooperation is unlikely in the contentious environment of Spain. It would be difficult to conduct a neutral campaign, given that so many eventualities (e.g. division of the welfare state, responsibility for the national debt) depend on negotiations with Madrid, which would have an incentive to increase uncertainly. Any vagueness in the definition of Catalan independence would handicap voters in their deliberations and pave the way for civil society organizations or subsequent governments to contest the vote.
The central Spanish government has thus far been unwilling to countenance collaboration. However, mounting pressure from human rights groups, successive elections of pro-independence regional parties, and the logistical difficulty of asserting direct rule could force its hand.
Under International Law
Secession is neither explicitly allowed nor forbidden under international law, as the United Nations Charter does not make note of it. The Charter contains the principles of territorial integrity, political independence, and national sovereignty, but also makes mention twice of the right of self-governance—stating the organization is to be “based on respect for the principle of equal rights and self-determination of people.”
We can interpret the text by examining the drafting history of the relevant consultative group. The group agreed that “the principle conformed to the purposes of the Charter only insofar as it implied the right of self-government of peoples and not the right of secession.” It seems, then, that self-determination extends only to the right of distinct peoples to rule themselves within a larger state. This elevation of national rights over minority rights was partially a result of the disastrous politics of racial self-determination during World War II. However, the committee also commented that “…an essential element of the principle in question [of equal rights and self determination] is a free and genuine expression of the will of the people,” which is more encouraging for Catalonia.
Discussions of this topic by the General Assembly have largely concerned cases of European colonialism, leading in 1960 to the passage of Resolution XV on the right of colonial peoples to independence. While this does not apply to Catalonia, the resolution more broadly states that “all peoples have an inalienable right to complete freedom, the exercise of their sovereignty, and the integrity of their national territory.” It is not clear to whom this applies, although most discussion concerned colonial possessions. Self-determination is further defined as the ability to “freely determine their political status and freely pursue their economic, social and cultural development,” or the freedom from domination by more powerful peoples. Autonomous Catalonia would be hard-pressed to argue oppression similar to that practiced by colonial powers, and any such behavior by the Spanish state would provoke sanctions from the European Union.
The Case of Kosovo
Two cases are relevant to secession under international law. The first of these is the International Court of Justice’s opinion on Kosovo’s unilateral declaration of independence from Serbia in 2008. Kosovo’s religious makeup and history of repression is distinct from Catalonia’s case, but the ICJ’s logic is noteworthy. In 2010 it ruled that Kosovo’s declaration did not violate general principles of international law because international law contains “no prohibition of declarations of independence according to state practice.” Germany, the Netherlands, and Croatia put forth arguments supporting the right to secession, though conditional upon prior civil and human rights violations. However, the Court also concluded that the Security Council could condemn a secessionist party if its conduct amounted to a threat to the peace, breach of the peace, or act of aggression. Spain itself presented arguments against Kosovo’s declaration and formally petitioned the UN to declare it illegal.
There has been much debate as to whether Kosovo constitutes a special case or sets a precedent. The ICJ adopted a narrow scope in its answer, noting that it had not been required to decide “whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it.”
The Case of Quebec
The case of Quebec adds to relevant case law. Although the Spanish Constitutional Court is not bound by international interpretations of self-determination, a supranational international body considering Catalan secession could well look to its reasoning. Responding to a 1998 secessionist movement in Quebec, the Supreme Court concluded that, while domestic law prohibits unilateral secession, international law does not explicitly grant or deny this right. It further concluded that international law prohibits unilateral secession in countries whose constitution forbids it and in democratic countries in which “residents of the province freely make political choices and pursue economic, social, and cultural development.”
Finally, the ruling declared that if a large majority favored separation through a popular vote, the central government should be obliged to open secession talks with the region. The Court also warned that the ultimate success of any secession would be influenced by its recognition or non-recognition by the international community. This puts the teleological flaw of Catalonia’s argument in stark relief: its stated aim of secession is made impossible by the very means through which it would be achieved. In other words, one driving motivation for Catalonia’ secession—the goal of becoming a more prosperous and open state through EU membership—would be frustrated by the illegality of Catalonia’s unilateral declaration of independence.
In Le siècle de Louis XIV, Voltaire opined that “Catalonia can do without the whole universe, but its neighbors cannot do without Catalonia.” In the case of secession, however, the reverse is true: the more numerous and powerful Catalonia’s allies are, the more smoothly its transition into the international community would proceed.
In keeping with declaratory theory, the Montevideo Convention sets out conditions for statehood and notes that “the political existence of the state is independent of recognition by the other states.” Therefore, as long as Catalonia meets the requirements of a permanent population, defined territory, government, and capacity to enter into relations with other states, it is considered a state. After the breakup of the USSR in 1991, the European Community created non-binding guidelines for recognition, including respect for democracy, minorities, and the rule of law.
In sum, the ambiguity of international laws on recognition means that it remains at the discretion of each state, as has been the case for Taiwan, Kosovo, and Palestine. Despite heavy international pressure, Spain, Cyprus, Slovakia, Romania, and Greece have not recognized Kosovo, suggesting that EU countries with active border disputes or break-away regions are unlikely to recognize Catalonia.
Secessionist Schools of Thought
On a more theoretical note, political scientists are split between permissive and restrictive secessionist schools of thought. The former, expounded by Harry Beran, Kai Nielsen, and Daniel Philpott, holds that unilateral secession is a free (but conditional) choice, rooted in the decision of individuals constituting a national community. In this thinking, secession is a priori because it stems from the nature of political freedom, and can be exercised when the following conditions are met: respect for the rights of minorities, conduct of a democratic process, presence of a civic understanding of nation-building, and exhaustion of alternatives.
The more restrictive view, propounded by Lee C. Buchheit, Allen Buchanan, and Lea Brilmayer, takes secession to be a posteriori and remedial. Different sets of criteria have been floated to define a just cause, but all require flagrant injustice towards the territory in question and most stress both the disruptive effects of secession on the international community and the contentious nature of “self” as a motivating factor.
The overlap between these theories underscores a vital point: even the most permissive of secessionist theorists require that less radical alternatives, such as greater economic, political, and linguistic autonomy, be explored first. The majority of area scholars believe that a national federal structure should satisfy most secessionist claims. As pertains to Catalonia, the conclusion can be simply put: under Spanish, EU, and international law, the case for unilateral secession is weak.
Paths to EU Membership
Assuming, then, a negotiated secession from Spain, the next step is to examine an independent Catalonia’s road towards EU membership. With the backdrop of a chaotic Brexit, the probability of successful membership influences the independence process itself; the better the prospect of a smooth transition into the EU, the less costly independence appears to voters.
Catalonia’s right to automatic membership in the EU has been a talking point for some Catalan politicians. However, this is unlikely. As per the 1978 Vienna Convention on the Succession of States in Respect of Treaties, treaties are legally binding only on a successor state which, in the case of Catalan secession, would be the remaining Spanish territory. Additionally, the EU Commission has been unwilling to comment on specific cases of accession, refusing to remark on matters which “as things stand, are purely hypothetical.”
The Commission has been more forthcoming at other times, as in 2013 when vice president Joaquin Almunia clarified that “if one part of a territory of a member state decides to separate, the separated part isn’t a member of the European Union.” Thus, the EU would more likely require a formal accession process. Furthermore, the 1978 Convention’s take on the automatic adoption of treaties is “without prejudice to the rules concerning acquisition of membership and without prejudice to any other relevant rules of the organization,” leaving the matter in the Commission’s hands. In 2004, the Commission declared, referring to the case of Algeria’s independence from France, that:
when a part of the territory of a Member State ceases to be part of that state, e.g. because that territory becomes an independent state, the Treaties will no longer apply to that territory. [Thus], a newly independent region would, by the fact of its independence, become a third country with respect to the Union and the Treaties would, from the day of its independence, not apply anymore on its territory.
Application for Accession
The crux of the debate, then, is whether the accession would be facilitated or lengthy, if not impossible. The weight of the argument among those who believe that a “fast-track” to accession is possible is a moral one: the European Court of Justice would be loath to deprive Catalans, some of whom voted against secession, the legal rights that they have enjoyed under the EU. These same rights, including freedom of movement and the opportunity to work in member states, may not apply in an independent Catalonia. This line of thinking, relevant also to the rights of UK citizens post-Brexit, is predicated on the creation of a direct relationship between the EU citizen and the organization through the Maastricht treaty. Having thus conferred the rights of EU citizenship on their peoples, EU Member States cannot revoke it. However, it is unclear how this applies in the case of secession, as national and EU citizenship would no longer be linked unless Catalans can retain Spanish citizenship. In any case, it can be argued that “rules of positive international law purport to bind private persons directly, without interference from national law,” meaning that EU subjects cannot lose their citizenship involuntarily.
This points towards an interim membership while negotiations over accession are fast-tracked, especially as Catalonia has been synced with EU regulations since Spain’s accession in 1986. Supporters of this theory note that, because the only precedent for exit of the EU are those of Greenland in 1985 and Algeria in 1962, before the signing of the Treaty of Lisbon, and because Article 50 only outlines mechanisms for the departure of a member state, Catalonia could be dealt with on an ad hoc basis. Proponents of this theory also note that European Council can alter the so-called “Copenhagen Criteria” for entry into the EU, and that these have in fact been modified and supplemented over the years. Precedents for unorthodox arrangements with EU membership include that of Denmark, which contains two regions which are not part of the EU —the Faroe Islands and Greenland— and East Germany, which was automatically inducted into the EEC following reunification in 1990. It would be possible, then, for the Council to tailor-make accessions to allow for a speedy verification of the requirements’ satisfaction.
Through Article 49
However, given the political complications of creating a process not explicitly provided for in Article 50, it is more likely that Catalonia would follow a traditional accession process. In October 2017, European Commission president Jean-Claude Juncker stated that in the case of a state-sanctioned referendum “the territory leaving would find itself outside of the European Union.” The European Court of Justice added that “[i]t is not possible for the European Communities to comprise a greater number of Member States than the number of States between which they were established.” Finally, while Article 49 does not mention secession, its framework for exiting the EU community may apply in this situation. The process includes two years of negotiation and uncoupling before leaving (assuming a previous disentanglement from Spain) before accession talks could begin. These talks could difficult, as they might entail changes to the Treaty’s decision-making procedures and national representation for Spain. Catalonia’s accession would also need to be ratified by all member states, which is far from certain.
It seems that, absent an established automatic or fast-track path to accession and present a Spanish veto, EU membership for Catalonia is unlikely in the current political climate. The more likely outcome of independence is the flight of capital and business as Catalonia, in the words of David Cameron, “take[s] its place at the back of the queue behind those other countries applying to become members of the European Union.”
Going forward, much depends on the attitude of the Spanish central government towards Catalonian independence; without a negotiated secession, there is no viable path to EU citizenship. And while some were surprised that in 2012 Foreign Minister José Manuel García-Margallo declared that Spain would accept Scotland as an independent nation and not block its accession to the EU, the Spanish Constitutional Court continues to take a hard line against domestic secessionists.
In this climate, the EU has several political tools to ameliorate the Catalan crisis. It can use diplomacy to pressure both sides to compromise, condemn the violence of federal troops, and reassure Catalans of their rights as EU citizens. Within the legal realm, however, EU laws and Commission statements already provide enough instruction on secession and the route to membership for a newly independent state. It is impossible for the EU to take a position on all eventualities of the Catalan question, and doing so would open a Pandora’s Box of legal actions from member states resentful of the encroachment. By attempting a clarification, the EU would inevitably either encourage or dampen the prospects of independence-minded regions and therefore influence the outcome of a purely national matter. In the face of Catalan secession, inaction is the European Union’s best option.
Top photograph, “Holding Hands for Catalan Independence NYC” taken by Liz Castro (https://www.flickr.com/photos/97352149@N00/9642557419) used under Creative Commons license for reuse (https://creativecommons.org/licenses/by-sa/2.0/)
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 Consolidated Version of the Treaty on European Union art. 4, 2010 O.J. C 83/01, at para 2.
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 Doc. No. 944, I/1/34(1), 6 U.N. Conf. Int’l Org. Docs. 445, 455 (1945).
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 “Reference re Secession of Quebec.” Supreme Court of Canada 1998, S.C. R. 217, para 154-155.
 “Montevideo Convention on Rights and Duties of States.” League of Nations Treaty Series, 1933, vol. 165, art. 3
 “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union.” European Council, 16 December 1991.
 Bruno Coppieters and Richard Sakwa. Contextualizing Secession: Normative Studies in Comparative Perspective. (Oxford: Oxford University Press, 2003), 6.
 Ibid 7.
 Ibid 7.
 “Vienna Convention on Succession of States in respect of Treaties.” UN General Assembly, 6 November 1996, Article 34(a).
 Response of the European Commission to Written Question H-1086/06 by Catherine Stihler (SPD), 20 December 2006.
Nikolaj Nielsen. “EU Commission: Catalonia Must Leave EU If It Leaves Spain.” EU Observer, 17 Sept. 2012.
 “Vienna Convention on Succession of States in respect of Treaties,” Article 4.
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 From the European Economic Community, precursor of the EU.
 These were adopted by the European Council of Copenhagen in 1993, strengthened by the Madrid European Council in 1995, and have been codified slowly through Community legislation and case law of the European Court of Justice and European Court of Human Rights.
 Merijin Chamon, and Guillaume Van Der Loo. “The Temporal Paradox of Regions in the EU Seeking Independence: Contraction and Fragmentation versus Widening and Deepening?” European Law Journal 20.5, 2013.
 “Statement on the events in Catalonia.” European Commission, 2 October 2017. http://europa.eu/rapid/press-release_STATEMENT-17-3626_en.htm
 Case C-95/97, Région wallonne v Commission of the European Communities 1997. ECR 1-1787, para 6.
 Javier Casquiero, “Cameron Warns Catalonia That Independence Means Leaving EU,” El Pais, 4 Sept. 2015.
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