Non-recognition of Catalonia’s unilateral declaration of independence

Published: 29 October 2017 Author: Stefan Talmon

Catalonia is an autonomous region within Spain with a strong independence movement. On 1 October 2017, the Catalan regional authorities held an independence referendum which had been declared illegal by the Spanish constitutional court. The Catalan authorities claimed that 90 percent of voters supported independence, but turnout was only 42.3 percent and there were reports of irregularities. On the evening of the referendum, Catalan regional President Carles Puigdemont, declared:

“With this day of hope and suffering, the citizens of Catalonia have won the right to an independent state in the form a republic. My government, in the next few days will send the results of today’s vote to the Catalan parliament, where the sovereignty of our people lies, so that it can act in accordance with the law of the referendum.”

Asked about the developments in Spain, the government spokesperson declared on 4 October 2017:

“It is our firm conviction that this is an internal Spanish matter. […] The Spanish constitutional court has clearly stated that this so-called referendum is not in conformity with the Spanish constitution. It is the task of every government to uphold the constitutional order. In a democratic State the constitution protects the rights of all citizens.”

Several days later, Chancellor Angela Merkel “affirmed her support for the unity of Spain.”

It was widely expected that at a meeting of the Catalan parliament in the evening of 10 October 2017, President, Carles Puigdemont would unilaterally declare Catalan independence. However, instead of delivering a formal declaration of independence he gave a rather perplexing speech in which he said:

“We have won the right to be an independent country. As the president of Catalonia I want to follow the people’s will for Catalonia to become an independent State. I ask for the mandate to make Catalonia an independent republic.

Arriving at this historic moment, as president of the Generalitat, I take it upon myself to say, in presenting to you the results of the referendum before Parliament and our co-citizens, that the people have determined that Catalonia should become an independent state in the form of a republic.

With the same solemnity, the government and myself propose that the Parliament suspends the effects of the declaration of independence so that in the coming weeks, we may begin a dialogue without which it is impossible to arrive at an agreed solution.”

Shortly after the speech, when the international media had turned off their microphones and cameras, President Puigdemont and 72 pro-independence members of parliament signed a “Declaration of the Representatives of Catalonia” addressed to “the people of Catalonia and to all the peoples of the world” which read, in part, as follows:

“we, the democratic representatives of the people of Catalonia, in the free exercise of the right of self-determination, and in accordance with the mandate received from the citizens of Catalonia,

ESTABLISH the Catalan republic, as an independent and sovereign, democratic and social state under the law. […]

AFFIRM our willingness to open negotiations with the Spanish state, without any pre-conditions, aimed at establishing a collaborative system for the benefit of both parties. The negotiations must be held on an equal footing. […]

URGE the international community and authorities in the European Union to intervene to stop the current violation of civil and political rights and to monitor and be witness to the negotiation process with the Spanish state. […]

APPEAL to States and international organisations to recognise the Catalan republic as an independent and sovereign State.”

However, at the same time it was decided to suspend the Declaration to allow for more dialogue with the Spanish government. While the international community wondered whether Catalonia had in fact declared independence, the Foreign Minister Sigmar Gabriel on 11 October 2017 issued the following statement on the situation in Catalonia:

“A unilateral declaration of Catalan independence would be irresponsible. For our shared European experience has taught us that Europe’s strength lies in its unity and the peace which European integration has brought. The demonstrations of the last few days have shown that Catalonia’s population is divided on the question of independence.

The truth is that a solution can only be found through a dialogue based on the rule of law and within the limits of the Spanish constitution. Ultimately, a solution will only be durable if it has the support of the majority of Spaniards and Catalans.”

On the same day, the deputy government spokesperson commented:

“This is an internal Spanish matter. […] With regard to last night, I can add that any declaration of independence by Catalan institutions would be illegal and unacceptable, and that it would not receive any recognition.”

On 11 October 2017, the Spanish Government formally requested the Catalan government to clarify whether it had declared independence and, if so, to withdraw that declaration. Otherwise, the Catalan government would be dismissed and direct rule by the central government in Madrid would be imposed, in accordance with Article 155 of the Spanish Constitution. On 18 October 2017, Foreign Minister Gabriel issued the following statement:

“There is an air of uncertainty surrounding the citizens and businesses of Catalonia. With every passing day, their uncertainty grows and the situation becomes more difficult.

The Catalonian regional government must now finally provide the clarity that is needed and demonstrate that it respects the Spanish constitution.

At this time, it is in everyone’s interest that a solution be found that is within the bounds of the law.”

The Catalan regional government ignored any demands to clarify its position. However, on 27 October 2017, the Catalan parliament adopted by a vote of 72 in favour, 10 against and 2 blank ballots, the “Declaration of the Representatives of Catalonia” which had been signed by pro-independence deputies on 10 October 2017. Fifty-three members of the 135-member parliament had left the chamber in protest prior to the voting because they considered the vote illegal.

Within hours of the declaration of independence, the spokesperson of the Federal Government issued the following declaration:

“The Federal Government is concerned about the renewed escalation of the situation in Catalonia triggered by the renewed breach of the constitution on the part of the Catalan regional parliament. The sovereignty and territorial integrity of Spain are and always will be inviolable. A unilaterally declared independence of Catalonia violates these protected principles. The Federal Government does not recognise such an independence declaration.

The Federal Government supports the clear attitude of the Spanish Prime Minister to ensure and restore the constitutional order. We hope that the parties will use all available means for dialogue and de-escalation.”

Foreign Minister Gabriel also issued a statement which read as follows:

“The fact remains that only talks based on the rule of law and within the framework of the Spanish Constitution can bring about a solution. That is why we will not recognise Catalonia’s unilateral declaration of independence. A strong, united and stable Spain is important to us. Particularly now, when the countries on Europe’s doorstep are experiencing unrest and conflict, Europe must present a strong, united front. Drawing new borders and building new walls in Europe is not in the interest of Europe’s citizens.”

In reply to parliamentary questions the Federal Government further clarified its position on the unilateral declaration of independence. Asked whether there was any difference in international law between past quests for independence in Slovenia, Croatia, Montenegro and Kosovo and present quests for independence, inter alia, in Catalonia, the Federal Government replied:

“An international law assessment requires that account is taken of all the specific circumstances of the individual case. While the international law standards to be applied in principle remain the same, differences in the underlying specific facts of these cases may lead to different results in the assessment.”

Asked why the Federal Government had recognized the independence of the constituent republics of Croatia and Slovenia from Yugoslavia in the 1990s while now categorically refusing to recognize Catalonia as an independent State, the Federal Government replied:

“The events in the former Yugoslavia are not comparable to the current developments in the Kingdom of Spain. The Kingdom of Spain is a democratic State based on the rule of law; this was not the case with regard to the former Yugoslavia. The recognition of the independence of Slovenia and Croatia also took place against the background of the military operations of the Yugoslav army against the then constituent states. Both the Spanish government and the proponents of independence in Catalonia have committed to resolving the political conflict in a non-violent way and through dialogue.”

The Federal Government was also asked to explain why it did not support the Catalans when it had actively supported the independence of the Baltic nations from the Soviet Union. The Federal Government stated that it had “never recognized the illegal annexation of Estonia, Latvia and Lithuania by the Soviet Union in 1940.” In response to the question of whether it would recognize a peaceful separation of Catalonia from Spain, as it had done in the case of the separation of the Czech Republic and Slovakia, the Federal Government stated:

“In a Europe that is steadily growing together, the Federal Government can generally see no advantage when parts of EU Member States secede and new borders are created. However, the Federal Government respects such decisions if they have come about through dialogue by democratic means and based on the rule of law.”

Decisions of recognition must be taken on the basis of the specific circumstances of each individual case. The case of Catalonia is not comparable to any of the other cases raised in the parliamentary questions. Catalan society is deeply divided on the question of independence. Even if the Catalans were a “people” entitled to the right to self-determination, which they are not, the adoption of a declaration of independence by 70 out of 135 members of the Catalan parliament could not be considered a proper exercise of the right to self-determination. There is also no question of so-called “remedial secession” in the case of Catalonia which is enjoying a high degree of autonomy within Spain, a democratic country based on the rule of law and “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.”

Category: Statehood and recognition

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  • Stefan Talmon

    Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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