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On the right to self-determination: The Scottish and Catalan cases

By Dominik Lelkes, this article was originally published by the pan-European citizens' movement 'Stand Up for Europe' on April 19 2021.

The right to self-determination of ‘all the peoples’ is enshrined in the Charter of the United Nations (U.N. Charter art. 1, para. 2). It is a fundamental principle of international law based on what people are entitled to freely decide over their political status and freely pursue their own social, cultural, and economic practices. Despite this principle being one of the cornerstones of basic norms, it is still frequent that it ends at a crossroads with legal regulations. If we continue walking down the self-determination lane, we will eventually reach the concept of recognition. The latter is closely related to the concept of self-determination. This can be applied, for example, to a minority living within a particular state’s territory. A minority has the right to self-determination and can claim independence, however, this does not automatically validate the latter claim, neither does it grant the legal recognition by the state it claims sovereignty from nor by the international community. This is the case with territories such as Scotland, Catalonia, the Kurds, the Basques, Ireland, or Kosovo. For the purpose of clarity, I will focus on the state of play of Catalonia’s and Scotland’s independence particular cases.

The autonomous community of Catalonia is a region on the north-eastern coast of Spain, encompassing the provinces of Barcelona, Girona, Tarragona, and Lleida. Catalonia is one of the richest and most industrialized regions of Spain. The Catalan question started to gain momentum by the end of the 20th century when the Catalan identity started to emerge. A survey conducted by Podemos, the Spanish left-wing populist party, revealed that the pro-independence voters in Catalonia grew from 14% in 2006 to 47% by 2017 (Marini, 2017). Up to 2021, the citizens of Catalonia have been called upon twice to vote on the independence of Catalonia in a referendum. Both of these referendums, the first organised in 2014 and the second in 2017, were considered by the Spanish authorities illegal and invalid (Marini, 2017).

The biggest obstacle in the Catalan independence question is the rigid Spanish Constitution itself. Article 2 of the Constitution is the focal point of the Catalan situation. Article 2 states: “The Constitution is based on the indissoluble unity of the Spanish Nation…the common and indivisible homeland of all Spaniards…” (ES Const. art. 2). Therefore the 2014 and 2017 Catalan referendums on independence were unconstitutional because Spain constitutionally is a unitary and indivisible state. From the juridical point of view, the unconstitutionality and non-validity of the 2014 and 2017 referendums are strengthened by two other articles of the Constitution including – Article 92 and Article 149.32 – which state that “the referendum shall be called by the King on the President of the Government’s proposal after previous authorization by the Congress”…as well as…”the State shall have exclusive competence over the authorization of popular consultations through the holding of referendums” (ES Const. art. 92, § 2. & art. 149, § 1./32.).

When the central state negotiates the legality of the vote in advance, a referendum can be the right tool to change the territorial boundaries and the particular state involved can declare de jure sovereignty. The problem arises as were the cases with the above mentioned 2014 and 2017 Catalan referendums when the legality of the vote had not been discussed in advance between the central state and the concerned proponent and thus it was rather a claimed de facto sovereignty (Collin 2017). From this point of view, the separatist referendums of the Catalan government in 2014 and 2017 were rather illegal and irregular because:

1. They were invoked by the regional authority and not the central government;

2. Due to not having neither the consent of the central authority nor any prior legal consultation regarding the subject of the referendum.

Furthermore, under the 2017 referendum crises, Article 155 of the Constitution was also activated. It states that: “ if a Self-governing Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way that is seriously prejudicial to the general interest of Spain, the Government may… take all measures necessary to compel the Community to meet said obligations, or to protect the above-mentioned general interest” (ES Const. art. 155, § 1.). With the activation of Article 155 in 2017, the former President Mr Rajoy’s cabinet gained direct rule over Mr Puigdemont’s government of Catalonia which resulted in the dismissal of the Catalan government as well as the Catalan Parliament.

We cannot anticipate the future outcomes of the state of the Catalan question, since it seemingly could have enjoyed a different destiny since the 2019 electoral success of Pedro Sánchez and his Socialist Workers’ Party (PSOE). Despite PSOE promised to find a solution for the Catalan aspiration of independence after its electoral victory, after two years, no concrete action has been taken by Mr Sánchez’s cabinet. As a result, the pro-independence Catalan Republican Left Party (ERC) warned Mr Sánchez to finally act on the Catalan question if the PSOE wants the ECR to continue to abstain from the “investidura” (confidence) vote thanks to which the PSOE could form its cabinet in 2019. Pedro Sánchez has expressed his openness to address the Catalan issue and the need to reform the constitutional bodies and the constitution per se to resolve such conflicts through legal and democratic means (Russell, 2021).

My second brief case-study is that of Scotland, another example that struggles with its agenda to gain independence and legal recognition. The Scottish National Party (SNP) was founded in 1934 to unite all nationalist Scottish political parties on the political spectrum including the left-leaning pro-independence National Party of Scotland (NPS) and the conservative Scottish Party. For the first time in Scotland’s history, the Scotland Act of 1978 invoked the referendum as a political tool to be applied in the country. However, it was not until 1999 when the first successful referendum was held at the Scottish Parliament. After almost a decade, 2007 was a unique year for the SNP as for the first time since its existence, the party gained a historic victory in the Scottish parliamentary elections, increasing its share of seats to 47 out of 129 and thus defeating and setting the Labour Party in 2nd place with 46 seats. The SNP throughout the years continued its success story and in the 2011 Scottish parliamentary elections, the party gained for the first time a majority (69/129) in Holyrood, a factor that enabled them to call a referendum.

Eventually, the political agreement between David Cameron, the ex-Prime Minister of the UK, and Alex Salmond, the ex-Prime Minister of Scotland, in 2012 set out terms for the Scottish independence referendum (Black 2012). Despite the successful agreement, the 2014 Scottish referendum on independence did not show a successful turnout – only 45% in favour of independence whilst 55% against it (Paun & Sargeant 2020). Albeit, the referendum failed, two years later, when the United Kingdom started the Brexit campaign in 2016, the SNP under the leadership of Nicola Sturgeon again called for another referendum on the question of Remaining in the EU. Scotland voted 62% in favour which underlined Mrs. Sturgeon’s argument that “Scotland and the voters should be given a choice between Brexit and independence” (Paun & Sargeant 2020).

Although Scotland has expressed its intention to leave the UK, the central government still today refuses to transfer power to the Scottish government to hold another referendum. The UK government, on the contrary, considers the question of the Scottish referendum as settled, referring to the bilateral deal between Nicola Sturgeon and the UK government made upon the 2014 Scottish referendum “as a once in a generation vote” (Paun & Sargeant 2020).

Scottish independence remains highly questionable. A referendum needs the consent of Westminster which is very unlikely to happen under Mr Johnson’s administration. Besides, it is not given 100% that the Scottish people would eventually vote in favour of leaving the UK. Public surveys conducted in 2019 suggested that inclination towards “No Independence” almost equals “Leaving the UK” (Paun & Sargeant 2020). Furthermore, independence would also have negative consequences for Scotland from the trading and economic point of view. An economic border with both the UK and the European Union would shrink the Scottish economy in the long run by 6.3% to 8.7%. Withdrawal from the UK’s common market would account for 61% of its exports and 67% of its imports which would increase trading costs by 15% to 30% (Carrell 2021). Besides such economic impacts, independence also brings the need to establish a new currency which would again deprive Scotland of some exclusive privileges – from the financial facilities of the Bank of England. This is to suggest that Scottish independence would be pointless, at least from the economic point of view because it would impoverish the Scottish economy and consequently raise the poverty rate within the country.

Despite both the Scottish and Catalan cases face challenges to gain legal recognition, their cases differ in many ways. The biggest obstacle for Catalonia is the rigid Constitution, which makes it challenging for the region to gain recognition. The EU is not willing to intervene in the Catalan question and has taken a quite neutral position by addressing this crisis as part of the scope of “Spanish internal affairs”. Furthermore, if Catalonia were to gain legal recognition, it might be vetoed from joining the EU by Spain itself. In the case of Scotland, the latter situation depends mainly on the legislation and the consent of Westminster to approve the SNP to hold another referendum, which is very unlikely to happen under Mr. Johnson’s administration. Moreover, if Scotland were to gain independence, the country might face serious economic and financial challenges. Joining the EU for Scotland would be one option but a successful accession would take a longer time. The fate of Catalonia and Scotland is not likely to be solved in the upcoming years.

Sunday, 25 April, 2021 - 11:15