The international community has no interest in adding the possible secession of Catalonia to its problems. Any non-agreed secession would be viewed as a potential source of unrest and so would be viewed as undesirable. However, it is quite clear – for all of Spain’s denials – that unilateral secession is not prohibited by international law or by the practice of states. As indicated by the UN International Court of Justice’s 2010 resolution regarding Kosovo, unilateral secession is neither defended nor prohibited by international law. It is a question of fact that it is not unlawful, because international law adresses the principle of territorial integrity only to the state – not to the community that wishes to secede to form a new state. In 1998 the Supreme Court of Canada, in an opinion regarding the sovereignty of Quebec, stated that unilateral secession is admissible if negotiations are not possible because one party refuses to participate. Secession in this case would certainly be unconstitutional, but its ultimate success or failure would depend on recognition by the international community.
It is an opportune moment, therefore, to ask what the conditions are for obtaining international recognition. Note that recognition is above all a political act, so is granted at the discretion of each state. The factors that play a role are many and varied, but two in particular are important because they depend more on the seceding community than on external geopolitical considerations. These two factors are the effectiveness and the legitimacy of secession.
With regard to effectiveness, if the unilateral declaration does not ensure effective control of the situation in the region, secession will remain a desideratum. Also, if the declaration procedure is implemented badly, the state may take action against individuals or against the community as a whole and the international community will not defend the failed project. Thus, the first prerequisite for a unilateral declaration of independence is effective implementation. As has frequently been pointed out, this means not rushing matters and having state structures in place. And naturally, the people must also be committed enough to support their political leaders in taking this step.
As for legitimacy, what this means is proving to the international community that there are genuine grounds for the community seceding to become a new state. Crucial, therefore, is the creation and international dissemination of a consistent and coherent historical and economic account of the community, backed by enough self-protection reasons to justify the secession. Furthermore, it must be clear that all legal avenues of understanding and negotiation to reverse the unfair or discriminatory situation have been exhausted. It is also important for the politicians promoting secession to have popular support for their manifiesto validated at the polls. The existence of a committed popular movement is also an asset of the first order. Any minorities remaining in the new state should be guaranteed protection under inclusive and non-discriminatory policies and it should also be made clear that the new state will not represent a threat to its neighbours and that it has sufficient means to ensure its economic and social stability.
As far as Catalonia is concerned, the Spanish government is aware that creating the conditions for effective unilateral secession will not be easy and that recognition by the international community, without a referendum, will be complicated. And it has no intention of easing the way. But its consistent refusal to enter into any sustained dialogue regarding a referendum may also work against it and serve as a source of legitimacy when or if unilateral measures become necessary. Some politicians need to be reminded that the proposal for political dialogue regarding undoubtedly important yet essentially lesser issues – such as easing the financial squeeze on the Generalitat – cannot be accepted in exchange for setting aside the winning manifiesto in the elections of 25-N, namely, voting in 2014. We have arrived this far by democratic means and there can be no turning back.
Translation by Ailish Maher.