We may have lost the battle but we have not lost the war. This adage seems to resonate with secessionists worldwide. One would assume that Scotland’s decision to remain under the territorial sovereignty of the UK would demobilize secessionists elsewhere. Yet, the people of Catalonia remain as invigorated as ever. Catalonia’s President Artur Mas has signed a decree calling for a referendum on independence. The BBC reports, “Catalonia, which includes Barcelona, is one of Spain's richest and most highly industrialized regions, and also one of the most independent-minded.”[1] The desire to secede raises important concerns for international law.

First, what right do people have to secede?

People have a right to self-determination. Yet, what this right entails and where its boundaries lie has been so fiercely debated by jurists that most international practitioners stay clear of answering this tough question. Under certain conditions, it is likely that “the people” may democratically vote for secession. However, this determination raises an important second question.

Who may vote for secession?

The people could refer to the people of Catalonia or the people of Spain. The LA Times reports, “The Spanish Constitution says that the country is indivisible, that referendums can be called only by the central government and that such measures must be voted upon by all Spaniards, not just one region.”[2] Spain has important interests in keeping Catalonia part of their kingdom, such as wealth and natural resources. The devolution of power does disadvantage Spanish citizens, who likely benefit from taxable income for education, healthcare, and other social services. On the other hand, is it justifiable to deny the people of Catalonia, who possess a distinct language, culture, and history of Spanish oppression, a right to self-determination because of Spanish interests?

Does historical oppression justify secession?

The legal answer seems to be no. According to Damrosch and Murphy, “acquisition of territory by military conquest is now forbidden by international law, but previously-settled title remains in place.”[3] Secession, therefore, should not be granted as a means to circumvent this international maxim. Typically, exceptions are granted to this rule for human rights violations. Yet, Catalonia’s motivations for independence seem to be the preservation of its culture as opposed to escaping some genocide.

Should the preservation of culture justify the creation of new states?

This is an interesting and complicated question. There is no doubt that the ICESCR protects the right of persons to “take part in cultural life.”[4] Spain ratified the ICESCR back in 1977. One might feel that the ICESCR would terminate this discussion, answering in the affirmative. Yet, it is more likely that the ICESCR imposes obligations on Spain to ensure the maintenance of Catalonian culture. Therefore, in the face of declining cultural heritage, Spain should promote Catalonia lifestyle through music, the establishment of museums and libraries, and safeguarding Catalonia’s unique language and history through education.

Secession raises strong considerations on both sides. The rights of Spain and her citizens are in conflict with the rights of the Catalan people. These challenges are not one-dimensional, and thus, require a broad evaluation of relevant legal norms.

[1] BBC News, Catalonia President Signs Independence Referendum Decree, September 27, 2014, http://www.bbc.com/news/world-europe-29390774.  

[2] Lauren Frayer, Catalonia Lawmakers Approve Holding Vote for Independence from Spain, Sept 19, 2014, http://www.latimes.com/world/europe/la-fg-catalonia-independence-20140919-story.html.

[3] Lori Fisler Damrosch & Sean D. Murphy, International Law Cases and Materials, 362, 6th ed.   

[4] International Covenant on Economic, Social, and Cultural Rights, art. 15, Apr. 27, 1977.