On 9 June 2017, the Government of Catalonia announced the celebration of a referendum on self-determination to be held the next 1 October 2017. The Catalan call triggered a new political and legal quarrel with the Spanish government that was inexorably opposed to recognising the right of self-determination of Catalonia. The political clash between the State and the autonomous community opened several questions on the use of referendum on self-determination without the authorisation of the State. This chapter scrutinises the Catalan referendum on independence analysing in detail both the Spanish arguments to abort the voting (considered as an unconstitutional act that breached the rule of law and a criminal offense) and the Catalan thesis to hold the plebiscite (Democratic principle and the exercise of the human right of self-determination. The chapter follows by critically analysing the legitimacy of secession referenda in constitutional democracies and its suitability, or not, to settle territorial disputes where national minorities are involved. The conclusion summarises the chapter’s main arguments and raises questions for future research on secession referenda.
This paper aims to show that secession, especially if unilateral, is difficult in contexts of liberal democracy. Obstacles and difficulties to consensual secession will be distinguished from those of unilateral secession, emphasising the harshness of the latter in light of the Catalan experience. With regard to consensual secession, several constitutional models will be ordered along a sort of spectrum of legal barriers. With respect to unilateral secession, many difficulties and problems will be addressed, such as polarisation, non-recognition, coercion, anarchy and legal uncertainty. Three strategies will be analysed to tackle these issues, namely domestication, perseverance and drama. Although a combination of all three is expected in the world of facts, domestication and perseverance should prevail over drama in the normative realm of liberal democracy. The strategy of drama ought to be limited or restrained in contemporary democracies. Drama is contagious and can backfire.
Sovereign States have always been reluctant to recognize wide interpretations of the right to the self-determination: they see in them a dangerous thread against their own political unity. That may explain why even international law provisions such as article 1.1 of the 1966 International Covenant on Civil and Political Rights declares that ‘all peoples’ have the right to self-determination States have usually limited the scope of such right to the decolonization processes developed mostly in Asia and Africa after the Second World War. The present paper argues, in a different vein, that the recognition of the right to external self-determination encompasses other cases beyond the decolonization processes. It explores the path taken by some prominent international law scholars such as Antonio Cassese according to whom the right to external self-determination might emerge once the accommodation of a particular national people within a larger sovereign state is frustrated. In other words: the right to external self-determination, even within the context of a constitutional democracy (or precisely because of that) may appear when a State’s internal processes of decision-making do not allow the peoples concerned to decide on their own political status. The paper explores to what extent such doctrine (also grounded in some opinions of the International Court of Justice) might be applicable to the Catalans’ present situation considering both that the holding of a referendum on secession is severely repressed by the Spanish constitutional system and that Catalan’s independence is supported by a large majority of the Catalan citizenry as elections to the Catalan Parliament have continuously revealed.