The Case Against Catalonia: Why Neither Domestic nor International Law Will Aid Catalonia in its Quest for Independence

• Author: Elena Miller
• Position: Brigham Young University J. Reuben Clark Law School
• Pages: 389-415

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2021 e Institute for Migrant Rights Press

thE CasE against Catalonia

Why Neither Domestic Nor iNterNatioNal laW

Will aiD cataloNia iN its Quest for iNDepeNDeNce

Elena Miller

Brigham Young University J. Reuben Clark Law School

E-mail: elenam17@law.byu.edu

In recent years, a vibrant independence movement has ourished among the

citizens of Catalonia. Tensions between Catalonia and the Spanish government

came to a head in 2017 when voters said yes to unilateral secession in a ref-

erendum and the Catalan government declared independence. is paper will

analyze Catalonia’s claim to independence and conclude that Catalonia cannot

use domestic or international law to gain independence. Despite Catalonia re-

lying on the context of linguistic, cultural, ethnic, and economic arguments for

independence, none of them legally justify Catalonia taking action to secede

from Spain. Catalonia cannot secede legally using domestic law because there

is no way to seek independence under Spanish law. Furthermore, the Spanish

Constitutional Court has already declared Catalonia’s 2017 referendum uncon-

stitutional. Additionally, Catalonia cannot use international law to secede be-

cause it does not meet any of the three options under which self-determination is

justied. Moreover, Catalonia lacks the ability to become an independent State

under the prevalent theories of statehood under international law. Ultimately,

Catalonia’s options are to do nothing or to unilaterally secede unjustiably and

hope that other States will recognize it.

Keywords: Self-Determination, European Law, Sovereignty, Secession Law.

VIII Indonesian Journal of International & Comparative Law 389-415 (October 2021)

390

Miller

INTRODUCTION

Catalonia has long wanted independence from Spain. In fact, there are

many separatist movements around the world.1 Catalonia’s example

may be relevant to other potential States’ future attempts. In the past,

Catalonia suered through an oppressive dictatorship with the rest of

Spain.2 More recently, in the autumn of 2017, a unilateral referendum

was voted on.3 e whole situation “descended into chaos.”4 Spain’s

Constitutional Court concluded that the referendum was illegal.5 Ob-

servers deemed the situation “the biggest political crisis in 40 years.”6

However, this article is not about whether Catalonia has valid bases

for independence; this is an analysis of the legal means of gaining

independence from Spain. e real question is not whether Catalonia

“deserves’’ independence, as this is an emotionally fraught and delicate

subject within the Iberian Peninsula. Every action taken for or against

1. For example, Scotland. See e.g., David J. Scheer & Madeline Babin, What’s Next

for Scotland’s Independence Movement?, Council on Foreign Relations, May

13, 2021, https://www.cfr.org/in-brief/whats-next-scotlands-independence-

movement (last visited Dec. 1, 2021). In Spain itself, Catalonia is not the

only region claiming independence and therefore is a live issue. See e.g., Jon

Henley, Finbarr Sheehy, Glenn Swann, & Chris Fenn, Beyond Catalonia: pro-

independence movements in Europe, THE GUARDIAN, Oct. 27, 2017, https://

www.theguardian.com/world/ng-interactive/2017/oct/27/beyond-catalonia-

pro-independence-movements-in-europe-map.

2. Britannica, Franco’s Spain, 1939–75, https://www.britannica.com/place/Spain/

Francos-Spain-1939-75 (last visited Dec. 1, 2021).

3. Camila Domonoske & Scott Neuman, Catalonia Declares Independence; Spain

Approves Central Takeover of Region, NPR, Oct. 27, 2017, https://www.npr.org/

sections/thetwo-way/2017/10/27/560357561/spains-prime-minister-asks-for-

direct-rule-authority-over-catalonia (last visited Dec. 1, 2021).

4. Catalan referendum: Clashes as voters defy Madrid, BBC N, Oct. 1, 2017,

https://www.bbc.com/news/world-europe-41457238 (last visited Dec. 1,

2021).

5. Sam Jones, What is the story of Catalan independence—and what happens next?,

T G, Oct. 14, 2019, https://www.theguardian.com/world/2019/

oct/14/catalan-independence-what-is-the-story-what-happens-next (last

visited Dec. 1, 2021).

6. Catalonia crisis in 300 words, BBC N , Oct. 14, 2019, https://www.bbc.com/

news/world-europe-41584864.