Some considerations on the EU membership of Catalonia
Regarding the Catalan elections on the 27thof September, one of the issues that the different political parties, the media and the entire citizenry will debate, will be whether a hypothetical independent Catalonia would stay inside or outside the EU. The Advisory Council for the National Transition (CATN) has analysed this issue, knowing that, at that moment, a definitive answer cannot be given. That issue would need political negotiation and no decision would be automatic.
Catalonia's procedures and ways to accede to the EU would be decided taking into account the specific scenario in which the new state would be born, after a democratic vote with legal effects.
Catalonia is a territory that is part of an EU Member State and wants to stay in the EU, but there are no similar precedents. Scotland's independence could have been a useful precedent for Catalonia, but after the result of the 18thof September referendum when the 'No to independence' won, no precedent exists right now.
The Catalan process is currently an internal affair for the EU and will only provide an official assessment upon the demand of a Member State and on the basis of a "precise scenario". Beyond possible debate about the meaning of "precise scenario", in the current phase of articulating a democratic consultation, certainly the EU does not have the competence to take any decision – neither political nor legal – regarding this issue.
The European institutions cannot oblige any Member State to authorise a specific consultation in a part of its territory, since they have to respect the political and constitutional structures of each Member State, as well as their local and regional autonomy. All territorial conflicts have to be considered "an internal affair" and interference from other states is also forbidden. This situation does not prevent the EU and other third states to take notes, to follow the Catalan process with interest, to get their own perception about what is going on in the relations between Catalonia and Spain, and even to prepare future strategies.
For these reasons, we are in a moment when many actors at the international level are quite discrete, showing a will to understand the reasons for the massive citizen demonstrations that have spread widely. At the same time, they cannot take an official position regarding the current political moment.
The creation of new states has been a frequent phenomenon in the international arena, with particularly active periods – such as in the 1950s and the 1960s (decolonisation) and recently in the post-Cold War period, but nevertheless, according to international law a territory must fulfil some elements of statehood to be able to become a "new state".
The main actor of our International Community is still the state, which has full international subjectivity and the capacity to conclude treaties and to take responsibilities at the international level. States’ recognition could only be set out if the new state fulfils the requirements of having a stable population, a defined territory and a government that rules in a sovereign and independent way the basic public functions, so to say, that has effective control of its population and its territory.
International recognition would represent the acceptance that the new political entity is also a state and has a relationship capacity, for instance, to conclude treaties with other states. Such recognition is a unilateral political act that has legal consequences.
To a great extent, the speed of getting international recognition depends on the form, the moment and the preparation of Catalonia and its relationship with Spain. The recognition can take different forms: an explicit way through a legal and formal act of recognition, or an implicit way by setting up diplomatic relations or voting for the new state's accession to an intergovernmental organisation. We are thus within the field of legitimacy and diplomacy, not in the field of legality. Consequently, decisions are made according to political and contextual considerations.
Therefore, how could the Catalan process become legitimate in the eyes of the International Community? One way could be by achieving an agreement with Spain, since reaching such an agreement facilitates acceptance from third states. International actors are willing to accept territorial or political agreements through political understanding.
In front of a blocked situation due to the impossibility to set up political negotiations, another way to put an end to that situation would be the unilateral proclamation of secession, based on the democratic principle and the external self-determination principle.
If all the ways to reach an agreement fail, if a democratic and pacific process with legal guarantees has been followed, if a clear wish to negotiate has been shown but no negotiation could be held or any agreement reached, if Catalans did not accept keeping the 'status quo', the only option left is unilateral secession.
Within the EU Treaties, the democratic principle is included as a common value that has to inform each action of the EU institutions and of its Member States. However, this principle does not impose a particular behaviour or a specific legal obligation for the Member States.
Within the field of international public law, the principle of self-determination is recognised as a basic general principle, expressed in international treaties, in resolutions, in statements by the International Court of Justice, and in the specific practice of states. However, an unlimited right to unilateral secession does not exist.
Beyond cases of colonial domination, foreign occupation or racial discrimination, the recognition of the right to external self-determination as a last resort path is in a process of consolidation, being applicable to those nations who couldn’t exercise their right to internal self-determination, as explained in the widely-accepted doctrine of the Supreme Court of Canada (1998), with recognition by the International Court of Justice in Kosovo's case (2010).
Following that path, in order to obtain such recognition, the new state should show to the International Community that a legitimate cause is being pursued, that there are specific and substantial injustices, and that all the means to solve the political conflict have been tried without any success.
However, if international law does not grant an unlimited right to secession, it also does not ban nationalities from aspiring to become a new state. Doing so cannot be considered an internationally illegal act, as has been stated by the International Court of Justice in the Advisory Opinion on Kosovo's case.
The practice of states shows that the majority of the secession processes have not been condemned. Only cases where the secession implicated the violation of an imperative rule of international law have been considered illegal (such as the prohibition of using an armed force, for example). Nonetheless, this practice is heterogeneous, full of specific cases and cannot be generalised.
Taking into consideration the great importance given to a negotiation process with the Spanish Government, in the reports delivered by the CATN a distinction is made between the moment of the declaration of independence (the moment when the Parliament of Catalonia would manifest its will to become a state) and the moment that independence is proclaimed, that means the moment when the new state starts to effectively exercise its powers. Between the moment of declaration and the moment of proclamation, Catalonia would continue to be part of Spain and the EU, and the normative and institutional preparations should be undertaken for the moment of effective independence.
There must be taken into account the wide range of technical and political solutions that exist for being able to solve the different problems that might appear during the negotiation process. It is also foreseeable that, in the moment the Catalan process would put any essential element of the European integration process in danger, so to say, it would directly affect the functioning or some interests of the EU, the European institutions would intervene in a formal or informal way. We cannot forget that the EU and some Member States have a considerable persuasive and pressure force that may be exercised either towards Spain or towards Catalonia.
Meanwhile, the EU represents a guarantee to put some red lines or stop eventual abuses or discriminatory behaviours of the Spanish Government. Even though the EU is not currently an entity that encourages the appearance of new states, the secession is not prohibited by international nor by European law. In practical terms, it would be extremely difficult not to accept the results of a pacific and democratic process if the decision of the citizenship is to create a new state that wants to belong to the EU.
Some conditions must be fulfilled in order to be part of the EU. One is to be a European state, which respects EU values and fundamental rights. The conditions set out in the European Council of Copenhagen have to be met: be a market oriented economy that can assume the pressures of free competition; have the capacity to fulfil the objectives of the political, economic and monetary union; have stability and institutions that guarantee democracy, the rule of law and the respect of fundamental rights. Catalonia could fulfil all the requirements imposed by the EU without great difficulty.
At the moment the EU would have to take a definitive decision regarding the access of Catalonia, all the process leading towards such a moment would be analysed as well as the consequences of that decision regarding the future.
A main aspect is that Catalonia is already a part of the EU. And the situation of a territory that is part of the EU for more than 25 years is not the same as the situation of another territory that has never been part of the EU. It is not the same being inside, being part of the Euro-zone, having citizens, companies and public powers that guarantee rights and obligations based on European law, which participate in the European Parliament elections, which exercise their rights and fulfil their obligations.
The history of belonging, the acquired rights, the commercial, economic and labour inter-relations and, particularly, the legitimacy of a nationality who has expressed itself in a free, peaceful and democratic way in favour of the pro-sovereignty option, will have to be taken into consideration.
The EU is an integration process that affects the powers of states and the rights and obligations of its citizens and companies; which has different mechanisms to solve complex problems through negotiation. The peaceful solution of disputes is one of its reasons for existing and it can find an "ad hoc" solution that takes into account the interests of the EU, the Member States, Catalonia, its citizens and its companies.
The integration would not be automatic, since Catalonia is not a direct contracting party of the EU. Spain is at this moment the contracting party. In order to include Catalonia, the Treaties have to be reformed through unanimity among their members.
For this reason, the different scenarios must be analysed, while the possibility of starting negotiations with the Spanish Government is an essential element in all this process. There are four different scenarios analysed within the CATN report: the permanence scenario, the 'ad hoc' or quick access scenario, the ordinary access scenario, and the exclusion scenario. All these four scenarios are technically possible, but the option for one or another does not depend on legal but on political criteria and mainly depends on economic interests.
Economic growth and stability have justified the majority of decisions of the EU. Catalonia's geographic location should also be taken into account, as well as the fact that a significant amount of goods are transported through Catalonia's territory.
To sum up, if everybody thinks that Catalonia has to become a member of the EU, in an immediate way or after a transition period, it makes no sense to harm all the parties. Not finding a good solution would harm Catalonia, but it would also harm Spain, the EU itself, as well as its citizens and economic actors.
Definitive answers regarding EU membership of a hypothetical independent Catalonia cannot be provided at this moment; the final decision will be political, not legal. However, there are several technical solutions based on the existing legal framework, and the best solution has to be chosen. However, the main point is to really know what the wish of Catalonia’s citizens is.
by Francina Esteve Garcia
Professor of International Public Law and European Law at the University of Girona (UdG)