Geopolitics—and not international law—largely determines the level of independence achieved by a given people
Tens of thousands of Spaniards partook in “white” demonstrations over the weekend in protest of the independence drive of Catalonia, a semi-autonomous region in north-eastern Spain. An October 1 referendum to this effect, in which some 90% of voters reportedly favored full autonomy, descended into chaos when police deployed by the Spanish government to suppress the poll clashed with supporters of the bid, resulting in injuries to nearly 1,000 people.
Madrid vehemently opposed the move by Catalonian authorities and the country’s constitutional court has done everything to block its momentum: first, by banning the referendum itself and now by prohibiting the Catalan parliament from convening in order to prevent any declaration of sovereignty.
All eyes now turn to President Carles Puigdemont, who is slated to give a speech early this week amid intense international pressure from European capitals as well as from local elements that boycotted the independence vote, which they deemed to be non-inclusive. These opponents point to the fact that similar past efforts to secede from Spain never garnered the support of more than half of the region’s population.
The unfolding events are being watched closely by leaders in the Basque Country, an “autonomous community” situated on the north coast of Spain. Like Catalonia, it too has its own language and distinct culture and has expressed a desire to hold a referendum (the territory has a history of violent separatism, with the nationalist Eta group having carried out multiple attacks prior to agreeing to a permanent ceasefire in 2011).
In nearby Italy, leaders in the Lombardy and Veneto regions are both eyeing referendums on October 22. As with Spain, Italy’s constitutional court has designated any such polls illegal.
Throughout Europe, the sovereignty of many peoples remains in limbo—from Ukraine to Scotland; from Gibraltar to Corsica; from Kosovo to Cyprus. Even Brussels, the capital of the European Union, is bitterly divided between Flemish- and French-speaking populations, with the former represented by political parties seeking the creation of an independent “Flanders.”
Worldwide, there are some 150 disputes relating to territory, and, by extension, sovereignty—from Hong Kong to Quebec; from Tibet to Chechnya; from the Western Sahara to West Papua. In Iraqi Kurdistan, the population overwhelmingly voted “yes” to independence in a referendum on September 25 in the face near-uniform global disapproval.
One of the fundamental principles of international law is a people’s right to self-determination—to freely choose their political status without external interference. The 1933 Montevideo Convention on Statehood codified existing legal criteria for achieving independence; namely that any prospective nation would need (1) a permanent population, (2) a defined territory, (3) a functioning government and (4) the capacity to enter into relations with other countries. Notably, Article 3 of the statute provides that, “The political existence of the state is independent of recognition by the other states,” whereas Article 11 prohibits the use of military force to achieve full autonomy.
While the United Nations’ founding Charter further enshrined this principle, according to Eugene Kontorovich, a Professor at Northwestern University School of Law and a leading expert on international legal norms, “The content of the right is very thin and so everyone understands that this only affords people some form of limited self-rule and not necessarily a country of their own.”
As such, he explained to The Media Line, the creation of a new state “is entirely a political determination. In practice, countries generally reject the claims of those wanting to secede. What really matters, therefore, is the reality on the ground—and even then there are contradictions.
“Taiwan, for example, is a fully self-functioning state,” Dr. Kontorovich continued, “but it is not recognized [because of Chinese antagonism], whereas the Palestinians have widespread support despite [internal dysfunction].”
In fact, more than 130 countries have recognized the state of “Palestine” irrespective of the fact that the Palestinians do not maintain control over a fixed territory; they remain politically divided between the West Bank and Gaza; and their national movement has, since its inception, used violence against Israel to gain international legitimacy—which many argue together contravenes Articles 2, 3 and 11, respectively, of the Montevideo Convention.
Yet, rather than invalidating the Palestinians’ claim to independence, in Dr. Kontorovich’s estimation it constitutes an example of a national movement that does not meet the legal standards for statehood but is nevertheless is supported in this aim through geopolitical considerations.
By contrast, legal authorities point to two primary factors to account for the formation of of an independent Israel; namely, the Jewish People’s establishment of “facts on the ground”—the essential apparatuses for self-governance—in the decades before declaring statehood, coupled with UN Resolution 181 which in 1947 called for the partition of British Mandate Palestine into two nations, one Jewish and the other Arab.
Dr. Daphna Shraga, an international law expert who previously worked at the UN Office of Legal Affairs, agrees that the issue of sovereignty is subject to a case-by-case interpretation. “The Catalonia referendum,” she explained to The Media Line, “is a situation that would have broken up an existing state. Similarly, the independence vote in Scotland would have divided the United Kingdom. In these instances the rights of those seeking secession are less clear than those of so-called liberation movements, which in the past were widely viewed as anti-colonial forces and thus granted broad legitimacy.”
A major determining factor outlined by Dr. Shraga is whether or not the independence bid has the backing of the mother country. “So, for example, because Britain allowed Scotland to hold a referendum its results would have been recognized [across the board], whereas the opposite is true with respect to the Kurds, [who were opposed by Baghdad].”
Finally, she too believes that geopolitics plays a key role in the degree of success achieved by national movements, pointing to Kosovo’s declaration of independence from Serbia in February 2008. Since then, some 110 countries have recognized the country, including two thirds of the member states in the Organization of Islamic Cooperation (Kosovo is majority-Muslim) as well as the United States (which led a NATO military intervention on behalf of mainly ethnic Albanians against Yugoslavia during the 1998-99 Kosovo War).
On the flip side, Russia, China and India do not recognize the nation of Kosovo, which is largely attributable to a blanket policy of non-interference in external sovereignty issues fueled by their own internal fears over secession.
As a result, Pristina has not been granted full membership in the UN.
Accordingly, independence gains—and losses—are largely byproducts of political and security realities at a given time and space and not based on absolute legal norms or criteria. To paraphrase Orwell, then, while all national aspirations are equal under international law, some are evidently more equal than others in practice.