Voters in Catalonia will go to the polls on December 21 in an election triggered by the recent crisis over the region’s declaration of independence from Spain.
If separatist parities succeed at the ballot box it’s likely they will claim this as a legitimate mandate for independence. But this is not a sound interpretation of the international law of self-determination – and the result of the election cannot be seen as a proxy for independence.
Both those for and against the region’s right to claim independence from Spain argue that their position is grounded in international law. The Catalan government, prior to being deposed on October 27, claimed that the international right of all peoples to self-determination afforded the region the “right to independence” and the international legitimacy of their expectations – an argument supported by some commentators.
But self-determination and “a right to independence” are not synonymous. International law supports independence as a legitimate outcome of self-determination only under limited circumstances. There are three circumstances:
The self-determining territory is under foreign colonial rule.
The territory is subject to gross violations of human rights and humanitarian atrocities committed by the state.
The territory is excluded from the political process of the state.
Given that Catalonia is not a colony, post-Franco Spain has not committed gross human rights violations in the region, and Catalonia enjoys political inclusion at every level of government in Spain, it fails to meet these three circumstances. That means international law does not support Catalonia’s claim of an international “right to independence” under the current circumstances.
Quebec and Scotland
In the bids for independence of Quebec and Scotland, domestic political negotiation resulted in the Canadian and UK governments authorising referenda to be held over independence in each place. Holding a referendum does not necessarily give a region the right to secede if voters opt for independence, rather it creates an obligation on the parent state to act in good faith. There is no “automatic” right to secede created.
A landmark 1998 ruling in Canada on the issue of Quebec’s secession is a useful reference point here. For any independence referendum to be effective, the Canadian Supreme Court stated that where there is a clear answer to a clear question with a clear majority, a government cannot ignore the result. However, the extent of that obligation is for the government to enter into good faith negotiations with the region on the terms of departure – and these negotiations may not mean necessarily lead to independence.
Prior to the Scottish independence referendum in 2014, the Scottish and UK governments agreed to legally respect its outcome, and the appropriate constitutional powers were transferred to Scotland. Both sides accepted as a matter of law the consequences attached to the result.
In Catalonia, the independence referendum on October 1 was held outside the powers of the Catalan parliament – a position confirmed by the Spanish Constitutional Court. This is not to say that it was rebellion or sedition to pursue a referendum, rather it was beyond the Catalan government’s legal powers to unilaterally enact its consequences. Therefore, the result – which was in favour of independence – was not recognised either domestically or internationally.
Beyond the ballot box
Self-determination in democratic states is normally fulfilled within the constitutional framework of an existing state. The failure of separatist political parties to achieve constitutional amendments or agreements is not a denial of this right. Except in the extreme circumstances outlined above, relying on self-determination to provide an “automatic right to independence” is a dangerous misrepresentation of international law that threatens those states which adhere to democratic principles.
The electoral success of separatist parties at the ballot box does not give a legitimate mandate for independence. If separatist parties do win on December 21, it will not give Catalonia the right to secede. At best, it will require Madrid to engage in good faith dialogue with Barcelona on potential constitutional change in Spain.
None of this foregoes the possibility of the emergence of an independent Catalonia. There may be several compelling political or social concerns for fulfilling self-determination rights of the Catalans that could be presented as part of negotiations with Madrid. But there cannot be an ultimatum from the Catalan separatists that independence must be on the table in future negotiations.
It is T-minus 81 days until liftoff on my PhD research. I received and accepted my offer to study this week (Tuesday), and I’m still getting it into my head that this is really happening. Don’t get me wrong, I’m very excited and quite eager to get going – in fact, I’m not waiting to begin reviewing the current literature as you will see later. However, as I’m very familiar with the mountain climb that is a PhD (given my friendship with many colleagues who have made the climb), there is a certain sense of awareness about the sheer volume of work required and the toll it will take on one’s life.
Part of the requirements of the programme are regular progress updates on how the research is going. As a result, it got me thinking back to the blog here and what purpose it might serve as I go forward. I have decided to use it as a tool to document and communicate the journey to anybody interested in pursuing a similar endeavour.
As for the subject of the PhD, I have proposed to focus on what I, in the preliminary, refer to as an evolutionary approach to understanding the function of self-determination. I will be examining the legal relationship between ‘peoples’ and the State, the concept of sovereignty and legitimate authority, and the exclusive legal personality of statehood to which some sub-state groups aspire. This is borne out of previous research I have done regarding the Québécois and Scottish independence referendums. I am seeking to test the validity of restrictions on the exercise of the right of self-determination insofar as it may affect the territorial integrity of a democratically-inclusive rights-adhering nation-state. As such, there may be some terminology issues from time to time, and I hope to offer some clarity where I can. At present, a number of recent events have also contributed to the international legal and political landscapes, in particular the recent advisory opinion by the International Court of Justice on Kosovo (referred to the Court by Serbia).
The format will be fairly simple: every title will reference the day of the PhD, and the content will reflect two themes. The first will be some observations based on the previous day(s)’s research – specifically on the topic of the PhD itself. This is for the legally-curious who are into the material. The second half will consist of what my partner refers to as ‘life admin’ – the human cost of the project, where my head is at, and how pursuing this doctorate is affecting my personal life. Each post will conclude with a reference to one or two articles/treaties/documents that I will be reading and reviewing in the next post, along with any benchmark events that are of interest.
So, the blog is shifting slightly towards what one might call a bit of a ‘vanity project’, albeit an important facet to the PhD experience overall. I welcome all questions, criticisms, comments, and concerns that you might leave for me in the (moderated) comments section below.
One last point: I will also audio record these posts allowing for a more accessible format should you wish to give your eyes a rest.
This time has come and gone, though it remains to be seen as to what constitutional changes will be implemented – change that will only come after the next UK General Election in May.
However, many of the questions posed by the Scottish referendum, in conjunction with events in Ukraine (Crimea and the Eastern Regions) and so-called Islamic State (Syria and Iraq), have created a significant dearth of opportunity for considering what may, for some, be a straightforward question: What is a State?
More specifically, it is likely to be the case that my PhD will examine the role that international legal theory plays in the creation of new states, juxtaposed against the looming backdrop of practical reality and pragmatic geopolitical policies. (Fun stuff, I know…)
Today has been carving out some supplementary chapter headings as a roadmap for my research. I hope to use this template to formulate the content of the PhD application itself, which would then be submitted to a number of institutions for consideration. The key elements in deciding which universities to apply to comes down to which faculties contain relevant experts on this topic, capable of ensuring that I keep to both the project path and within the relevance of international/constitutional law. That said, I do have a couple of institutions that are top of that list in my mind…
To elucidate on the central motivation behind the PhD, I offer the following thought. The experience of Québec and Scotland showed a certain acceptance that a particular domestic constitutional arrangement can be made whereby a sub-state territory may gain independence and attain statehood without violence or conflict. The main idea here would be that the parent state would immediately give legitimacy to the newly-emerged state should the constitutional order be satisfied. However peaceful and civilised that arrangement may be, international law would have had little to no input on whether the international community at large would recognise the legitimacy of the emergent state. The prevailing declaratory theory of statehood takes only into consideration that a state has (a) a permanent population; (b) a defined territory; (c) government; and (d) a capacity to enter into foreign relations. (These are collectively referred to as the ‘classical’ or ‘Montevideo‘ criteria of statehood.)
There exists a competing theory of statehood – the constitutive theory. To date, it has been rejected by various courts (including the International Court of Justice in The Hague). At its core, the attainment of statehood status depends on the international recognition of a particular state by other states. As recognition is primarily a political decision, not a legal one, criticism for this theory is understandable – erstwhile-legitimate states may be denied a ‘seat at the top table’ and all the privileges that are commensurate to being a primary state actor in the international arena.
However, suggesting that there is no legal defined process under which a sub-state territory may rely upon for guidance (for which the current theory does not make account) leaves open the process to both political perversion and systematic abuse. In essence, even having the goalposts moved still systematically retains the seed of hope; the absence of any international legal process effectively removes the goalposts altogether. And the absence of hope is antithetical to human condition. Hence, non-state groups and foreign interveners take advantage of this lacuna in the law to devastating effect: consider so-called Islamic State’s intent to establish a Middle Eastern state. It is arguable that they may, under the current declaratory theory, already fulfil the criteria for statehood. This is despite the illegality of their territorial seizure or brutal oppression of opposition. This was equally so for the Crimean peninsula in Ukraine.
And so, I hope to consider the experience and legal research surrounding this conundrum in law that may on paper prohibit illegality and remain ambiguous on state creation but cannot account for the factual reality that faces us today. It cannot be that such a fundamental basis of human society – the state – should remain as elusive as it currently stands.
I’m very pleased to report that I have contributed to the devolution process in a submission to the Smith Commission.
It was a very short timetable to work to, and as such this paper is not fully worked up as it will be when I submit for journal publications. However, I wanted to share the original which is intended to be understood by all persons, not just those steeped in the typical language of law.
I hope this brings some understanding to those of you who read it, and I would very much appreciate any feedback you might have. Please consider sending me an email if you wish to keep your opinion confidential.
As WordPress does not allow me to attach a document (or I haven’t found out how to do that yet…), I have uploaded the document for your review at Academia.edu – a website for all manner of academics worldwide. The link is here:
You are the country of my birth, my youth and that beacon in my heart that reminds me that another way is possible where our individual and collective voices trumped violence and terror. Alas, our voices are now momentarily silent from the shock that has followed from the targeting of our soldiers on home soil. Our hearts have taken a blow as we consider the implications that the events in Québec and Ottawa have for our unique multicultural democracy.
As noted by MPs whilst locked down in the Parliament speaking to the world’s press, ‘ours is an open society that is welcoming for all’. There were no barriers preventing these individuals from storming Parliament Hill because that is not the Canada we want – one where our politicians and institutions reside behind fortified ramparts, only accessible after multiple security checkpoints. One Canadian journalist even stated that there is weekly yoga open to the public on the lawn out front.
We should remember that the casualties of these attacks have been two soldiers at home.
Our collective sorrow at the presence of political violence in Canada is understandable. I had grown up thinking of our soldiers as wearing the blue berets of peacekeepers. I enjoyed the positive reputation that the country of my birth afforded me when travelling elsewhere in the world. Having moved to the United Kingdom, I still get a prompt apology when an incorrect assumption is made based on my distinctly non-British accent. (To be fair, I always say there is no reason to apologise. I’m from Toronto. As Alec Baldwin quipped in 30 Rock: “It’s like New York, without all the stuff.”)
FLQ and the October Crisis of 1970
But this is not the first time that Canada has borne witness to such acts on home soil. In 1970, during the FLQ October Crisis, terrorists (I won’t even acknowledge their agenda for separatism – it is an insult to those separatists in Québec who act peacefully as one should in a just democracy) kidnapped a British diplomat (James Cross) and killed a Québec Provincial Minister (Pierre Laporte), and also set off almost a hundred explosive devices during their campaign. Ultimately, James Cross was released in exchange for safe passage to Cuba for the kidnappers. However, in order to deal with the crisis, the War Measures Act was invoked, suspending habeus corpus, and the military was deployed in Québec and Ottawa to re-establish order. This crisis was where Prime Minister Pierre E Trudeau famously stated: “Just watch me” in response to a question of how far he would be willing to go to deal with the matter.
During that crisis, Warrant Officer Class II Walter Leja of 3 Field Engineer Regiment was gravely injured whilst attempting to disarm an FLQ mailbox bomb. He was later awarded the George Medal by Queen Elizabeth II. A watchman, Wilfred O’Neill, was killed when another bomb went off at a Canadian Army recruitment office in Montréal.
The legacy of this crisis was such that violent political extremism was condemned as repugnant and unnecessary, and as testament future separatist efforts were pursued under the rule of law by peaceful means.
Oka: A Breakdown of Relations with First Nations
In 1990, following encroachment upon lands subject to claims by the Mohawk Nation and an attempt by Québec Police (Sûreté du Québec) to dismantle a barricade around that land, a stand-off ensued between the Canadian Military and the paramilitary arm of the First Nations, the Warriors. In a famous image from the tense events, a Native Warrior stood face-to-face with a Canadian soldier in an effort to provoke violence. Here is the CBC evening news report on that day:
What makes this distinct from the FLQ, and what gives pause to labelling the events as ‘terrorism’ is difficult relationship that has endured between the Government of Canada and the First Nations. Under the original alliances with the British Crown, the First Nations were recognised as ‘friends of the Crown’, as opposed to subjects – the status of non-native Canadians.
A colleague of mine who served in the Canadian Forces at the time was deployed to Oka. Conversing with him on the matter, he stated that it was the most difficult mission he had ever undertaken. Given that he was also deployed in the first Gulf War, I asked how this engagement differed. His answer was as stark as it was to the point: “When I looked down sight of my rifle, I realised I was aiming at a fellow Canadian. I’m not sure I could’ve shot.”
Sadly, during the initial police intervention, SQ Corporal Marcel Lemay was struck and killed by gunfire. The stand-off lasted 78 days, with the Mohawks and the military commander Lieutenant-Colonel Robin Gagnon (Royal 22e Régiment) negotiating for a peace. It should also be noted the intervention of the Mohawk women who intervened and ordered the Warriors to de-escalate tensions. However, this crisis formed the basis for further tensions in other parts of Canada with First Nations peoples. Much is yet to be resolved.
Post-9/11: Responding to the ‘War on Terror’
The events of 11 September 2001 in the United States prompted Canada to reorient our military efforts to support the American-led and ISAF/NATO operations in Afghanistan. Putting Canada ‘on a war footing’, Canadian military forces entered Afghanistan in late 2001, with the initial insertion conducted by the elite Joint Task Force 2 (JTF2).
On 17 April 2002, four soldiers from 3rd Battalion Princess Patricia’s Canadian Light Infantry (‘PPCLI’) were killed, and eight wounded, following a friendly-fire bombing by an American F-16 mistaking the Canadian’s live-fire training operation for a Taliban assault (the Tarnak Farm incident). These casualties were the first for Canadian Forces since the Korean War.
In another tragic first, on 17 May 2006 Canada suffered its first female servicemember’s fatality, when PPCLI Captain Nichola Goddard’s armoured vehicle was struck by RPGs.
The toll on our soldiers from the Afghan conflict was extreme. According to currently available reports, 158 soldiers were killed and 1,859 were injured or wounded. The Canadian public attitude towards the war shifted from supportive (from 2001-2005, only 1 in 5 Canadians opposed the war) to opposition (by 2010, 56% were opposed to the mission in Afghanistan). However, throughout the conflict, the dissent was mostly directed towards the political decisions and not targeted towards Forces personnel.
On 15 March 2014, the last Canadian soldiers in Afghanistan returned home.
On Monday (2014.10.20), two soldiers walking in a parking lot outside a veteran’s support centre were run down by a car driven by a 25-year-old man who was known to police for radical ideology and sympathies for the terrorist group ISIL/ISIS/Islamic State. 53-year-old Warrant Officer Patrice Vincent succumbed to the injuries he sustained in the attack. The other soldier is still in hospital. The perpetrator also died of injuries sustained when he was shot by Québec Police attempting to apprehend him.
Then, earlier today (2014.10.22), a gunman approached the National War Memorial in Ottawa and opened fire on the honour guard protecting the Tomb of the Unknown Soldier. Despite medical interventions by civilian by-standers, Corporal Nathan Cirillo died of his gunshot injuries.
The gunman proceeded towards the Canadian Parliament buildings, entering inside and reportedly firing more than thirty times. The Sergeant-at-Arms (typically a ceremonial post) for the Parliament, Kevin Vickers, intercepted and killed the perpetrator just outside the rooms where Canadian MPs were holding their caucuses. Reports have suggested that the federal police (RCMP) and Canadian Army are still looking for multiple suspects believed to be involved. Most of the capital was subject to lockdown until 2025hrs EST. Parliament Hill remains closed to the public.
The subtitle of this post is ‘A Eulogy for Innocence’. The innocence I speak of is that which all Canadians have in relation to our self-image as a tolerant nation inclusive of all that transcends the problems elsewhere in the world. This innocence is, unfortunately, one of youthful naivety. Canadians are today, perhaps more than at any other time, now realising that not everybody else in the world thinks fondly of our Northern paradise. Furthermore, we also must come to realise that our servicemembers experience real peril when we send them out on deployment. While these professionals carry the Maple Leaf on their shoulders, they represent the best of us: compassionate in the face of tragedy, defiant in the face of tyranny, and resolutely heroic in the face of danger. The True North Strong and Free.
When they come home, however, Canada should be the one corner of the earth where we all share in these values. They should not find themselves facing the possibility that their fellow citizens may pose a danger to their lives.
Living in south-east London, I was very close to where Fusilier Drummer Lee Rigby was murdered on the streets of Woolwich outside the Royal Artillery Barracks. The deranged acts of his killers were a result of similar radicalisation as had occurred with the attacker on Monday. (The gunman in Ottawa has not, at time of publication, been identified by authorities as having shared in radical ideology.) And it is further lamentable to consider that here in the UK, soldiers on home soil have had to be on guard against numerous threats in the past, including from the IRA. To see so many soldiers in uniform in public during the 2012 Olympic Games was disconcerting at first, but they did a wonderful job of securing the venues and providing assistance where needed.
Nonetheless, I think that any person serving their country should never have to hide that identity for fear of retribution whilst at home. But pragmatic security concerns have made it so. After all, rhetoric will be of little comfort to their family if practical measures could have saved a soldier’s life.
What makes me sad is that these measures that I have grown accustomed to here in Britain could possibly be necessary back in Canada now. The barriers outside Westminster Palace (British Parliament) and the security just to enter will need to be considered for Parliament Hill in Ottawa. Self-protection measures for soldiers in uniform in Canada will have to be developed in order to keep them safe when amongst the public.
But saddest of all for me is that after today’s horrific tragedy, is that my military friend’s psychological dilemma of even pointing his rifle at a fellow Canadian may no longer be a justifiable concern. When citizens take advantage of their mutual goodwill towards each other to commit heinous acts of violence, suspicion may be the legacy that lingers longest amongst us.
I sincerely hope that I am proven wrong.
UPDATE (2014.10.26): It is too early to consider how this week’s events could alter the national conversation that most Canadians know we must have in order to go forward from this tragedy. However, I wish to point out that I have never heard a more patriotic and emotionally-rousing performance of the National Anthem prior to any Hockey Night in Canada. Click here: Ottawa, Toronto, Montreal unite for stirring Canadian anthem (Courtesy NHL)