It is safe to say that international lawyers have had a mixed response to the prospect of

Catalonia independence. Whilst the Catalonia declaration of independence cites the right of
self-determination as ‘recognised in international law’, international lawyers themselves have
been split on whether that right even applies to Catalonia, and – if it does – what conduct the
right permits. In part, of course, this simply reflects the proclivity of lawyers to disagree on
every point, as well as the indeterminacy of international law more broadly. However, the
specific nature of this uncertainty can only be understood by reference to the history and
nature of self-determination as a legal right. This is because – as Martti Koskenniemi put it –
‘[d]uring periods of political transformation’ the goal of the right of self-determination to
‘reconstitute the political normalcy of statehood’. 1 In this sense, the right to self-
determination in international law is a profoundly conservative one, the function of which is
to defuse and domesticate political radicalism.

In order to understand the conservative force of the right to self-determination it is important

to separate the political and legal senses of its invocation. Whilst such a separation might
seem to ignore the fact that law is always and already political, in this instance it responds to
an important historical conjuncture. The concept of ‘self-determination’ developed in the
debates of the Marxist movements of the early 20th century. Primarily concentrated in
Western Europe, these movements had to reckon with the fact that their national states tended
to be multinational empires, possessing overseas colonies.

Although these debates were complex, schematically put, one side – most famously advanced
by Rosa Luxemburg – argued that the unity of the working class meant socialists should not
support nationalist demands. The other side, most famously comprised of Lenin and the
Bolsheviks, argued that since imperialism was an intrinsic part of capitalism it was necessary
to side with nationalist uprisings. Such uprisings represented ‘grounds for mass action and for
revolutionary attacks on the bourgeoisie’.2 Accordingly, the Bolsheviks argued for an
immediate ‘right to self-determination’– for all oppressed and colonial peoples. With the
victory of the Russian Revolution, this became the official policy of the Communist
movement.

It was in this context that a legal right to self-determination began to emerge. Crucial in this
respect was American President Woodrow Wilson, who – in his ‘Fourteen Points’ speech –
called for independence for the populations of the Russian Empire, Austria-Hungary, the
Ottoman Empire and Poland .The remaining colonies of the defeated powers were to be
subject to a ‘free open-minded and absolutely impartial adjustment’ based on the principle
that ‘the interests of the populations concerned must have equal weight with the equitable
claims of the government whose title is to be determined’. Wilson’s proposals ended up
embedded in the post-war Mandate System of the League of Nations, which placed former
colonies under the ‘tutelage’ of ‘advanced nations’ (Article 22(2)). This tutelage was to be
subject to a ‘sacred trust of civilisation’ and exercised for their ‘well being’ (Article 22(1)).
Mandates at different levels of ‘development’ would be subject to differing levels of
intervention, with different eventual paths to independence.

Accordingly, international law took the radical political demand of self-determination and
domesticated it. Instead, of revolutionary social transformation, the aim was integration into

1
Koskenniemi (1994), 'National Self-Determination Today: Problems of Legal Theory and Practice', 43
International & Comparative Law Quarterly 241 , at 246.
2
V.I. Lenin (1916), 'The Socialist Revolution and the Right of Nations to Self-Determination (Theses)',
available online at: https://www.marxists.org/archive/lenin/works/1916/jan/x01.htm
an emerging order of (liberal) nation-states. At the same time, through the language of
‘development’ and ‘civilisation’, the demands were robbed of all immediacy and made the
subject of complex legal and political governance. Such a situation continued even after the
end of the Second World War, when the Mandates became ‘Trust Territories’, and all
colonies were placed under a system of ‘tutelage’.

However, such a situation could not last. The national liberation movements chalked up a
series of major victories in the decades following the war. At the same time, the Marxist
influence on those movements increased, owing to Soviet support, and the role of indigenous
communist parties in leading and supporting national liberation. The connection was further
deepened by the Chinese and Cuban revolutions. By the 1950s more and more formerly
colonised states were entering the United Nations, and these states were becoming avowedly
anti-capitalist. Under this kind of pressure, the advanced capitalist powers dropped their
opposition to principle of immediate self-determination. By consequence, when the bloc of
Third World countries passed ‘Declaration on the Granting of Independence to Colonial
Countries and Peoples’, there were no objections. The Declaration gave an immediate right
for a people ‘subject to alien domination’ to decide their own future.

Even this high point of self-determination came with caveats. Self-determination was not to
affect the territorial integrity of a state without agreement. Under the principle of uti
possidetis juris administrative boundaries created by the colonial powers were granted
international status. As such, self-determination was to be exercised within boundaries drawn
up by the colonial powers. With these caveats, the explosive power of anti-imperialism was
able to be contained. A movement that threatened to turn the world upside down was
channelled into a project of building nation-states within pre-existing colonial boundaries.
Any attempt to give self-determination a wider economic meaning was heavily resisted.

Such domesticating functions have become even more important in the post-colonial period,
where the ‘right’ to self-determination has most fully emerged as a tool of political crisis
management. In the context of the collapse of the former-Yugoslavia, self-determination was
held to apply to non-colonial situations. At the same time, international institutions read self-
determination not simply as referring to the ability to form a new state, but also to minority
rights for a people within an existing state.

This was reiterated and systematised by Supreme Court of Canada in a case concerning
Quebecois independence. There the Court argued that a people inside an existing state – such
as the Quebecois – could have a right to self-determination. However, the court went on to
distinguish between internal and external self-determination. The former refers to the right of
a people to pursue their development within the framework of an existing state; the latter for
colonies – and people subject to alien domination – to secede and form a new state. In normal
circumstances, then, it will only be with the permission of the state that a people will be able
to secede. However, the court also considered that there was a third possibility that of
‘remedial’ secession, this would occur when a people is ‘denied meaningful access to
government to pursue their political, economic, social and cultural development’. 3 Should
such a situation occur, then a people might have a right to secede and form their own state.
Here, however, the bar is set rather high, both by Canadian Supreme Court and in later
interpretation. Essentially it will require either mass sustained violence directed against the
oppressed group, or dictatorial levels of political repression.

3
Reference Re Secession of Quebec [1998] 2 SCR 217, at 289
The ‘sliding scale’ model of the Quebec decision demonstrates the degree to which the legal
‘right’ of self-determination is designed to manage political and economic crises. In the most
extreme cases, where a movement is faced with full scale political violence, the law will
allow political transformations that retain the basic nation-state form, remaining the basic
coordinates of the existing order. Such violence can never be the structural or economic
violence of an exploitative capitalism, but rather refers to immediate physical and political
violence.

However, short of this, the right to self-determination is designed to continually domesticate

and depoliticise situations. Firstly, it recasts the wider political issues motivating particular
struggles for self-determination as issues of ‘minority rights’. Secondly, and linked to this, it
shifts the issue from the political grievances of an oppressed group towards negotiation and
procedure. In theory, a state could string out such ‘negotiations’ forever, with an oppressed
people being hard-pressed to prove – in the absence of murderous violence – that the
conditions are met for remedial violence. Thirdly, this proceduralism shifts the ground
decisively from political struggle to legal interpretation – it is for lawyers to determine when
a threshold has been breached.

In this way, then – like legal discourse in general – the net effect of the legal right to self-
determination is to channel struggles ‘upwards’ away from the grassroots and towards the
‘expert’ lawyers and politicians. The only way to avoid such a situation would be if there was
a civil war, which is extremely unlikely to happen in Catalonia. On this reading, the endless
‘debate’ amongst lawyers on Catalonia’s right to self-determination is no accident; it is built
into the legal right of self-determination itself.

Indeed, more broadly, we can see how this has played out in Catalonia. Whilst most legal
commentators have agreed that the Catalan people likely have some right to self-
determination, the situation is almost exclusively viewed through the lens of ‘minority
rights’. Any broader notion about the uneven distribution of austerity or the wider political
project connected to Catalan independence, is translated purely into the question of political
representation and issues like language rights. The framing of the Catalan struggle in terms of
self-determination has also meant a consistent side-lining of its social goals more broadly in
favour of focusing on its national goals. Accordingly, the demands of the radical and left-
wing elements within the independence movement have tended to be ignored, recast as a
romantic nationalism.

The net result of this is that most international lawyers have argued – in the words of Marc
Weller, who advised the Catalan government on its right to self-determination – ‘it is good to
talk’.4 The Spanish state has learned that by continually deferring the issue of meaningful
independence, it can comfortably avoid any possibility of ‘external’ self-determination.
Moreover, the issue of Spanish political violence cannot be taken on its own terms, but must
be constantly debated by lawyers against an external standard. This high-level of this
standard has provided the Spanish state with plenty of room for manoeuvre in terms of its
repressive activities; by combining police violence with formal electoral guarantees, the
Spanish state can continually fly under self-determination’s radar.

4
Marc Weller, Secession and Self-determination in Western Europe: The Case of Catalonia, EJIL Talk, 18th
October 2017, available online at: https://www.ejiltalk.org/secession-and-self-determination-in-western-europe-
the-case-of-catalonia/
Thus, the right to self-determination has done its job, co-opting a radical political moment
and transformation it into a manageable crisis.

It is easy to see why the Catalan independence movement has chosen to ground its claims in
the right to self-determination. International law appears as a kind of trump card beyond
political contestation and struggle, carrying with it a surplus of legitimacy. At the same time,
as a jus cogens norm of international law, self-determination appears as a way of
circumventing the (legal) objections of the Spanish state to Catalan independence. However,
the right to self-determination is not as apolitical as it appears. Instead, the legal right
emerged as a way to domesticate and depoliticise the national liberation movements. This has
fundamentally shaped how the legal discourse around the right to self-determination has
framed the Catalan independence struggle.

What, then, is the solution? Simply ‘abandoning’ the law is impossible; any independence
struggle will necessarily have to interact with international law. At the same time,
international law will constantly undermine and domesticate the struggle. A way must be
found to engage with the law that mitigates these problems. Crucial in this respect is refusing
to root or frame social struggles in the authority of international law, since to do so would
allow law’s depoliticising forces to dictate the path of the struggle. In other words,
engagement with international law must be a matter of tactics as opposed to strategy.

As such, it is necessary to foreground the political and economic dimensions of the

independence struggle in terms of political mobilisation; and appeal to international law only
in those concrete institutional settings where it can secure tangible gains. In other words,
Catalan independence should not be shown as flowing from, or being dependent on the legal
right to self-determination, rather it should flow from a radical programme of social
transformation. The legal right to self-determination is simply one tool to achieve that
programme, and must be subordinated to it.

Such an attitude has characterised the most radical of the movements against colonial and
imperial domination. They used legal institutions not as sites to abstractly vindicate their
legal entitlements, but rather as sites of social struggle. The Algerian National Liberation
Front, for example, would disrupt French courts through singing the Algerian national
anthem and flying the Algerian flags, and document the torture and repression that were a
necessary part of French colonialism. The General Assembly was frequently used by the
newly independent states to highlight the hypocrisy and bankruptcy of colonialism. This,
perhaps gives us an indication of how the various fora of the United Nations and human
rights bodies might be used. Self-determination can provide a platform and a space to
criticise the violence of the Spanish state, and put forward a positive social programme for
Catalan independence. In this way, the opportunities that law provides will not channel the
struggle into negotiation, management and depoliticisation