Learning from Catalonia: To secede or not to secede. What criteria should be used to judge the legitimacy of independence bids?

Photo by Jeremy Bishop on Unsplash

The standoff over Catalan secession from Spain continues, with independence leaders in jail and in exile and the Spanish government administering direct rule over Catalonia. The unsettling situation has split not only Catalans and Spaniards, but Europe as a whole. Yet beyond the ongoing pyrotechnics, if we pull back to the ten thousand meter level, we can see that this issue raises a number of bigger questions: When is it appropriate for a region of a larger geopolitical entity to secede? What criteria should be used to decide the legitimacy of an independence bid? These questions are relevant not only for the Catalan situation, but for other regions of Europe where secessionist tensions flare up on a regular basis.

The legitimacy of secession has long been a difficult subject for political scientists, theorists and scholars of international relations. Some have likened it to “a moral problem of public international law” in which, as with most moral issues, one person’s ceiling is another’s floor. In the 1990s, in the aftermath of the collapse of the Soviet Union, secession became a topic of heated debate over the fundamental question of “who has the right to govern whom and in what form”. Over the years, two basic positions have gained dominance: choice theory, which posits that there is a general right of secession that all polities are entitled to, as long as it is grounded in the will of the seceding majority; and just cause theory, which says that any legitimate right to secession must be in response to an egregious injury or harm that has been committed against the seceding polity — implying a burden on the secessionists to prove that the originary (“mother”) state’s claim over its sovereignty lacks legitimacy.

Both of these positions must convince three different audiences about the legitimacy of the secessionist cause: the local populace of the seceding polity, the populace of the mother state, and finally an international audience of witnessing nations. The “outside world” is a relevant audience, because no seceding nation exists in a vacuum. The breakaway entity must depend on at least some foreign nations and ideally the entire international community (including the United Nations and other international organizations) to recognize its nationhood and be willing to trade and associate with it, perhaps even coming to its defense if the mother country refuses to accept the breakaway. Clearly, the perceived interests of these three audiences are often unaligned.

One of the world’s classic treatises of secession, the US Declaration of Independence of July 4, 1776, acknowledged the importance of the international audience as one of the bases for legitimacy. In that much-revered document, author Thomas Jefferson wrote that “a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

Jefferson then proceeded to lay out the “just causes,” or what he called a “long train of abuses and usurpations” and “repeated injuries,” perpetrated by the “absolute Despotism” and “absolute Tyranny over these States,” aka the British monarchy. To prove the young America’s case, Jefferson claimed that he would “let Facts be submitted to a candid world,” and proceeded to offer a long list of complaints against the British crown covering more than 30 grievances and violations. The most famous of these was “imposing Taxes on us without our Consent,” but the text also included “plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people,” “dissolved Representative Houses repeatedly,” “cut off our Trade with all parts of the world” and more.

In more recent times, the various independence bids that occurred after 1989, when various polities exited the Soviet Union and Yugoslav Federation, underscored that a “just cause” standard based on human rights violations enjoys widespread legitimacy. The independence bid of Kosovo, which has suffered human rights violations at the hands of Serbia, has gained support from 23 out of 28 EU and 109 out of 193 United Nations member states. While not unanimous, Kosovo’s situation demonstrates the legitimacy of standing based on a “just cause declaration,” witnessed by the third audience of the international community.

Catalonia’s challenge

The case of Catalonia, however, lands politicians as well as political theorists in a cauldron of controversy. Catalonia also has its list of grievances, many of them culturally and historically rooted. But as in Scotland, few have argued that those grievances are sufficient to legitimize Catalonia’s secession bid according to a “just cause” doctrine.

There have not been any human rights violations, no plundering of seas or burning of towns. Catalonia enjoys very substantial autonomy in the cultural, linguistic, educational and governance fields. The “dissolution of the representative house,” i.e. the Parliament of Catalonia, occurred only after the unilateral declaration of secession. The main substantive grievance of independence proponents is linked to the fact that Catalonia is one of Spain’s wealthiest regions and, like wealthy regions in most federal states, contributes disproportionately to financing the Spanish budget. Spain’s constitutional court previously rejected an agreement that would have given Catalonia greater fiscal autonomy.

Unlike in Scotland, however, the central government of Spain did not agree to the holding of a referendum, and declared it illegal. In response, the barely pro-independence majority in the Catalan Parliament deployed a “choice theory” declaration, asserting a general right of secession conditional only on obtaining a simple majority of voters in Catalonia (which was achieved in the October 1, 2017, referendum, but with only 40% voter turnout). The views of the rest of the Spanish populace or the Spanish government, not to mention other EU member states and the international community, were not considered relevant.

Implications of secession by majority choice

We need therefore to look more closely at the “choice theory” of secession. Can it alone provide legitimacy for independence movements? What would be the consequences of permitting secession throughout Europe based on a choice theory principle?

Interestingly, Thomas Jefferson himself seemed to indicate serious doubts over “choice theory.” In the Declaration of Independence, he wrote, “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes.” In Jefferson’s view of “Life, Liberty and the pursuit of Happiness,” it is only when the mother state becomes “destructive of these ends” that the “Right of the People to alter or abolish it, and to institute new Government” surpasses the standard of not seceding for “light and transient causes.”

The lack of any substantive criteria for legitimizing a choice theory secession means that even the most abhorrent reasons cannot be challenged, such as when the southern states in the United States tried to secede in order to preserve the vicious institution of slavery. Without any requirement for minority rights guarantees, those opposed to secession (which could amount to up to 50%-1 of the population) would be exposed to very profound changes in their conditions of life against their wishes.

Moreover, permitting the secession of wealthy regions on a simplistic choice theory  principle poses a grave threat to redistributive mechanisms within nation-states. The impact could be realized well before actual independence, as countries keen to keep the lid on an independence movement may reduce redistribution as a way of placating voters in wealthier regions. The EU could see its geographic continuity permanently disrupted as EU membership bids by breakaway regions are vetoed by their mother nations, creating non-EU states across the continent, like the holes in Swiss cheese.

So choice theory alone is not a sufficient basis for legitimacy, and were it to prevail in Catalonia and snowball in other regions of Europe, it would act as a force for unraveling the EU.

Moving forward: criteria for legitimate secession within the EU

Structured properly, a rational discourse about regional identities and economic, social and cultural interests could be a source of strength in the EU. It could help drain away much of the peril from the current fractious conflicts. Yet the current procedures and philosophies regarding secession are highly divisive and potentially destructive.

The EU should design criteria for a rational and forward-looking foundation for secession of a region, just as it has created criteria for admitting new member states. It should make it clear that the overly-simplistic “choice theory principle” cannot serve as a basis for secession within the EU. However, the EU should offer new guidelines for a “just cause” secession process that can be initiated, even in the absence of human rights violations.

One such criterion might be when a dramatic change of relationship occurs between the originary state and the secessionist region. A real-world illustration would be Northern Ireland or Scotland seeking to secede from the UK following Brexit. When the UK exits the EU, it will drag the two regions out of the EU, despite the fact that both voted to remain. That will greatly affect the Scottish and northern Irish economies and their international relations; indeed, some analysts fear that Northern Ireland’s renewal of a hard border with the Republic of Ireland could precipitate the end of the “Good Friday” peace agreement and a return of “The Troubles”-like sectarian conflict. The implications are arguably so severe as to constitute a legitimate point along the continuum of “just causes.”

Additional criteria should be required, such as:

• The territory under consideration must have some significant historical, linguistic, cultural or other basis of cohesion and identity.
• The secessionist region must demonstrate a substantial and long lasting (i.e. not merely temporary) majority in the territory concerned. This should involve a minimum 55­­­—60% voting threshold for passage in any referendum, indicating a decisive vote in support of a clear new direction; as well as a certain minimum voter turnout threshold in order for the referendum to be valid (the 40% turnout in the Catalan vote was surely too low to bestow legitimacy on the final decision).
• The seceding territory must meet all the criteria for being an EU member state, including eventually joining the Eurozone (as already required by EU law), and equal treatment of ethnic, linguistic or other population groups (including those opposed to secession).
• A “just cause” secession from a member state should not automatically lead to exclusion from the EU, or allow a permanent veto on membership held by the originary/mother country.
• Agreement between the breakaway region and the existing member state on a reasonable financial settlement regarding public debt, social security financing, and other previous financial commitments. Particularly in the case of wealthy breakaway regions, a valid independence claim should ensure that the state left behind does not suffer a dramatic loss of wealth and standing.

At the same time, the EU should design mechanisms such that any increase in the number of member states resulting from secession ensures the continued effectiveness of EU decision making.

The EU should set out criteria that establishes a rational basis for determining the legitimacy of secession bids. Secession of regions with a legitimate “just cause” claim should be difficult to enact, but not impossible.

[Steven Hill is a journalist-in-residence at the WZB Berlin Social Science Center. He is the author of seven books, most recently Die Startup Illusion: Wie die Internet-Ökonomie unseren Sozialstaat ruiniert and Europe’s Promise: Why the European Way Is the Best Hope in an Insecure Age.]