International law and statehood: a case study of Catalonia

Abstract

This study examines the adequacy of the existing international law framework on statehood and state recognition, and the extent to which it facilitates the emergence of new states, using Catalonia as the case study. It considers the two theories of statehood and recognition, namely, declaratory and constitutive, and how they aid or fail the emergence of states in international law, the influence of international politics in modern international law, and the key players. It is further a comparison of selected jurisdictions that have successfully obtained statehood and recognition from other states, a review of the basis of their success, and lessons drawn in support of statehood and to propose suggestions for refining international law. Five main research questions were investigated, namely: i) what is the international legal framework on statehood and state recognition, ii) to what extent are the international law theories on statehood and state recognition adequate in state creation?, iii) to what extent does Catalonia’s claim for statehood adhere to the international law criteria for statehood and recognition?, iv) What is the experience of recognition for Eritrea, Kosovo and South Sudan in comparison to Catalonia?, v) what lessons can be drawn from the experience of recognition of other states? The study contends that the two theories of statehood and state recognition, i.e. declaratory and constitutive, are the foundation of international law on statehood and, to a larger extent, contradict each other, with no definitive stance on which of the two theories is accepted without exception in international law practice of states. The basis of the declaratory theory is the Montevideo Convention on the Rights and Duties of States 1933 as the criteria for statehood. In contrast, the constitutive theory derives its roots from recognition. The application of the two theories in state practice is closely intertwined with the politics of international law, where states focus on state-centrism and individual states’ interests when deciding whether to recognise an emerging entity’s statehood, as well as on human rights and good governance, among others. Institutions like the United Nations and the European Union also play essential roles in international law regarding statehood and state recognition. Nonetheless, from examples of accomplishment of statehood and recognition from other jurisdictions, this study concludes that there is still a possibility of statehood for Catalonia but, this can only be attained only through dialogue and that, Spain is involved in the processes, specifically, the amendment of Articles 1, 2, 96, 148 and 155 of the Spanish Constitution to acknowledge Catalonia’s right to secession and allow a general referendum by all Spanish people.