CataloniaIs the holding of a referendum to decide on the secession of a territory in accordance with International Law? The effects of the Recognition of States

Resumen

The right to self-determination is being claimed by nationalist movements that promote not only the exercise of this alleged right in the context of colonial or oppressed peoples, but also within the framework of democratic systems, and that demand the holding of referendums in which the population can decide whether or not to become a new independent State. This interpretation of a presumed right to decide may clash with the principle of territorial integrity enshrined in most of domestic legal frameworks and in International law. Recent history provides us with examples of the holding of such referendums, which have been internationally endorsed on account of emerging from an internal agreement or due to the concurrence of exceptional circumstances. The referendum is the democratic mechanism to legitimate the independence; a close and direct link exists between the self-determination referendum and the independence of the new state. The form and the context in which that referendum takes place are, without doubt, essential elements for that independence to gain international recognition later, and vice versa, the form in which independence takes place will grant international acceptance or not to the referendum held. Consequently, we can infer that the international community does accept some of these referendums and their independence processes through the institution of the recognition of states. On the contrary, the international community opposes, through non-recognition, referendums and secessions that break democratic constitutional frameworks and that pursue the independence of peoples whose right to internal self-determination is respected. Recognition takes particular relevance, not only to support, hold or reject the creation of a new state in the international scene, but also, in narrow connection with it, to validate or invalidate a referendum held with the intention to later declare independence. Therefore, when the intended independence is in opposition to national and international Law, the referendum will in principle be considered illegal (see referenda of Donetsk, Luhansk, Catalonia, etc). Finally, to determine precisely the effects that could cause the recognition or non-recognition of an aspirant state to gain Statehood, we will adopt a casuistic focus by examining some recent experiences.