How Can a Region Legally Claim Independence?


This article is written in conjunction with IEU Law Society.

By Martina Al Rifai Hajjo

Catalonia’s desire to claim its independence has been the recent talk of the town, yet no one seems to be discussing how exactly the region can achieve that. When a region claims independence, there are two things to consider: how it claims independence and how it can legalize its claim. So, you want to know if a region can gain legal independence from Spain? Read on to find out! 

Claiming independence 

When a state wants to claim independence, it will normally begin by calling a referendum. Most often, it is unofficial, as the region would be deciding to hold it against the status quo of the nation itself. This is done to show how much support the movement has and is, essentially, a display of the people’s unity. 

Now, while holding a referendum is important, there are four main facets that need to be present for a region to claim independence and become its own state. It is important to keep in mind that by claiming independence, the region is already attempting to establish itself as a new state. That is, they are seeking “people, territory, a government, and the ability to conduct relations with other states on a sovereign basis.” The people would be the citizens of the region, the residents. A territory would include solid borders. A government would be the body that effectively runs the territory and people. Lastly, the ability to have relations would allow for state-to-state relations to help in international trade and recognition. 

Recognition is an interesting topic, as it is a necessity for regions wishing to claim independence or statehood. This is because international recognition, specifically by the United Nations (UN), is what gives a country “legitimacy in the international community.” Why, you might ask? It is because being recognized by the international community as a state legitimizes the state’s claim, allowing it to access the International Monetary Fund (IMF), world trade, UN benefits, and more. So, although it is not clearly “laid out” in international law, “a territory essentially becomes a sovereign state when its independence is recognized by the United Nations.” 

Without this, a region’s claim for independence would hardly matter, let alone be significant or lead to a drastic change. However, it must be questioned whether recognition is necessary for a state to really be considered a state. Some countries recognize states simply because they exist, while others believe only formal recognition makes a state a state. At times, some countries even simultaneously recognize “true” and “de facto” governments or states within a region. 

For a state to be a state, the claim of statehood should be a legal one. 

Legality of the claim 

It is difficult to obtain a solid territory and borders without infringing upon another current state’s territory. For one territory to become a new state, “another already existing state must lose some of its territory.” That would “violate the laws and norms of territorial integrity,” as a country would be losing a part of its territory, which it is sovereign over, simply to pass it on to another authority. This could very likely create not only physical loss but also economic loss for the country, which explains why some countries are very hesitant to hand over authority when a region claims independence. 

Fundamentally, “there is no clear legal path to obtaining sovereign statehood,” and certainly no “legally established mechanism for who determines whether a territory becomes a sovereign state,” leaving it up to the hands of the territory itself and the country it is ‘detaching’ from. No one person, state, or group can tell a sovereign state what to do with its land or people, and so if a sovereign state decides to deny the independence of the territory trying to detach, we often see conflict. This is why successions often take on a militant nature; when they are left without a legal outlet to withdraw, they will often end up using force.

Even if international law doesn’t “specify that a territory can’t declare independence,” the legalization of a state’s independence is more a question of the recognition of its statehood, which is in the hands of both the country the region is separating from and the UN. However, the UN would only recognize a new state if the country the territory is leaving has also granted recognition. Therefore, to have legal independence, you need to be authorized by the sovereign state you are detaching from.

All in all, gaining independence is hard, and ensuring it is within legal boundaries is even harder, though not impossible. The question remains, however, as to whether Spain will grant Catalonia independence in the years to come, along with other territories’ battles for independence around the world, such as Kurdistan’s current issues with gaining independence from Iraq, Iran, Syria, and Türkiye. Will they succeed? 

Cover image by: Josep Lago / AFP – Getty Images

IEU Law Society
IEU Law Society
The IEU Law Society brings the legal world closer to our university's student body.

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