Many are asking whether the Catalan people have a choice – a right to self-determination. The more pertinent question, however, relates to Spain’s options. While negotiation is clearly one, Madrid would appear to assume that it has another: flat denial of Catalonian claims.

Historically, denial has been a standard approach adopted by central governments faced with dissatisfied regions. Serbia was implacably opposed to Kosovo’s separation, just as Pakistan forcibly resisted the creation of Bangladesh and Sri Lanka denied the claims of Tamils in the Jaffna Peninsula. As these cases imply, denial has an unfortunate association with destruction. When other avenues of engagement are precluded, resort to force becomes not just possible, but predictable, and even probable.

Of course there is another way. Especially in more recent times, there have been negotiated solutions. In Canada and the UK, for example, it is accepted that Quebec and Scotland may leave. When faced with separatist claims the central governments have sought to iron out the detail of a fair process, rather than arguing over the basic principle of free choice.

What is not generally recognised is that, for a modern liberal state, a negotiated solution may be the only practicable way forward. It’s a counterintuitive conclusion.

Central governments appear to hold the strongest cards. They generally have superior force at their disposal, and international legitimacy that a regional government does not. These may, however, not be the trumps they initially seem.

Mariano Rajoy attempted to use (rather limited) force on 1 October. The result was alarmed tweets from European leaders. International lawyers were also left wondering whether a state, respecting human rights, may forcibly prevent a population expressing its political opinion. Ultimately Spain’s representative in Catalonia found himself apologising.

So long as the Catalonian separatist movement maintains discipline, and remains peaceful, the “battlefield advantage” held by Madrid will likely remain more dangerous to the Spanish government than the separatists.

Another “nuclear option” is the imposition of direct rule over Catalonia. The removal of autonomy would raise two problems, however. The first is that the security services would likely be needed (with attendant blow-back). Furthermore, even if force could somehow be avoided, the move still risks playing – politically and legally – into the separatists’ hands.

Direct rule would be seized upon by Madrid’s adversaries as a demonstration of how Catalan identity and autonomy are not respected, and protected, within Spain. The removal of autonomy would also bolster Catalonian government arguments that it has a right to secede under international law. The matter is not legally cut and dried, but the removal of Kosovar autonomy by Slobodan Milosevic is part of the backstory to that territory’s bid for separate statehood, and other cases (from Eritrea to the Åland Islands) may also be invoked in support.

While states often assume the right and ability to stonewall a secessionist movement, the matter is not so clear. A modern state like Spain, one respecting human rights and integrated politically, economically and culturally into the European order, is going to have a very difficult time toughing it out against a well-organised and disciplined internal adversary.

Not only is non-engagement difficult, but – in the current context at least – it has often appeared self-defeating. Spain has, for example, held that its constitution bars Catalonian demands – including one that Spain honour a 2006 deal previously enacted by the Spanish parliament. This, of course, only begs the question: why not change the constitution? (And if the constitution is so sclerotic that it cannot be changed, then the Catalonians probably have a point, and the opportunity for yet deeper reform should not be missed.)

Worst of all, in bypassing an open political process and full debate, Madrid has failed to deploy much of its best weaponry (the weaponry that actually counts in a modern democracy). There are highly persuasive arguments supporting unity. These arguments have not been properly developed or presented. The sympathetic majority, which Spain claims in Catalonia, has not been encouraged to prove itself and summon its full voice. Many in Catalonia, who should be Madrid’s allies, feel their expression has been denied, and find fault with Madrid’s approach to date.

Finally, and perversely, the more that Spain denies political rights, the more it risks Catalans being tempted to prove these in the most extreme ways (most of us have done self-destructive things at some point merely to prove a capacity or a right).

The lesson of Quebec and Scotland is that, if a central government admits the status of an adversary, and engages positively, it has every prospect of success. The lesson of so many other conflicts is that a flat denial may fail, and tends to be associated with violence, human rights breaches and loss on all sides.

There is an old political aphorism that “you cannot beat something with nothing”. Spain has a strong case to make, but it has failed to seize the opportunity. Meanwhile, support for Catalonian independence has risen three-fold in a decade. This development, and its causes, cannot be ignored. Spain needs to engage now, before it is too late.

Paradoxically, accepting the potential loss of Catalonia is the course most likely to assure its retention. Some will bemoan any potential for a breach of “territorial integrity”, but there are deeper questions of integrity at stake than those merely relating to territory. Many will see the standing and maturity of post-Franco Spain on trial, and to a degree they will be right.


James Irving is originally from Melbourne, Australia. He wrote his doctorate at McGill University in Montreal (arriving in 1997, just two years after the last independence vote there). He is a lawyer who has practiced in both Melbourne and New York. He has convened the LSE LLM course “The International Law of Self-Determination” since 2010.