In
almost forty years of existence, the Human Rights Defence Commission
of the Barcelona Bar Association has been present in all debates of social and legal
relevance in our country, insofar as they could affect fundamental
human rights, both individually and collectively. At present, when
the people of Catalonia are set to take decisions that may determine
their future as a nation, the Defence Commission cannot be absent
from a fervent, enthusiastic debate that has come about on the right
to self-determination. That is why we wish to express our position on
the matter, obviously within the corresponding legal framework.
Firstly,
it is manifest that the right to self-determination is a basic,
universal right of all peoples, as per international law in force
since the establishment of the United Nations Charter (Articles 1 &
55) of 1945, and expressly proclaimed in Article 1 of the
International Covenant on Economic, Social and Cultural Rights
adopted by the General Assembly of the United Nations on December 16,
1966 and in force since 1976. In practice however, the right to
self-determination had been internationally recognised much earlier.
Consider the United States Declaration of Independence or the
creation of new states upon the dissolution of the Austro-Hungarian,
Ottoman and Russian empires at the end of the First World War. The
exercise of the right to self-determination has resulted in the
number of sovereign states quadrupling since 1900. Twenty of these
new states are the result of secession of a part of one state to
establish a new one. Specifically,
in Europe there have been 14 cases of secession since 1900: Norway
from Sweden (1905), Finland from Russia (1917); Ireland from the
UK (1922), Iceland from Denmark (1944), Lithuania, Latvia and Estonia
from the USSR (1990-1991), Slovenia, Croatia and Bosnia from
Yugoslavia (1991), Slovakia from Czechoslovakia (1992), Montenegro
from the Union of Serbia and Montenegro (2006), and Kosovo from
Serbia (2008). The process of self-determination and the creation of
a new sovereign state was different in each case
– based on a constitutional provision, a separation agreement or a
unilateral declaration of independence – but all with the ultimate
legitimation of the process through the majority decision of the
people, expressed freely and democratically in referendum.
One
particular doctrinal school in international law has defended a
restrictive interpretation of the right to self-determination,
considering this applicable only to processes of decolonisation.
There is certainly a clear legal framework consisting of a number of
United Nations resolutions establishing conditions and procedures to
apply this right to colonised peoples. This framework, however, has
not been sufficiently developed for the case of non-colonial
situations. But notwithstanding the lack of regulation of a right in
a specific situation, this does not mean denial of the right, since
the right has been formulated in general terms without establishing
any exceptions, as is the case of the right to self-determination.
Additionally, the International Court of Justice in The Hague ruled
in favour of self-determination as a universal right to be respected
by all states, erga
omnes,
in an advisory opinion
on the Wall in the occupied Palestinian territories in 2004.
Likewise, the ICJ replied in its significant Resolution
of July 22, 2010 to a request from the General Assembly of the United
Nations on whether the Unilateral Declaration of Independence
of the territory of Kosovo proclaimed on February 17, 2008 was in
accordance to international law, ruling that there is no regulation
in international law prohibiting unilateral declarations of
independence and that this declaration should therefore be considered
to be in conformity with international law.
In
the case of Catalonia, the exercise of the right of
self-determination is being denied by the government and most state
institutions in Spain, even opposing putting the question to the
people in consultation. This outright opposition is essentially based
on two arguments. First, the affirmation that the sovereignty lies
collectively in the whole people of Spain. The right to decide on the
separation of Catalonia from the rest of the state does not thus
correspond to the people of Catalonia separately as it is not a
sovereign political subject. The second argument consists of saying
that even if this condition were attributable to the Catalan people,
the secession of Catalonia from the Spanish state would in any case
be illegal as it would collide with current legislation, specifically
with the Spanish constitution, which does not recognise the right to
self-determination of any territory of the state, and which proclaims
in Article 2 “the
indissoluble unity of the Spanish Nation, common and indivisible home
to all Spaniards.”
Regarding
the first argument, this is what is known in basic logic as “Petitio
principii”
(begging the question).
It is self-evident that if the Catalan people were the subject of
sovereignty, they would already be independent. What is at issue is
whether the Catalan people meet the required conditions for their
right to self-determination to be recognised, i.e. the condition as a
people with the capacity to decide for themselves whether to
constitute a sovereign state. It should be remembered that the United
Nations Charter and the aforementioned international covenants
attribute the right to decide to the peoples, not to the states. In
this regard, the condition of the Catalan community as a political
subject with the right to decide cannot be disputed: a
one-thousand-year history, its own language, its own civil code, a
distinct social and economic structure, its own political
institutions, and a manifest will to maintain its own identity
expressed over centuries, fully endorse the national purport of
Catalonia, likewise recognised in the preamble of its Statute of
Autonomy, even in the version curtailed by the sentence of the
Constitutional Tribunal.
It
is true that the current Spanish constitutional framework does not
allow for the self-determination of Catalonia. We thus find ourselves
before a possible discrepancy between two legitimacies: that of the
current constitution and the democratically expressed will of a
national community. But it should not be neglected that in a
democratic society the law is nothing but the expression of the will
of the people expressed through their political representatives duly
constituted as legislative power. This intrinsically democratic
concept cannot assent to the sequestration of the will of the people
–in this case represented by the Parliament of Catalonia– in the
name of a coercively imposed legality. That is why we consider that
the Spanish government would have no legitimacy if opposing the
decision of the Parliament of Catalonia to give voice to the citizens
so as to freely express their majority will –whether affirmatively
or negatively– concerning the creation of a sovereign Catalan
state. If the outcome were affirmative, the Spanish government would
have no legitimacy in opposing a process of negotiation in order to
establish conditions of secession and to reach a common agreement on
its complex consequences. It would likewise have to make such
constitutional and legal amendments as necessary to make the process
orderly and equitable. This was the criterion established by the
Supreme Court of Canada on the validity of the secessionist
referendum in the province of Quebec in 1995. In its advisory opinion
of 1998, the Court recognised that a clear majority vote on a clear
question would democratically legitimise an initiative in favour of
secession and would compel the government of Canada to negotiate the
conditions of separation.
A
unilateral declaration of independence, proclaimed by the Parliament
of Catalonia, would be justified under international law if the
Spanish government were to prevent a ballot to consult the citizens
on the creation of a new state or if it refused to accept an
affirmative result. In the latter case, the declaration of
independence by Parliament would have immediate effect to bestow the
new state with political existence. Indeed, this would meet the
minimum criteria of permanent population, defined territory and
inherent political authority, which define a state as was established
by the Montevideo Convention on Rights and Duties of States, adopted
on December 26, 1933. The Convention provides that the political
existence of a state is independent of recognition by other states.
This principle, known as constitutive theory of the state, was
ratified by the opinion of the Badinter Arbitration Committee created
by the then European Economic Community on September 27, 1991, to
provide answers to legal issues raised by the split of the Socialist
Federal Republic of Yugoslavia. In its opinions, the
Badinter Committee asserts that the existence of states is a matter
of fact, without recognition by the international community as a
determining condition of statehood.
The
crucial issue of the juridical legitimacy of a unilateral declaration
of independence in conflict with legislation was settled by the
aforementioned resolution on Kosovo by the International Court of
Justice at The Hague. The resolution states that upon proclaiming
Kosovo an independent and sovereign state, the Kosovo Assembly was
not operating as an institution of self-government in the
pre-existing administration and within the limits of existing law,
but rather that it stood outside its scope and acted exclusively by
virtue of the powers conferred by democratic representation of the
people's will. The declaration of independence was not intended,
therefore, to produce its effect within the existing legal order, but
rather to create a new legal framework. In conclusion, the Court
considered that as there was no rule in international law that
prohibited it, and once it was confirmed it would be impossible to
negotiate with Serbia, the unilateral declaration of independence by
the Kosovo Assembly was not contrary to the international legal
order.
On
the basis of the above legal arguments, the Committee for the Defence
of Human Rights of the Barcelona Bar
Association holds
that Catalonia, as a national community, has the inalienable right
to decide on its future, either within the State where it is now
integrated, or separately as a new sovereign state, depending on the
democratically and peacefully expressed will of the majority of its
citizens, .
Barcelona,
January 2012
Cap comentari :
Publica un comentari a l'entrada