The Right to Self-Determination - A legal analysis

Analysis by the Human Rights Commission of the Barcelona Bar Association

On January 8, the Barcelona Bar Association (Il·lustre Col·legi d’Advocats de Barcelona) published an analysis by its Human Rights Commission on the legitimacy of Catalonia's claim to statehood.

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 individual and collective. 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 the 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 – contemplated in the constitution, agreement or 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 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, it would already be independent. What is at issue is whether the Catalan people meet the required conditions for its right to self-determination to to be recognised, i.e. the condition as a people with the capacity to decide for itself whether to constitute a sovereign state. It should be remembered that the United Nations Charter and the aforementioned international treaties attribute the right to decide to the peoples, not to the states. Thus, 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 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 other than the expression of the will of the people expressed through its political representatives duly constituted as its 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 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 its 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 created a new legal entity. 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 the power to decide on its future, either within the State where it is integrated, or separately to form a new sovereign state, depends on the will of the majority of its citizens expressed democratically and peacefully, is an inalienable right of Catalonia as a national community.

Barcelona, January 2013