Abstract
In the face of the assertions that Basque and Catalan nationalism make regarding the right of self-determination (concealed behind a non-existent “right to decide”), the fact is that not only does international law not recognize a right of external self-determination (a right to independence, to become a state) in relation to the populations of territorial entities of democratic States but also that, respect regarding the territorial integrity and the political unity of such States continues to constitute the limit of that right.
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Notes
- 1.
As stated in Article 1 of the Treaty on European Union (hereinafter TEU), the creation of “an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen” (Article 1, second paragraph).
- 2.
Initially, the rivalry between Germany and France. In order to avoid it in the future, French Foreign Minister Schuman proposed, to his German counterpart, the creation of the European Coal and Steel Community (ECSC), the embryo of the current EU. As he pointed out in his Declaration of 9 May 1950: “The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims.
The solidarity in production thus established will make it plain that any war between France and Germany becomes not merely unthinkable, but materially impossible. The setting up of this powerful productive unit, open to all countries willing to take part and bound ultimately to provide all the member countries with the basic elements of industrial production on the same terms, will lay a true foundation for their economic unification.” (https://europa.eu/european-union/about-eu/symbols/europe-day/schuman-declaration_en).
- 3.
Of which the TUE “marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.” (Article 1, second paragraph).
- 4.
In accordance with the first paragraph of Article 1 TEU: “By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called ‘the Union’, on which the Member States confer competences to attain objectives they have in common.”
- 5.
CJUE, Recueil 1964, p. 1160.
- 6.
Contrary to the claims of Levrat, Antuens and Williams (http://exteriors.gencat.cat/web/.content/00_ACTUALITAT/notes_context/FULL-REPORT-Catalonias-legitimate-right-to-decide.pdf). As the authors themselves point out, this is a report at the request of the Government of Catalonia: “The four international experts that produced the present report have been invited by the Minister of Foreign Affairs, Institutional Relations and Transparency of the Government of Catalonia, to examine the legitimacy of the call for a Self-determination Referendum by the Catalan Government before the end of 2017 (the date of first of October has been announced since).” (p. 9). The italics are ours. There is no such “Minister” in the Government of the Generalitat of Catalonia. It is the Councillor of the Autonomous Community in the area in question. In short, a regional authority.
- 7.
See footnotes 85 to100 of the present work. On this subject see Chapter 4 of the present book: Fernández de Casadevante Mayordomo, “Secession through constitutional reform? A comparative study”.
- 8.
This is the case in Spain, with respect to the Basque Country of Ezeizabarrena (2017), who completely ignores International Law. With respect to Catalonia, for example, Indacochea (2017) (https://revistas.unc.edu.ar/index.php/recordip/article/view/18974). This author also reveals a total lack of knowledge of Spanish law and what has happened in Catalonia. His assertions about the existence of a Catalan “sovereignty”, his omissions about the multiple deficiencies (absence of electoral census, ballot boxes full of affirmative votes before opening the voting centres, the accredited possibility of voting several times, the complicity of the autonomous police in such illegalities, etc.) that characterized the “referendum” from which he draws surprising conclusions, his silence on the multiple violations of the rights of opposition deputies and of the Regulations of the Catalan Parliament by the nationalist majority concerning the approval of the laws annulled by the TC, etc., is a testament to this.
- 9.
In the terms employed by the UN General Assembly Declaration on the occasion of the 50th anniversary of the United Nations (A/RES/50/6, 9th November1995, http://www.un.org/es/documents/ag/res/50/list50.htm).
- 10.
The International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights, both of 16 December 1966 (BOE, n° 103, of 30 April 1977).
- 11.
Article 10, paragraph 2 of the Spanish Constitution states: “The rules relating to fundamental rights and freedoms recognized by the Constitution shall be interpreted in accordance with the Universal Declaration of Human Rights and the international treaties and agreements on the same subjects ratified by Spain.”
Given that the Spanish Constitution does not recognize the right of external self-determination, the argument that this article draws upon is unworkable. Nevertheless, it is a mistake present in the field of doctrine. For example, Indacochea (2017), p. 30, also forgets that an interpretation contra legem is not possible, that is, one that violates the Constitution. Vid. TC, Judgment 114/2017 of 17 October, legal basis 2.A.a), (BOE, no. 256, of 24 October 2017) and page 23 of the present work.
- 12.
This approach ignores the fact that the right of self-determination is not in the Spanish Constitution, so such an interpretation is impossible. Also, that such a hypothetical interpretation could never be contrary to what International Law says, which in this case is specified in the inexistence of a right to external self-determination, independence, statehood of territorial entities. See the previous note.
- 13.
The “nebulous false concept” used by Basque and Catalan nationalism (Ruiz Soroa (2014), p. 19, in the collective work of Arregui Aramburu (2014), Torroja Mateu (2020) The “right to decide” in International Law as grounds for exclusion of unlawfulness, 24 Spanish Yearbook of International Law (SYbIL), pp 281–285, http://www.sybil.es/documents/ARCHIVE/Vol24/13_Torroja.pdf.
- 14.
As is the case, regarding Spain, both the Proposal of Reform of Political Statute of the Community of Euskadi (Propuesta de Reforma de Estatuto Político de la Comunidad de Euskadi), approved by the Basque Parliament on December 30, 2004, and the Law 19/2017, of the Parliament of Catalonia, of September 6, of the Referendum of Self-determination (DOGC of September 7, 2017) and other acts adopted by the Catalan Parliament.
- 15.
This legal framework consists of the following UN General Assembly resolutions: Resolution 1514 (XV), of 14 February 1960, described as the “Magna Carta of Decolonization” and entitled “Declaration on the Granting of Independence to Colonial Countries and Peoples”; Resolution 1541 (XV), of 15 February 1960, which deals with the forms of exercise of this conceived right of self-determination: independence, free association or integration into a pre-existing state; and resolution 2625 (XXV) of 24 October 1970 containing the “Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”, which adds to the above modalities “or the emergence into any other political status freely determined by a people”. Finally, the “Declaration on the occasion of the fiftieth anniversary of the United Nations”, adopted by the UN General Assembly on the occasion of the fiftieth anniversary of the United Nations (http://www.un.org/es/events/decolonization50/docs.shtml).
- 16.
In this regard see Chapter 1 of the present volume: Perea Unceta, “The absence of any basis for secession in the right of self-determination of peoples and the serious violations of human rights”.
- 17.
Even if it had the possibility to do so, the ICJ did not pronounce on this regard in its opinion on Kosovo because “that issue is beyond the scope of the question posed by the General Assembly” of the UN (ICJ, Advisory Opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo, C.I.J. Reports 2010, paragraph 83). Cf., among others, López Martin and Perea Unceta (2018), pp. 125–193; Sterio (2018), p. 2; Day (2012), pp. 19–33; Christakis (2016); Walter et al. (2014); Kohen (2006).
- 18.
Declaration of the UN General Assembly on the occasion of the 50th anniversary of the United Nations, already cited. This limit is not altered by the ICJ’s assertion that the principle of territorial integrity is limited to inter-state relations. Obviously it could not say otherwise since it is the interpreter of International Law, not domestic law, which it cannot enter into (ibid., par. 80). It is the international norms on the right to self-determination that proclaim it.
- 19.
With regard to Quebec, in its Opinion of 20 August 1998 (http://www.droit.umontreal.ca/doc/csc-scc/fr/publ/1998/vol2/html).
- 20.
With regard to the Land of Bavaria, in 2016: “In the Federal Republic of Germany as a nation State based on the constituent power of the German people, the Länder (the federated states) are not sovereign. Therefore there is no room in the Basic Law (the German Constitution) for the individual secessionist aspirations of the Länder. Such aspirations violate the constitutional order.” (https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2016/12/rk20161216_2bvr034916.html). The German translation is ours.
- 21.
With regard to Catalonia, in its Sentence 114/2017, of 17 October (BOE, no. 256, of 24 October 2017).
- 22.
See notes 85 to 100 of the present work.
- 23.
In fact, only three currently contain it: the Constitutions of St. Kitts and Nevis (St. Kitts and Nevis), Ethiopia and Uzbekistan. St. Kitts and Nevis is a State constituted by both islands in the form of a federation, the possibility of separation (two-thirds majority required) being provided for in section 113 of the Constitution: “Separation of Nevis from Saint Christopher. 113.- (1) The Nevis Island Legislature may provide that the island of Nevis shall cease to be federated with the island of Saint Christopher and accordingly that this Constitution shall no longer have effect in the island of Nevis.” (www.wipo.int/wipolex/es/details.jsp?id=10191).
As for Ethiopia, the 1994 Constitution of the Federal Democratic Republic of Ethiopia regulates in article 39 the right to self-determination, including external self-determination: “Article 39. Rights of Nations, Nationalities, and Peoples 1. Every Nation, Nationality and People in Ethiopia has an unconditional right to self-determination, including the right to secession”. Article 39.4 adds: “4.The right to self-determination, including secession, of every Nation, Nationality and People shall come into effect: (a) When a demand for secession has been approved by a two-thirds majority of the members of the Legislative Council of the Nation, Nationality or People concerned; (b) When the Federal Government has organized a referendum which must take place within 3 years from the time it received the concerned council’s decision for secession; (c) When the demand for secession is supported by majority vote in the referendum; (d) When the Federal Government will have transferred its powers to the council of the Nation, Nationality or People who has voted to secede; and (e) When the division of assets is effected in a manner prescribed by law.” (http://www.wipo.int/wipolex/es/text.jsp?file_id=193667).
This article envisages a formal procedure similar to the one that led to the official separation of Eritrea and its transformation into an independent State. As in the previous case, it also requires a two-thirds majority.
Finally, article 74 of the Constitution of Uzbekistan provides for the right to secession from the Republic of Karakalpakstan: “The Republic of Karakalpakstan shall have the right to secede from the Republic of Uzbekistan on the basis of a nationwide referendum held by the people of Karakalpakstan.
- 24.
See the examples cited in notes 85–100 of this work.
- 25.
See pages 26 and following of the present work.
- 26.
It is illustrative in this respect that neither the Statute of Autonomy of Catalonia nor that of the Basque Country provide for this possibility in respect of the territories that make up the respective Autonomous Community.
- 27.
St. Kitts and Nevis, Ethiopia and Uzbekistan (see ut supra note 24). A fourth scenario (also unique in the case of a micro-State integrated into the European Union) can be added to Liechtenstein, which in article 4 of the Constitution provides for the possibility of territorial changes through legal means. Article 4 reads: “Changes to the boundaries of the territory of the State or of individual communities within it, the creation of new communities, and the joining of existing communities may only take place on the basis of a law. (The English translation is ours).
- 28.
A micro-state consisting of two islands (Kitts and Nevis); decades of civil war resulting in the secession of Eritrea from the parent state (Ethiopia) or an autonomous territory with its own Constitution (the Republic of Karakalpakstan in Uzbekistan).
- 29.
López Martin and Perea Unceta (2018), pp. 70–71.
- 30.
- 31.
Article 30 contains the general rule of interpretation, article 32 concerns supplementary means of interpretation (the preparatory work of the treaty and the circumstances of its conclusion) and article 33 concerns the interpretation of treaties authenticated in two or more languages.
- 32.
BOE, no. 142, of 13 June 1980. Consequently, the interpreter is obliged to use them.
- 33.
In accordance with which “1. The norms shall be interpreted in the proper sense of their words, in relation to the context, the historical and legislative background, and the social reality of the time in which they are to be applied, taking into account fundamentally the spirit and purpose of the norms”. Regarding this article, see Salvador Coderch (1991), pp. 19–26; Fernández de Casadevante Romani (1996), pp. 103–119; Sánchez Rodríguez (2005), pp. 373–377.
- 34.
Article 31 of the 1969 VC states: “1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended.”
- 35.
As international jurisprudence points out, the text of the treaty is the authentic expression of the common will of the parties. Thus, already the ICJ, in the case of Access to, or Anchorage in, the Port of Danzig, of Polish War Vessels (IPCJ, Serie A/B no. 43, page 144). Also the ICJ: “Interpretation must be based above all upon the text of the treaty.” (Territorial dispute between Libya and Chad, Reports1994, paragraph 41, page 22). This jurisprudence also reiterates the case law of the IPCJ in its advisory opinion on the Acquisition of Polish Nationality, it adds: “Having before it a clause which leaves little to be desired in the nature of clearness, it (the Court) is bound to apply this clause as it stands, without considering whether other provisions might with advantage have been added to or substituted for it.” (Acquisition of Polish Nationality, Advisory Opinion, 1923, P.C. I. J., Series B, No. 7, p. 20.)” (” (ICJ, Recueil 1994, p. 25). In extenso vid. Fernández de Casadevante Romani (1996), pp. 79–95; Yasseen (1976), pp. 1–114.
- 36.
ICJ, Western Sahara, Advisory Opinion, I.C.J. Reports 1975, par. 54.
- 37.
Art. 1.1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, both of 16 December 1966 and ratified by Spain. In both treaties, the aforementioned right is set out in article 1.1, the text of which is identical in both treaties.
- 38.
Paragraph 2 states: “2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.”
- 39.
Paragraph 3 states: “The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.” Non-Self-Governing Territories and Trust Territories are the subject of the legal regime under Chapters XII and XIII, respectively, of the Charter of the United Nations. They were non-self-governing territories whose administration had been entrusted by the United Nations to a particular State for the purpose of enabling that territory 1 day to attain self-government (self-sufficiency).
In connection with this article and its paragraphs see Chapter 1 of the present volume: Perea Unceta, “The absence of any basis for secession in the right of self-determination of peoples and the serious violations of human rights”.
- 40.
That is, “territories whose peoples have not yet attained a full measure of self-government” (Principle I). These are territories which are geographically separate from the country administering it and which are also distinct ethnically and/or culturally from the country administering it (cf. Principle IV).
- 41.
- 42.
In the first paragraph: “By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.”
- 43.
Ibid. See Chapter 1 of the present volume: Perea Unceta, “The absence of any basis for secession in the right of self-determination of peoples and the serious violations of human rights”.
- 44.
A/RES/50/6 of 9 November 1995 (http://www.un.org/es/events/decolonization50/docs.shtml).
- 45.
The italics are ours.
- 46.
This Conference became the current Organization for Security and Cooperation in Europe (OSCE). On this right the Helsinki Act states: “The participating States will respect the equal rights of peoples and their right to self-determination, acting at all times in conformity with the purposes and principles of the Charter of the United Nations and with the relevant norms of international law, including those relating to territorial integrity of States. By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development.” (https://www.osce.org/es/mc/39506).
- 47.
This does not prevent him from “wringing his hands” and declaring himself incompetent in the specific case as Indonesia is not a party to the dispute (ICJ, Case concerning East Timor (Portugal v. Australia), ICJ Reports 1995, paragraph 29).
- 48.
See Pons Rafols (2014a). With regard to the concept of “right to decide”, in the opinion of Ruiz Soroa it would be more appropriate to speak of the secession of a territory since, at the end of the day, “pro-independence nationalisms present their claim as if it were an exercise of the internationally recognized and sanctioned right to self-determination, rather than as what it is, as a demand for secession or separation of part of the territorialized population of a State from the whole”. (Ruiz Soroa (2014), in the collective work of Arregui Aramburu (2014), p. 19).
- 49.
Its constitution as a State is precisely the result of the exercise of its right to self-determination.
- 50.
Terms used by Art. 1 of both Covenants and by UN General Assembly resolutions taken up by the SC of Canada in its Opinion on Quebec: “126. The recognized sources of international law establish that the right of a people to dispose of itself is normally realized by way of internal self-determination, that is, the pursuit by that people of its political, economic, social and cultural development within the framework of an existing State.” (op. cit.). On the reverse side of this right, States have “the duty to respect this right in accordance with the provisions of the Charter” (Resolution 2625 (XXV) of 24 October, abovementioned.
- 51.
Depending on the type of State, centralised or decentralised (local, regional, general elections, etc.) and whether or not it belongs to integration systems (elections to the European Parliament, in the case of EU Member States), which are held at regular intervals, as stated in Article 3 of the Additional Protocol to the European Convention on Human Rights of 4 November 1950: “Article 3. The High Contracting Parties undertake to hold, at reasonable intervals, free elections with secret ballot, under conditions which ensure the free expression of the opinion of the people in the choice of the legislature.” (BOE, no. 64, of 14 March 2008).
- 52.
In the words of the Spanish Constitutional Court (TC): “For none of the ‘peoples of Spain’, to use the words of the preamble of the Constitution, exists a ‘right of self-determination’, understood, in the manner of Law 19/2017, as a ‘right’ to promote and consummate their unilateral secession from the State in which Spain is constituted (art. 1.1 Spanish Constitution). (STC 114/2017, 17 October, BOE, no. 256, 24 October 2017).
- 53.
From the first paragraph of the Preamble: “The Spanish Nation, desiring to establish justice, liberty and security and to promote the good of all its members, in the exercise of its sovereignty, proclaims its will to:…”
- 54.
Adding that it is the “Spanish Nation” that in use of its sovereignty proclaims the will that the constitutional text manifests. That is: “Wishing to establish justice, freedom and security and to promote the good of all who are part of it, in use of its sovereignty, proclaims its will of Guarantee democratic coexistence within the Constitution and the laws in accordance with a just economic and social order. Consolidate a State of Law that ensures the rule of law as an expression of the popular will. Protect all Spaniards and the peoples of Spain in the exercise of human rights, their cultures and traditions, languages and institutions. Promote cultural and economic progress to ensure a decent quality of life for all. To establish an advanced democratic society, and to collaborate in the strengthening of peaceful relations and effective cooperation among all the peoples of the Earth”.
- 55.
Constitution which, as the last paragraph of the Preamble states: “the Cortes (the Spanish Parliament) approve and the Spanish people ratify”.
- 56.
This is how the first paragraph of the Preamble begins: “The Spanish Nation,”.
- 57.
Article 1.2 of the Spanish Constitution: “2. National sovereignty resides in the Spanish people, from whom the powers of the State emanate.”
- 58.
Article 2 states: “The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards, and recognizes and guarantees the right to autonomy of the nationalities and regions that comprise it and the solidarity among all of them”.
- 59.
STC 114/2017 of 17 October, legal basis 5 (BOE, no. 256, of 24 October 2017). The italics are ours.
- 60.
Among others, Constitutional Court (TC), Sentence 114/2017, of October 17 (BOE, n° 256, of October 24, 2017) that declared unconstitutional “and consequently null” Law 19/2017, of the Parliament of Catalonia, of September 6, of the Self-Determination Referendum; Sentence 124/2017, of November 8, 2017. Appeal of unconstitutionality 4386–2017. Interposed by the President of the Government regarding the Law of the Parliament of Catalonia 20/2017, of 8th September, called “of legal and foundational transience of the Republic”, that declares nullity of the Resolutions of the Parliament of Catalonia of 27th October 2017, called “Declaration of the representatives of Catalonia” and “Constituent process” (BOE, n° 278, of 16th November 2017). See in the following pages, section III.B of this paper.
- 61.
Colonial Territories, Non-Self-Governing Territories, Occupied Territories. As the SC of Canada rightly states: “on the basis of the hypothesis that, in both cases, these peoples constitute entities intrinsically distinct from the colonial or occupying power, and that the ‘territorial integrity’ of these peoples, which for all practical purposes has been destroyed by the colonial or occupying power, must be fully restored (op. cit., para. 131). This is the case, for example, in Palestine and Western Sahara. On the latter see Soroeta Liceras (2001); Idem. in the collective work of Barreñada Bajo and Ojeda Garcia (2016), pp. 25–40.
- 62.
This is obviously not the case in Spain or Canada and it follows, a sensu contrario, from the penultimate paragraph of R 2625 (XXV) relating to this principle. This is a hypothesis, not verified so far in practice, pointed out by some sectors of the doctrine and by the ICJ. See Chapter 1 of the present volume: Perea Unceta, “The absence of any basis for secession in the right of self-determination of peoples and the serious violations of human rights”.
- 63.
They are referred to by the ICJ in its Advisory Opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo when, citing its own case law, it states: “During the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the peoples of non-self-governing territories and peoples subject to alien subjugation, domination and exploitation (cf. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 31–32, paras. 52–53; East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 102, para. 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pp. 171–172, para. 88).” (I.C.J. Reports 2010), para. 79.
- 64.
For example, the Canadian SC in its Opinion on Quebec: “131. the right to external self-determination, which entails the possibility of choosing (or re-establishing) independence, has been granted only to two categories of peoples (those under colonial rule or under foreign occupation), on the basis of the hypothesis that, in both cases, these peoples constitute entities intrinsically distinct from the colonial or occupying power, and that the ‘territorial integrity’ of these peoples, which for all practical purposes has been destroyed by the colonial or occupying power, must be fully restored ...” (op. cit., para. 131). Also the Spanish Constitutional Court (see STC114/2017, 17 October, BOE, no. 256, 24 October 2017).
- 65.
Again, the SC from Canada: “138. In summary, the right to self-determination in international law at most opens the way for the right to external self-determination in the case of former colonies, in the case of oppressed peoples, such as peoples under foreign military occupation, or also in the case where a defined group is denied real access to government to ensure its political, economic, social and cultural development. In these three situations, the people in question enjoy the right to external self-determination because they are denied the power to exercise, internally, their right to self-determination.” (op. cit., para. 138).
- 66.
A right, the exercise of which by the populations of such territories gave rise to “a large number of new States” (ibid.). The ICJ refers to its precedent case law in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, pp. 31–32, para. 52–53; East Timor (Portugal v. Australia, Judgment, I.C.J. Reports 1995, p. 102, para. 29; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004 (I), pages 171–172, para. 88.
- 67.
Reference to States with democratic systems. The quotation corresponds to the abovementioned “Declaration on the Occasion of the Fiftieth Anniversary of the United Nations”, adopted by the UN General Assembly Nations (A/RES/50/6, 9 November 1995, http://www.un.org/es/events/decolonization50/docs.shtml).
- 68.
Precisely for this reason, and to avoid it, in the process of decolonization of the African continent the new States that emerged from it resorted to the principle of uti possidetis that had been applied in Hispanic America in the nineteenth century. By virtue of that principle, the borders that had previously been administrative boundaries in the colonial era became the international borders of the new States. According to the ICJ: “At first sight this principle conflicts outright with another one, the right of peoples to self-determination. In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples.” (Frontier Dispute, Burkina Faso v. Mali), I.C.J. Reports 1986, page 567). In the doctrinal field, on this principle and decolonization see Sánchez Rodríguez (1988) and de Pinho Campinos (1979).
- 69.
Today, African Union.
- 70.
Article 3(b) lists among the objectives of this International Organization: “(b) defend the sovereignty, territorial integrity and independence of its Member States;” (https://au.int/sites/default/files/pages/34873-file-constitutiveact_en.pdf.
- 71.
So in the Frontier Dispute (Burkina Faso v. Mali): “22. The elements of uti possidetis were latent in the many declarations made by African leaders in the dawn of independence. These declarations confirmed the maintenance of the territorial status quo at the time of independence and stated the principle of respect both for the frontiers deriving from international agreements, and for those resulting from mere internal administrative divisions. The Charter of the Organization of African Unity did not ignore the principle of uti possidetis, but made only indirect reference to it in Article 3, according to which member States solemnly affirm the principle of respect for the sovereignty and territorial integrity of every State. However, at their first summit conference after the creation of the Organization of African Unity, the African Heads of State, in their Resolution mentioned above (AGH/Res. 16 (1)), adopted in Cairo in July 1964, deliberately defined and stressed the principle of uti possidetis juris contained only in an implicit sense in the Charter of their organization.” (ICJ Reports 1986, page 565 et seq.).
- 72.
To whom International Law (i.e., States) in no way recognizes a right of external self-determination. Only, among others, a right to autonomy.
- 73.
https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf. It is significant in this regard that this resolution was overwhelmingly adopted by 144 votes in favour, with only 4 votes against and 11 abstentions, demonstrating the consensus of the international community on this issue.
- 74.
López Martin and Perea Unceta (2018), p. 74.
- 75.
Ibid.
- 76.
Ibid., pages 84–85.
- 77.
A recent example of this is the referendum held in Scotland on 18 September 2014 with the agreement of the Scottish and UK Governments.
- 78.
The referendum, provided for in article 60 of the Constitution of the Federal Republic of Yugoslavia comprising Serbia and Montenegro, was held on 21 May 2006. Article 60, entitled “Departure from the State Union of Serbia and Montenegro”, in its first paragraph, envisaged the referendum to be held 3 years after the establishment of the Federal Republic of Yugoslavia formed by both States: “After the completion of the three-year period, the member States have the right to initiate the procedure for the change of their state status, i.e. to leave the State Union of Serbia and Montenegro.”
- 79.
The 1994 Constitution, adopted after Eritrea’s secession from Ethiopia, provides in article 39: “All nations, nationalities and peoples in Ethiopia have an unconditional right to self-determination, which includes the right to secession.”
- 80.
Singapore is a micro-state. A former British colony, it decided in a referendum in 1962 to merge with Malaysia. In 1963, Singapore achieved independence and joined the Federation of Malaysia but 2 years later, in 1965, it separated from the Federation due to disagreements with the federal government and became a sovereign state. Through an Agreement between the Government of Malaysia and the Government of Singapore on 7 August 1965, it was agreed that Singapore would cease to be a State of Malaysia and would become a separate and independent sovereign State of Malaysia. The Act of 1 June 1966 formalises relations between Malaysia and the Republic of Singapore.
- 81.
The referendum, held on 9 and 15 January 2011, was foreseen in the 2005 Peace Agreement between the Government of Sudan and the Sudan People’s Liberation Movement (SPLM) that ended 20 years of war. Simultaneously, a referendum was held in Abyei on the desirability of becoming part of Southern Sudan. (https://peacekeeping.un.org/sites/default/files/past/unmis/referendum.shtml). On the case of South Sudan see Vidmar (2012). See also Day (2012).
- 82.
This is currently the case with the Constitutions of Ethiopia (article 39), the Federation of Saint Kitts and Nevis (article 113) and Uzbekistan (which in article 74 provides for the right to secession of the Republic of Karakalpakstan) (see the text of these articles ut supra in note 24). Previously, some Constitutions of States of the former Eastern bloc formulated the right to secession in their Constitutions, although it was never exercised. This was the case, for example, in the USSR and the Republic of Yugoslavia.
- 83.
Article 89 expressly prohibits it: “No review procedure may be initiated or carried out when it concerns the integrity of the territory. The republican form of government may not be subject to reform”. In addition, Article 1 proclaims the indivisibility of the State: “France is an indivisible, secular, democratic and social Republic.”
- 84.
Article 288 of the Constitution prohibits any constitutional reform affecting the unity of the State: “Constitutional reform laws shall respect national independence and the unity of the State.”
- 85.
Germany does this implicitly, by declaring as unconstitutional parties that by their aims or activities tend to eliminate the free and democratic fundamental order or to endanger the existence of the Federal Republic of Germany (Article 21(2)): “Parties that by their aims or by the behaviour of their members tend to distort or eliminate the fundamental regime of freedom and democracy or to endanger the existence of the Federal Republic of Germany are unconstitutional. The Federal Constitutional Court shall decide on the constitutionality of the act.”
On the other hand, the Constitutional Court rejected in 2016 the possibility of a federal state (in this case, Bavaria) to call a referendum on independence, recalling that the constituent power resides in the German people, so there is no room in the Constitution for the “secessionist aspirations” of the federal states (https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2016/12/rk20161216_2bvr034916.html). On this basis, the German Constitutional Court did not admit the demand of an individual who wanted a referendum on independence in the Land of Bavaria, stating that there is no room in the Basic Law for the individual secessionist aspirations of the Länder. Moreover, “such aspirations violate the constitutional order” (ibid.). In any case, the referendum should be held throughout Germany. The German Constitution sets out the conditions for a change in the borders between the 16 Länder and specifies that “measures to reorganise the federal territory shall be adopted by a federal law requiring ratification by referendum”, in which the various states that make up the Federation must be heard.
- 86.
Article 1: “The Kingdom of Norway is a free, independent, indivisible and inalienable State.”
- 87.
Also, implicitly, article 53: “Any change in the number of cantons or in their status shall be subject to the approval of the electorate and the cantons concerned and to the vote of the people and their cantons”.
- 88.
Implicitly in Article 3: “No part of the people, no political party or other organization, state institution or individual, shall usurp the exercise of popular sovereignty.”
- 89.
Article 3: “The people and each citizen have the right to oppose any attack by force on the independence, territorial integrity or constitutional order of the State of Lithuania.”
- 90.
In article 2: “The territory, territorial waters and airspace of the Estonian State are an inseparable and indivisible whole”.
- 91.
Article 5 affirms the unity and indivisibility of the Republic: “The Republic, one and indivisible, recognizes and shall promote local self-government.”
- 92.
Article 4. “The territory of Finland is indivisible. The boundaries of the nation cannot be altered without the consent of Parliament.”
- 93.
Article 1: “The Kingdom of Norway is a free, independent, indivisible and inalienable State. The form of government is a limited and hereditary monarchy.”
- 94.
In Article 4: “The Russian Federation ensures the integrity and inviolability of its territory”.
- 95.
In this case implicitly, by affirming in article 2.1 “the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards”, on which the Constitution is based.
- 96.
López Basaguren in the collective work of Arregui Aramburu (2014), p. 42.
- 97.
Ibid.
- 98.
Ibid. In this case, the Supreme Court ruled in Texas v. White (1869) that the Constitution “in all its provisions, looks upon an indestructible Union composed of indestructible States. When, therefore, Texas became one of the United States, it entered into an indissoluble relationship. All the obligations of the perpetual union, and all the guarantees of republican government in the Union, were at once binding upon the state. The act that consummated its admission to the Union was more than a pact; it was the addition of a new member to the body politic. And it was final. The union between Texas and the other states was as complete, as perpetual, and as indissoluble as the union between the original states. There was no room for reconsideration or repeal except through revolution or through the consent of the states.” (Texas v. White (1869) 74 US (7 Wallace) 700, 72, (1868) p.725 and s.) See Chapter 4 of this volume: Fernández de Casadevante Mayordomo “Secession through constitutional reform? A comparative study.
- 99.
See in this sense the “Declaration on the lack of foundation in International Law of the referendum on independence to be held in Catalonia”, adopted by the Spanish Association of Professors of International Law and International Relations (AEPDIRI), on 19 September 2017 (http://www.aepdiri.org/index.php/actividades-aepdiri/propuestas-de-los-miembros/729-declaracion-sobre-la-falta-de-fundamentacion-en-el-derecho-internacional-del-referendum-de-independencia-que-se-pretende-celebrar-en-cataluna).
- 100.
- 101.
See judgement of the Constitutional Court (STC) 114/2917 of 7 October, already cited. See section B below.
- 102.
With respect to the “Basque people”, it is interesting to note that the “Proposal for a Political Statute of the Community of the Basque Country” (in Spanish, “Propuesta de Estatuto Político de la Comunidad de Euskadi”), although it did not define the concept of “Basque people” that it used, it did contain an exclusive definition of “Basque” in its article 5. 1, concerning the “Basque Diaspora”, allowing “all persons resident abroad” who have had their last administrative neighbours in the Community of the Basque Country, “as well as their descendants, if they so request” to enjoy the political rights that correspond to “Basque citizens”. For Basque nationalism, the “Basque Diaspora” is made up exclusively of those Basques who had to go into exile from Spain to America during the Spanish Civil War, and does not include the Basques who were obliged to leave the Basque Country because of the threats from the Basque nationalist terrorist organization ETA even during the current democratic period. This internal exile or banishment of between 150,000 and 200,000 citizens has resulted in the definitive modification of the electoral roll in favour of Basque nationalism in the Basque Country which explains the monopoly of municipal, provincial and autonomous institutions by Basque nationalism (of right-wing and extreme left-wing), represented in the Basque Nationalist Party (PNV) and Bildu (the former political branch of the terrorist organization). See on this regard, Alcaide Inchausti (2007). Also Council of Europe, Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights, on his visit to Spain and the Basque Country (5–8 February 2001), CommDH(2001)2/09 March 2001.
The current projects link it to obtaining Basque nationality (see Preliminary Title of the ‘New Political Status’ of the Basque Country, agreed by the Basque nationalist political parties Basque Nationalist Party (PNV) and Bildu, http://www.europapress.es/nacional/noticia-pnv-eh-bildu-acuerdan-titulo-preliminar-estatuto-reconoce-nacionalidad-vasca-20180530122532.html, May 30, 2018) and Catalan nationality (Article 7 of Law 20/2017, on Legal and Foundational Transition of the Republic, (DOGC, September 9, 2017).
“Euskadi” is the Basque name of the Autonomous Community of the Basque Country.
- 103.
The italics are ours. It is not true that all political ideas are legitimate in a democracy. As the ECtHR points out, there are political ideas and projects that are incompatible with democracy (fascism, communism, xenophobia, incitement to genocide, racism, etc.) that cannot claim the protection of the European Convention on Human Rights, and the State has the right to defend itself (see the section on the right to freedom of expression). See Lehideux et Isorni v. France, Judgement of 23 September 1998; Jersild v. Denmark, Judgement of 23 September 1994; Refah Partisi and others v. Turkey, Judgement of 13 February 2003; Herri Batasuna and Batasuna v. Spain, Judgement of 30 June 2009; Etxeberria, Barrena Arza, Nafarroako Autodeterminazio Bilgunea and Aiarako et al. v. Spain; Herritarren Zerrenda v. Spain, both of 30 June 2009. In this regard, with respect to Spain and in relation to the jurisprudence of the ECtHR vid. Fernández de Casadevante Mayordomo (2019); Idem. (2015), pp. 111–137.
- 104.
The Declaration was approved by 38 votes in favour (Basque Nationalist Party, Eusko Alkartasuna and Euzkadiko Ezkerra) and 23 against (Democratic and Social Centre, Socialist Party of Euskadi and Popular Party). The text was jointly defended by three parties of the Basque nationalist arc: the Basque Nationalist Party, Eusko Alkartasuna and Euskadiko Ezquerra (El País, 16 February 1990, https://elpais.com/diario/1990/02/16/espana/635122811_850215.html).
- 105.
Given that the “Spanish Nation” is the only subject that holds sovereignty (Art. 1.2 EC). Regarding the Basque Country, vine, TC, Sentence 103/2008, of 11 September (BOE, n° 245, Supplement, of 10 October 2008). With respect to Catalonia, vine. TC, Sentence 114/2017, of October 17, already cited.
- 106.
That is, until its constitution as State.
- 107.
On article 1. This “Proposal” was rejected by the Congress of Deputies on the occasion of the appearance of the President of the Basque Autonomous Community, Mr. Ibarretxe, representing the Basque Parliament, on February 2, 2005, to defend it. It constitutes the most reliable legal formulation to date of its ideology carried out by Basque nationalism approved by the Basque Parliament.
- 108.
The italics are ours. As can be seen, the first argument to support this hypothetical right of self-determination of the “Basque people” is the Declaration already examined by the Basque Parliament, of 15 February 1990, which proclaimed the right of the “Basque people” to self-determination on the basis of international law in point 1 (see ut supra, p. 24). These are statements with the appearance of dogma: they are not proven. On this particular see Fernández de Casadevante Romani (2006). Also, Arregui Aramburu (2014).
- 109.
As stated by the SC of Canada: “Consequently, neither the population of Quebec, even if it were described as a ‘people’ or ‘peoples’, nor its representative institutions, the National Assembly, the legislature or the government of Quebec have, under international law, a right to unilateral secession from Canada” (Opinion of 20 August 1998, para. 138).
- 110.
Debtor of its conception by Basque nationalist parties, the third paragraph of its Preamble goes so far as to attribute the materialization of the “exercise of the Basque people to decide their own future” to the citizens not only of the Basque Autonomous Community but also of the Foral Community of Navarre and of territorial areas of France that Basque nationalism includes in its patrimonialist conception of the Basque Country: “The exercise of the right of the Basque people to decide their own future is materialized from the respect for the right of the citizens of the different legal-political spheres in which they are currently articulated to be consulted to decide their own future, that is, respecting the decision of the citizens of the current Basque Autonomous Community, the decision of the citizens of the Foral Community of Navarre, as well as the decisions of the citizens of the Basque territories of Iparralde-Lapurdi, Behe Nafarroa and Zuberoa”. These “territories” have nor legal existence in France nor administrative recognition. They belong to the Basque nationalist conception of the territory of the Basque (nationalist) Country.
- 111.
Thus, in the Preamble of Law 19/2017 on the referendum on self-determination with references to International Law, to international norms on self-determination and even to the jurisprudence of the ICJ, although without citing any of the alleged jurisprudence that would support such theses.
- 112.
In violation of the Catalan Parliament’s own Rules of Procedure and the rights of parliamentary opposition groups that were deprived of their right to table amendments, they were absent and did not participate in the vote. Vid. ABC, 7 September 2017 (http://www.abc.es/espana/catalunya/politica/abci-parlamento-cataluna-aprueba-ley-referendum-201709062133_noticia.html); El País, 7 September 2017 (https://elpais.com/ccaa/2017/09/06/catalunya/1504727805_215709.html).
- 113.
Despite its unconstitutionality declared by the Constitutional Court (TC). See Sentence 114/2017, of 17 October, already cited and Order of 8 November 2017, BOE, no. 278, of 16 November 2017) and full of irregularities.
- 114.
This is the case of those adopted by the Catalan Parliament and listed in the third paragraph of the Preamble of the Law 19/2017 on the self-determination referendum: “The Parliament of Catalonia has continuously and unequivocally expressed the right of Catalonia to self-determination. This was expressed in Resolution 98/III, on the right to self-determination of the Catalan nation, adopted on December 12, 1989, and ratified in Resolution 679/V, adopted on October 1, 1998, in Resolution 631/VIII of the Parliament of Catalonia, on the right to self-determination and on the recognition of popular consultations on independence, adopted on March 10, 2010. More recently, Resolution 5/X of the Parliament of Catalonia, approving the Declaration of Sovereignty and the Right to Decide of the People of Catalonia, and Resolution 306/XI, adopted on 6 October 2016, on the general political orientation of the Government, have affirmed Catalonia’s inalienable and imprescriptible right to self-determination and have established a parliamentary majority in favour of independence”.
- 115.
Constitutional Court (TC), Judgement 114/2017 of 17 October, legal basis 2.
- 116.
That is, the Declaration on the Occasion of the Fiftieth Anniversary of the United Nations, adopted by the General Assembly on 9 November 1995, already discussed.
- 117.
Constitutional Court (TC), Judgement 114/2017 of 17 October, op. cit., legal basis 2.A.b. Therefore, it reiterates the existing international legal framework, as contained in the General Assembly resolutions discussed on the preceding pages.
- 118.
This principle is not respected either by the Parliament of Catalonia or by the Law 19/2017, of September 6th, on the referendum of self-determination, since this is clearly unconstitutional, as the TC determines in its Sentence 114/2017, of October 17th, already mentioned.
- 119.
As the Constitutional Court points out: “It is important to note that this serious attack on the rule of law, committed through the resolutions approved by the Parliament of Catalonia on 27 October 2017, also violates, with equal intensity, the principle of democracy. As we have pointed out once again, “in the constitutional State, the democratic principle of the unconditional primacy of the Constitution cannot be dissociated [STC 259/2015, FJ 4 b)]; nor does it allow any constituted power to adopt decisions that are intended to be irreversible or without return for the political community. It is precisely the reversibility of policy choices that is inherent to the idea of democracy [SSTC 31/2010, FJ 6; 163/2012, September 20, FJ 9; 224/2012, November 29, FJ 11, and 259/2015, FJ 5 b)]” (STC 114/2017, FJ 5, already cited).
- 120.
“Democracy, however, means more than majority rule. Constitutional jurisprudence exists in the broader context of other constitutional values. Since the Confederation, the inhabitants of the provinces and territories have developed close ties of interdependence (economic, social, political and cultural) based on common values that include federalism, democracy, constitutionalism and the primacy of law, as well as respect for minorities. A democratic decision by Quebeckers in favour of secession would jeopardize these ties. The Constitution guarantees order and stability and, as a result, the secession of a province cannot be carried out unilaterally “under the Constitution”. That is, without principled negotiations with the other participants in the Confederation, within the existing constitutional framework. (Opinion of 20 August 1998, [1998] 2 R.C.S., p. 220) The translation is ours.
- 121.
See, for example, Handyside v. United Kingdom, Judgment of 7 December 1976, para. 49; Golder v. United Kingdom, Judgment of 21 February 1975, para. 34.
- 122.
Fourth paragraph of the Preamble. Also in the fifth paragraph of the Preamble, in which an alleged historical legitimacy and the legal and institutional tradition of the “Catalan people” is made to converge with “the right of self-determination of peoples enshrined in international law and jurisprudence”, is not true because neither international law nor international jurisprudence enshrines the external dimension of the right of self-determination with respect to the territorial entities of democratic states.
- 123.
In the fifth paragraph of the Preamble of Law 19/2017, of 6 September, on the referendum on self-determination, to which the text is quoted. The comments we make in the following notes concern the statements made in that fifth paragraph of the Preamble.
- 124.
If there were, it would have cited them. However, that is not what the ICJ states in paragraph 79 of its Opinion on Kosovo (ICJ, Advisory Opinion on the accordance with international law of the unilateral declaration of independence in respect of Kosovo, ICJ, Reports 2010, paragraph 79, p. 403 f.). On the Opinion on Kosovo, from the Spanish perspective vid. Jiménez Piernas (2011), pp. 29–54; Gutiérrez Espada and Bermejo García (2010).
- 125.
The ICJ has never used the expression “right to decide” (an invention of Basque nationalism later adopted by Catalan nationalism to refer—without citing it—to the external aspect of the right to self-determination). On the other hand, this statement is not true either, since the principle of territorial integrity of the State continues to be its limit. In the words of the SC from Canada: “A State whose government represents the whole of the people or peoples resident in its territory, on the basis of equality and without discrimination, and which respects the principles of self-determination in its internal affairs, is entitled to the maintenance of its territorial integrity under international law and to the recognition of that territorial integrity by other States. Quebec does not constitute a colonized or oppressed people, nor can it be claimed that Quebeckers have been denied effective access to government to ensure their political, economic, cultural and social development. In such circumstances, the National Assembly, the provincial legislature, or the Government of Quebec does not possess, under international law, the right to proceed unilaterally with the secession of Quebec from Canada” (Opinion of 20 August 1998, [1998] 2 R.C.S., p. 222). The translation is ours.
- 126.
The limitations that the ICJ recalls in the case of Kosovo include all those relating to violations of international law. Apart from these, there are also those that are set out in the international standards themselves regarding the right of self-determination of peoples. This is the case with the limit that the resolutions of the UN General Assembly contain with regard to the external dimension of this right: respect for “the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction of any kind” (in its most recent version, contained in the Declaration on the occasion of the 50th anniversary of the United Nations, adopted by the General Assembly on 9 November 1995, already examined. See in this regard, with references to Spain and the Catalan and Basque cases, Jamar and Vigness (2010), pp. 913–928.
- 127.
Reference to States with democratic systems contained in the Declaration on the occasion of the fiftieth anniversary of the United Nations, adopted by the General Assembly on 9 November 1995, already discussed. In relation to this point, in its Ruling 114/2017, of 17 October, the Constitutional Court states: “It is obvious that any Spaniard who holds the political status of Catalan (art. 7 EAC) or, if preferred, the people of Catalonia as a whole, enjoys this participation under the protection of the Constitution, the Statute of Autonomy and the whole of the legal system, as the preamble to the Constitution states when referring to the “peoples of Spain” (legal basis 2.A.b). In a vein similar to ours, Sterio affirms that “International Law does not seem to support the right of secession of the Catalans, being by the internal Law and by the constitutional, democratic and/or political processes by which the subject of the proposal of Catalan independence should be governed” (2018, p. 3).
- 128.
As also stated by 400 members of the Spanish Association of Professors of International Law and International Relations (AEPDIRI) in the Declaration on the lack of foundation in International Law of the referendum on independence to be held in Catalonia, of 19 September 2017 (http://www.aepdiri.org/index.php/actividades-aepdiri/propuestas-de-los-miembros/729-declaracion-sobre-la-falta-de-fundamentacion-en-el-derecho-internacional-del-referendum-de-independencia-que-se-pretende-celebrar-en-cataluna).
- 129.
In Judgment of the Constitutional Court 114/2017 of 17 October, already cited. As reiterated in its Order of 8 November 2017: “Thus, the Law of the Parliament of Catalonia 19/2017, “of the referendum of self-determination”, is not only unconstitutional for incurring “in flaw of incompetence, having ignored the exclusive competences of the State in order to the popular consultations by means of referendum” (STC 114/2017, FJ 3), but also it is unconstitutional as a whole with all evidence and with maximum seriousness “by contradicting, in an explicit way, essential principles of our constitutional order: national sovereignty, residing in the Spanish people, the very unity of the Nation constituted as a social and democratic state under the rule of law, and the very supremacy of the Constitution, to which all public powers are subject and also, therefore, the Parliament of Catalonia (arts. 1.2, 2, 1.1 and 9.1 CE)” (STC 114/2017, FJ 5, BOE No 278 of 16 November 2017, legal basis 3, p. 110769).
- 130.
DOGC of 9 September 2017.
- 131.
Ibid.
- 132.
DOGC of 7 September 2017.
- 133.
Ibid. Article 3.3 of the mentioned Law reiterates it: “3. All authorities, natural and legal persons that participate directly or indirectly in the preparation, celebration and/or implementation of the result of the referendum are protected by this Law, which develops the exercise of the right to self-determination that is part of the current legal order”. The italics are ours.
- 134.
Ibid.
- 135.
Article 3.2 of Law 19/2017 reads: “2. This Law establishes an exceptional legal regime aimed at regulating and guaranteeing the referendum on self-determination in Catalonia. It prevails hierarchically over all rules that may conflict with it, insofar as it regulates the exercise of a fundamental and inalienable right of the people of Catalonia”.
- 136.
Spain’s Constitutional Court (TC), op. cit., legal basis 2.
- 137.
Ibid. The Spanish Constitutional Court does not miss the opportunity “to recall that respect for the ‘national identity’, the ‘fundamental political and constitutional structures’ and the ‘territorial integrity’ of the Member States are principles which are expressly proclaimed, at the highest level, in European law (Article 4 (2) of the Treaty on European Union).” (Ibid.).
- 138.
Thus, the Declaration of the Basque Parliament of 15 February 1990 (vid. ut supra p. 23 s.) and the Proposal for the Reform of the Political Statute of the Community of the Basque Country, approved by the Basque Parliament on 30 December 2004, already cited.
- 139.
Thus, in the Law 19/2017 on the self-determination referendum that pretends to be based on “a supposed ‘right to self-determination’ (art. 3.3) that is said to be ‘fundamental and inalienable of the people of Catalonia’ (art. 3.2), that, as it is stated, ‘is part of the legal system in force (art. 3.3)” (STC 114/2017, legal basis 2.A.b). Also in the resolution approved by the Parliament of Catalonia on 27 October 2017, which contains the express declaration of Catalonia as an independent state in the form of a republic, as a result of “the mandate of the people of Catalonia expressed in the referendum on self-determination of 1 October” and which begins in its declarative part with reference to the false construction based on that right as its foundation: “By virtue of all that has just been set forth, we, the democratic representatives of the people of Catalonia, in the free exercise of the right to self-determination, and in accordance with the mandate received from the citizens of Catalonia, WE CONSTITUTE the Catalan Republic, as an independent and sovereign State, governed by the rule of law, democratic and social...” (Spanish Constitutional Court, Order of 8 November 2017 (DOGC of 9 September 2017, p. 110762).
- 140.
In the words of the Spanish Supreme Court (Criminal Chamber), “a political claim masked by pseudo-legal arguments” (Judgement No. 459/2019 of 14 October, p. 216).
- 141.
Vid. ut supra, note 102. It is also the case of Indacochea (2017) who confuses the Catalan nationalist minority with the Catalan “people”, which appears in the title of his work (vid. op. cit.).
- 142.
It is not possible to know what those parameters are because the “Consensual Bases” (“Bases Consensuadas”, in Spanish) do not cite any. Nor is it possible to know where this recognition and identification as a “nation” comes from, or what the citizen majority referred to in the text is (Basque Parliament, Paper for the Updating of the Self-government of the Basque Country, Vitoria-Gasteiz, 4 September 2018, “Bases consensuadas y Votos Particulares”, p. 6).
- 143.
The nationalist “Nafarroa” (Upper Navarre) to differentiate it from the French Lower Navarre (“Baxe Nafarroa”-in the Basque nationalist territorial conception of the Basque Country, but inexistent in France neither in legal nor in administrative terms- in the text). Ibid.
- 144.
Ibid. The italics are ours. As can be seen, this “people with their own identity” of the Basque nationalists is structured on the basis of territories and lacks citizens. Also when it comes to “the possibility of establishing relations with the Foral Community of Navarre and with the Basque territories based in the French State, with whom they share language, culture and social and economic interests, etc.” It is important to note that these “Basque territories based in the French State” (Lapurdi, Zuberoa and Baxe Nafarroa) do not have any political nor administrative existence in French Law. They appertain to the Basque nationalist conception of the Basque Country because of the Basque language they minority share. The same shall be said with regard to the “Mancomunidad de Iparralde”.
- 145.
Expressions through which Basque nationalism excludes the fact that both the Spanish language and culture also pertain to “own” as regards that community.
- 146.
Basque Parliament, Paper for the Updating of the Self-government of the Basque Country, Vitoria-Gasteiz, 4 September 2018, “Bases consensuadas y Votos Particulares”, page 4 et seq.
- 147.
Spanish Constitutional Court, Sentence 103/2008, of 11 September, legal basis 4. Appeal of unconstitutionality 5707-2008. Interposed by the President of the Government against the Law of the Basque Parliament 9/2008, of June 27, of convocation and regulation of a popular consultation in order to obtain the citizen’s opinion in the Autonomous Community of the Basque Country on the opening of a negotiation process to reach peace and political normalization (BOE, n° 245, Supplement, of October 10, 2008). See, for example, STC 4/1981, of 2 February 1981, legal basis 3.
- 148.
Ibid.
- 149.
Spanish Constitutional Court, Judgment 114/2017, October 17, Legal basis 1 (BOE, No. 256, October 24, 2017).
- 150.
TC, Sentence 103/2008, of 11 September 2008, legal basis 4. Jurisprudence also applicable to the Catalan sovereignty process. In this case, the aforementioned Act 19/2017 (declared unconstitutional and void by the Constitutional Court in its ruling of 8 November 2017), article 2 of which, entitled “National sovereignty”, states: “The sovereignty of Catalonia resides in the people of Catalonia, and in Aran in the Aranese people, from whom all the powers of the State emanate”.
- 151.
Ibid. In other words, these are issues on which the Spanish people as a whole must decide.
- 152.
Spanish Supreme Court (Criminal Chamber), Judgement No. 459/2019 of 14 October, legal basis 17.1.5.2.).
- 153.
Spanish Constitutional Court, Judgement 103/2008 of 11 September, legal basis 4.
- 154.
Because “the referendum institute is a channel for the direct participation of citizens in public affairs”, over which the State has exclusive competence, “whatever the modality or territorial scope over which it is projected”. Moreover, the Spanish Constitutional Court remembers that not all matters can be submitted to autonomic popular consultation (being or not referendum), as it is the case of those “fundamental issues that were solved in the constituent process and that are subtracted from decision of constituted powers”. Consequently, “the redefinition of the identity and unity of the subject holder of the sovereignty is a matter to be channelled through the procedure of reform provided by the art. 168 CE, by means of the referendum of constitutional review” (Constitutional Court, Sentence of 17 October 2017, legal ground 3).
- 155.
More specifically, the Constitutional Court states that this law is the result of “a clear negation of the current constitutional order” (Constitutional Court, Judgment of 17 October 2017, legal basis 5).
- 156.
Ibid.
- 157.
Ibid., Legal basis 6.Thus, the parliamentary majority, with the support of the Bureau and the Presidency of the Chamber, used the provisions of Article 81.3 RPC “to improvise and articulate ad hoc an unusual channel in the course of which the possibilities of intervention and the rights of the other groups and Members were entirely at their discretion” (ibid.).
- 158.
ECtHR (Third Section), Inadmissibility decision of 7 May 2019 in Application No. 75147/17, Maria Carme FORCADELL i LLUIS and others v. Spain, paragraph 9).
- 159.
Ibid., paragraph 37.
- 160.
Constitutional review that cannot take place through any other channels than those expressly provided for in the 1978 Spanish Constitution.
- 161.
Spanish Constitutional Court, Sentence 103/2008, of 11 September, legal basis 4.
- 162.
Spanish Supreme Court (Criminal Chamber), Judgement No. 459/2019 of 14 October, legal basis 17.1.5.2.).
- 163.
Ibid. Because, “Our legal system does not tolerate the fragmentation of constituent power. It does not admit the modification of constitutional rules through the unilateral activation of a process of rupture in which the limits conceived to guarantee peaceful coexistence are presented as an obstacle to the imposition of a certain political project” (ibid., p. 218 s.).
- 164.
Ibid., page 214.
- 165.
Basque Parliament, Paper for the Updating of the Self-government of the Basque Country, op. cit. Democratic principle. Right to decide”, page 10.
- 166.
Ignoring that, as the Supreme Court of Canada pointed out in its ruling on Quebec secession, democracy is not the rule of the majority and that in every democracy the limit is set by law.
- 167.
Basque Parliament, Paper for the Updating of the Self-government of the Basque Country, op. cit. General principles of the Preliminary Title, page 12.
- 168.
See the text of the Opinion at http://www.droit.umontreal.ca/doc/csc-scc/fr/publ/1998/vol2/html.
- 169.
Paragraph 148 of the Opinion of 20 August 1998. The argument is further developed in paragraphs 33 to 106.
- 170.
The italics are ours.
- 171.
Paragraph 149 of the Opinion of 20 August 1998.
- 172.
Paragraph 151 of the Opinion of 20 August 1998.
- 173.
Ibid. The italics are ours.
- 174.
Paragraph 97 of the Opinion of 20 August 1998. Amendment that was not admitted by the Basque Government but in the terms of the “Proposal for a Political Statute of the Basque Country Community”. Consequently, negotiation is impossible. On the other hand, the State Government has shown itself willing to negotiate the amendment of the Basque Statute of Autonomy provided that an agreement is first reached among the Basques.
- 175.
Despite what is stated in Article 4.2 of Law 20/2017, of 8 September, on legal and foundational transience of the Republic (DOGC of 9 September 2017): “2. The principles and customs of general international law form part of the Catalan legal system. International treaties authorised by parliament are applied in preference to laws”.
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Acknowledgement
Study carried out as a part of the Research Project DER2016-76312: Legal consequences of the secession of territorial entities from a State, with particular reference to the human rights implications. Lessons for Spain, financed by the Spanish Ministry of Economy and Competitiveness, as part of the National Plan for Scientific and Technical Research and Innovation 2013–2016.
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Fernández de Casadevante Romani, C. (2022). The Right to Self-Determination: An Interpretation from Spain. In: Fernández de Casadevante Romani, C. (eds) Legal Implications of Territorial Secession in Spain . Springer, Cham. https://doi.org/10.1007/978-3-031-04609-4_3
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