[Texto leído en el Palacio de las Naciones, Ginebra, el 20/03/2018, durante el Consejo de Derechos Humanos de Naciones Unidas]
What can be done if a political community wants to become an independent state in the 21st century?
This is what the Catalans have been asking for more than a decade, these last ten years, in a massive way, citizens and institutions, leaving aside the long history of the Catalan pro-independence movement which started more than a century ago.
They ask themselves: What do we have to do if we want to be an independent state following a democratic procedure and without breaking the law in a Western context?
A decade ago it seemed that there was an answer to this question. It was necessary to follow the paths of Quebec and afterwards Scotland in order to know if there is a majority will for independence, through a referendum, and if this was the case start negotiating with the central government to concrete the details of the secession.
Too easy! Too civilized! At least for Spain that has refused to hold a referendum on the independence of Catalonia, ignoring the demand of 80% of Catalan citizens in favor of an agreed referendum on the issue.
The contémpt for the recognition of this democratic will is the same as its historical denial of the existence of a political community called Catalonia, with a will of its own that, for many Catalans, and for many observers, is nothing but a stateless nation.
In the Spanish context, the distinction between nation and state is practically impossible. Ignored by politicians, unknown by citizens, denied by the Constitutional Court that, in this recent years, has modified the constitutional distinction between regions and nationalities emptying it of all content.
But, let’s go step by step. What has happened in Catalonia these last ten years? What has to do with the right to self-determination?
The origin of the sovereignty process is often placed in 2010, more concretely, in the month of July when the Spanish Constitutional Court declared unconstitutional fundamental parts of the new Catalan statute, the new Home rule, its fundamental law.
However, I place this starting point four years before. In December 2005 a civic platform of more than 700 organizations of any kind was created in Barcelona with the name: Plataforma pel dret a decidir, “Civic Platform for the right to decide”.
The first great event that this Platform organized was a demonstration with the motto: “We are a nation and we have the right to decide”, which was a completely unexpected success for everyone, including its organizers. It was the first mass demonstration of the several demonstrations that has happen in these ten years in Catalonia and that have gathered hundreds of thousands of people, probably more than a million in some of them.
It was the first time that the demand in favor of the right to decide was claimed in the streets of Catalonia. A right to decide that has led absolutely the political life of Catalonia, and to a lesser extent of Spain, in these ten years. It will be impossible to explain the history of Catalonia of this period without mentioning it. A right to decide which was, first, claimed by citizens. Then assumed by the political parties in their electoral programs. Then claimed institutionally in Parliament through various solemn statements. A movement clearly bottom up which has nothing to do with a strategic movement of the elites or with populism. A right to decide which has been tried to be exercised in different ways, as I will explain in a moment, even if only partially achieved.
It must be remembered that these first demonstrations demanded that the Statute of Catalonia, the Home rule, be decided in accordance with the will of the Catalans. In February 2006, when that first demonstration took place, the proposal of new statute approved in the Catalan Parliament with the support of 89% of the Catalan MPs, was being negotiated in Madrid before being definitely approved in the Spanish Parliament following the Constitutional procedures. In that moment, media broadcasted the statements of some relevant Spanish politicians who said that they were going to modify the text as a piece of wood is modified thanks to a sandpaper. This were the real words of a very relevant politician of the Socialist party. At the end, more than 50% of the proposed articles were modified.
So, it must be remember that the right to decide was first of all an expression of a will in favor of what jurisprudence and political scientist call: internal self-determination. And it was equally defended at that moment by pro-independence and federalist positions. It is not strange so that the right to decide easily was assumed in the following years by all Catalan political parties in the Catalan Parliament except for the Partido Popular (Popular Party).
But soon after that the right to decide would connect with an external self-determination demand. Indeed, from a sociological point of view, the great change experienced in the Catalan society has been the big increase in the support for independence that was traditionally around 15% and now it is around 50%, a figure that seems quite stable.
Multiple reasons can explain this shift but, undoubtedly, the great momentum was originated by the ruling on the statue issued by the Constitutional Court on June 2010. According to this ruling main parts of the statue were declared unconstitutional and invalid, some of the ones that indeed had motivated the reform, as for example the recognition of Catalonia as a political nation within Spain, or the recognition of the Catalan as a language with the same level as the Spanish in Catalonia, or a new fiscal and tax agreement with the Spanish State.
Four years after being approved in the Catalan parliament, agreed in the Spanish parliament and endorsed by the Catalan citizenship in a referendum, a Constitutional Court formed by magistrates elected by the two Spanish great parties, the Popular and the Socialist party, and with a conservative majority, modified the fundamental law of Catalonia.
This unprecedented situation has been described by some jurists as a coup d’état, since the Court does not interpret a normal law, but modifies a basic constitutional-level law, a political agreement democratically legitimated by representatives and citizens. At present the Catalans have a fundamental law that has not been approved by them. One can imagine that this final version would be widely rejected by the Catalan citizens.
Since then, the Catalans have tried to exercise their right to decide. In fact, the popular movement already organized unofficial referendums on independence before the decision of the constitutional court. Between 2009 and 2011, more than 800.000 people voted in more than the half of towns and cities of Catalonia. Although they were not official and only reached a part of the population, the rigor of their organization must be emphasized.
On November 9, 2014 the Catalan government, after presenting itself with an electoral program in favor of the right to decide, try to hold a referendum that included various questions about the political future of Catalonia, a possible federal or confederal relationship with Spain and the independence.
The Constitutional Court declared the referendum illegal and the Catalan government had to turn it into a participatory process organized by volunteers. This modification was not made without controversy and its promoters, including the former president of the Catalan government, have been prosecuted for it. Two and half million participated
On October 1 of the last year, a new Catalan government hold an independence referendum in accordance with a law passed in the Catalan parliament that was declared unconstitutional. Everybody knows the result and consequences.
It seems to me that all this brief story can be summarized by saying that the Catalans have been struggling for a decade to vote on their political future. And the Spanish government has been preventing it for a decade.
Why this is so? Do the citizens of Catalonia have fewer rights than those of Scotland or Quebec, both part of Western democratic states, as Spain should be considered?
The right to vote on this issue has been denied by the Spanish political class and public opinion by appealing basically to two arguments.
First, the right to decide is the same as the right to self-determination and the Spanish constitution does not allow the right to self-determination.
And, second, when it is pointed that Spain has signed different international covenants that include and protect this right, it is answered that the external right to self-determination refers to colonies and Catalonia is not a colony.
The public and political debate in the Spanish context, unfortunately, has never gone beyond these two basic statements.
Are they enough to prevent a people from deciding their future? Can a territory and its people within a state be maintained against the majority will of its citizens?
It has been said that these two arguments would be applicable even if 100% of the Catalans will express their will to form a new independent state, since the last word must be said by all the Spaniards on whom national sovereignty is based.
Without going into great arguments, only intuitively, one can recognize here a very limited understanding of democracy, which ignores the recognition of territorial minorities, incapable of recognizing a political subject with as many national characteristics as any other European nation, and that ignores the practice of any secession referendum (including the brexit) where it is the subject that wants to leave who votes.
But let’s go back to the core question: Do the Catalans have the right to self-determination? Internally and externally?
From an internal point of view it can be observed that self-determination has been violated since the law that serves to politically accommodate the Catalan people within the Spanish state has not been voted by the Catalans.
Regarding external self-determination, possibly the point of departure is to recognize that international jurisprudence has been making, over the years, a restrictive interpretation of the right to self-determination, surely connecting it with decolonization processes. In particular, according to the decolonization committee of the United Nations, there are 17 pending cases. Catalonia is none of them.
Given this fact, it can be argued that the right to self-determination as it was originally understood has a much broader meaning and that a people like the Catalan should be subject to it, as were many other similar peoples in the European past, not too many years ago.
That’s ok but it seems to me more interesting the look at its connection with the examples of Canada and the United Kingdom, in relation with Quebec and Scotland. Both are firmly anchored in highly democratic contexts and points to a democratic understanding of the right to self-determination, even beyond the national principle. Indeed, this prevalence of democracy over other considerations is what possibly characterizes the notion of the right to decide, with a so central role in the Catalan sovereignty process.
It hardly needs to be remembered that the Supreme Court of Canada defended the possibility that Quebec would vote on its independence claiming that, although it was not possible to relate this case to the right to external self-determination that reflects international legalitity, democracy, federalism, the rule of law and the protection of minorities that characterize Canada implies it. If the will of the Quebecois were in favour of secession it should be recognized and give way to a negotiation process with the Canadian government.
In the case of the United Kingdom, the political will gave way without any constitutional procedure, as the United Kingdom lacked written constitution, to negotiate for the holding of a referendum of self-determination.
The same political will that could make possible to vote in Catalonia, even if a constitutional reform was necessary, as the Spanish Constitutional Court has pointed out. If the Catalans were consulted in a non-binding referendum and expressed their will to form a new state, it would be perfectly possible for the Spanish political parties, recognizing that will and to vote for a constitutional reform in the Spanish Parliament that would make possible and legal to implement that result. It is not a question of laws but of democratic conception. It is only a matter of political will and recognition of the Catalan people.
In this line I would like to also remember the Opinion of the International Court of Justice on the independence of Kosovo issued precisely in July 2010. It’s obvious that Catalonia has nothing to do with Kosovo. They are not parallel examples at all. But what a Court presents in its arguments must be taken as general reasons and even elements that can produce jurisprudence. In its assessment of the case, the International Court underlined some relevant points to conclude that the declaration of independence of Kosovo did not violate any international law. The Court starts by saying that that case cannot be judged from the parameters of the right to self-determination as it is currently defined in the international legal system, but there are other elements that can legitimate the declaration, mainly its democratic and non-violent character. It also claims that the principle of integrity must be understood in relation with other countries, it’s not to be applied in a secession procedure and it does not take any account of the national nature or not of Kosovo. It seems no relevant for the decision. I can see connections between this line of reasoning and the Opinion of the Supreme Court of Canada that seems to point to a new or a broader understanding of the principle of self-determination that leaves behind the restrictive version of decolonization. There is a new understanding of the right to self-determination deeply anchored in democracy.
Let’s go back to the initial question. What can be done if a political community wants to become an independent state in the 21st century?
Despite what happens still in too many countries, and it is clearly the case in the Spanish context, the unity of the state is not a sacred fact, a state is not a moral good to be protected, especially if we consider how many of the current states were formed as the result of wars and violence of all kinds. It is rather a political instrument at the service of citizens and must count with their assént. And can change over time.
The development of the democratic principle has been a constant in recent centuries. The number of people who can vote, including in the franchise, workers, women has been gradually expanded. It should also expand the set of issues withon reach of citizens, including the possibility of constitute a new independent state. We cannot leave democracy with black holes, otherwise it will be said that there are issues that only with wars, violence and suffering can be resolved.
The right to decide can be considered a democratic interpretation of the external right to self-determination, which emphasizes the democratic dimension of it over the national one and that represents a further step in the advancement of democracy.
Someday the idea that a people, any people, can be recognized as a nation over all by their willingness to be and their willingness to exercise the right to decide will overcome the old distinctions between historical nations and peoples and any other territorial-based political community which presents a sustained demand over time, in a peaceful, stable and democratic manner, to exercise its right to decide on its political future, which does not equate with a unilateral and unconditioned right but with a recognized democratic procedure, including conditions and negotiations. Possibly, among them, it will have to be included previous efforts to develop internal self-determination and getting recognition.
But before all that happens in a possible future, hopefully this century, Catalonia is already a nation which has claimed for its right to self-determination by appealing to its right to decide inside a parent state with a number of those failures. It must be listen.
Especially in a European context where a change of this magnitude can be conceived under the umbrella of shared sovereignty and porous borders. If Europe is to be a federation, the modification of its internal borders should be contemplated, both in recognition of its federal character and in recognition of the right to self-determination of its stateless nations. In Europe, precisely, the distintcion between internal and external right to self-determination should lose part of its meaning. In no other place in the world, the development of federalism and self-determination should be more guaranteed.
Maybe it would be easier with a European Law of Clarity, following the Canadian model, which could stipulate fair rules to develop self-determination referendums in which the will of the citizens were taken into account, and their will could initiate fair negotiations between governments, with the intermediation of the European Union and, in any case, within the framework of a new understanding of the right to self-determination, more in accordance with the necessities of the 21st century.