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Catalonia’s Legitimate Right to Decide: Paths to Self-determination

Prof. Dr. Axel Schönberger
Germany

Jan 7, 2018 — Catalonia’s Legitimate Right to Decide: Paths to Self-determination

A Report by a Commission of International Experts

NICOLAS LEVRAT
Professor at the University of Geneva, coordinator of the Report
SANDRINA ANTUNES
Professor at the Universidade do Minho
GUILLAUME TUSSEAU
Professor at Sciences Po, Paris
PAUL WILLIAMS
Professor at American University in Washington, DC

«4.4. Intermediary Conclusion

Democratic legitimacy at Catalan and Spanish levels may both be equally valid, even though the principle of external preference limits the capacity of Spain to permanently oppose the democratic choice of Catalonia. When conflicting political legitimacies compete, there is a duty for democratic authorities to negotiate. Further, in a genuine liberal democracy, rule of law may not trump democratic legitimacy, nor the other way around; therefore, in a modern democratic State, rule of law and democratic legitimacy need to be reconciled and cannot in the long term remain opposed. In the context of a vote of self-determination, as is the case, the national framework will inevitably be inappropriate because the existing democratic processes to address the issue did not allow for a solution or a process to emerge within itself. A change of scale then appears necessary, by justifying either locally or internationally (or both) the organization of a referendum.

Thus, if Spanish national Authorities deny the right to Catalonia to negotiate its Right to Decide within the Spanish political framework, then the only path left for Catalonia’s Authorities is the call for a self-determination referendum. Notwithstanding, international practice shows that self-determination processes always rely at some point on a negotiation procedure, and the experts recommend the exploration of an earned sovereignty negotiating process within the framework of the EU.

CONCLUSIONS

1. The evolution of the negotiating process between the Catalan and Spanish governments since the re-establishment of democracy in 1977 through time has allowed us to identify key moments of a deteriorating political relationship where the Spanish government has gradually renounced to accommodate Catalan territorial demands. Very seemingly, the evolution of this relationship sheds a new light on the tortuous path towards the legally binding referendum on political independence to be held on the 1st October 2017.

2. The upsurge of territorial demands towards political independence has been put on the political agenda by the organized Catalan civil society immediately after the release of the Constitutional Tribunal ruling in 2010. Additionally, there has been a clear shift in popular territorial preferences, moving from preferences asking for the maintenance of the current “status quo” to demands of “political independence”, irrespectively of people’s age.

3. Catalan popular demand for the possibility to hold a referendum on political independence has been largely justified by the democratic “right to decide”, which has evolved from the more traditional and long-standing legal framework to the “national right to self-determination”. In other words, demands for political independence have been legitimized by a democratic principle invested in the Catalan people, reinforced by the repeated denial to accommodate Catalonia’s demands on the part of the Spanish government.

4. From an international law perspective, it appears clearly that there is no international legal prohibition barring a sub-state entity from deciding its political destiny by assessing the will of its people. Both case law and state practice support this conclusion. State practice demonstrates that numerous geographically diverse sub-state entities have expressed the will of their people regarding independence. The practice occurs both with and without the consent of the national state. Many sub-state entities have achieved independence after assessing the political will of their people. EU member states have recognized many former sub-state entities that assessed their people’s political will and decided to pursue independence.

5. As regard European Law, in the absence of specific Treaty provision on the right of Selfdetermination for a European people without a State on the territory of the EU, EU law, does not forbid the exercise of its Right to Decide for a European people within the EU. There are even numerous Treaty provisions that indicate that if such Right was to be exercised, EU and its member States would react positively to a new European State candidacy to join the EU. Recent and consistent practice clearly points that way. Further, both as a collectively exercised human right and as a fundamental norm of international Law, EU recognizes the Right to decide.

6. As regard the constitutionality of the claim for the Right to Decide, it is necessary from an empirical viewpoint, and fruitful from a normative one, to give up the quest for a supreme constitutional interpreter. What is crucial in a constitutional state that is faithful to the ambitions of constitutionalism is the ongoing dialogue about, and engagement with, constitutional values and principles. Only this makes the constitution a living document, infused by the competing interpretations of values and principles that, by their very nature, admit various readings and conceptions. The quest for the final word is useless, illusory and possibly lethal from the political viewpoint of a sane deliberative community.

7. In that respect, the debate is much more open than what one might think at first sight by examining too rapidly the basic features of contemporary constitutionalism, especially as it is illustrated by the Spanish constitutional system. Far from being disruptive of the constitutional project that was adopted in 1978, the Catalan claim to a right to decide on its political future precisely testifies to a genuine commitment to the ongoing constitutional dialogue that is legitimate in an open society. This is why simply dismissing this claim as “unconstitutional” cannot be an attitude that lives up to the high standard of political morality that is imposed by the ideal of constitutionalism.

8. Democratic legitimacy at Catalan and Spanish levels may both be legitimate, even though the principle of external preference limits the capacity of Spain to permanently oppose the democratic choice of Catalonia. However, when conflicting political legitimacies compete, there is a duty for democratic authorities to negotiate. This is confirmed by the observation of international practice that in almost all instances, the sub-state entity and national state negotiate the contours of the assessment of political will.

9. Further, in a genuine liberal democracy, rule of law may not trump democratic legitimacy, nor the other way around; therefore, in a modern democratic State, rule of law and democratic legitimacy need to be reconciled and cannot in the long term remain opposed. In the context of a vote of self-determination, as is the case, the national framework will inevitably be inappropriate because the existing democratic processes to address the issue did not allow for a solution or a process to emerge. A change of scale thus appears necessary by justifying either locally or internationally the organization of a referendum. If Spanish national Authorities deny the right to Catalonia to negotiate its Right to Decide within the Spanish political framework, then the only path left for Catalonia’s Authorities is the call for a self-determination referendum.

10. Thus, whatever the conflicting claims of legitimacy put forward by the political actors, international practice and transconstitutional jurisprudence show that successful selfdetermination processes always rely at some point on a negotiation procedure. In that perspective, the experts recommend the exploration of an earned sovereignty negotiating process within the framework of the EU. This would imply involvement by EU institutions; we consider it possible in the perspective of a negotiation within the EU, fully associating Spain in seeking for Catalonia a constrained sovereignty solution, as an EU full member.» (pp. 136-140 of the Report).


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