Petition update

Spanish parties continue to disregard Spanish constitution

Prof. Dr. Axel Schönberger

Feb 22, 2019 — 

The two Catalan parties Pdecat and ERC had clearly and unambiguously called on the Spanish socialist minority government in Madrid to finally observe the Spanish constitution and to finally grant Catalonia the right to self-determination enshrined in the Spanish constitution as a mandatory right. The socialist Pedro Sánchez has denied this and thus placed himself in the ochlocratic tradition of the right-wing conservative predecessor government under Mariano Rajoy. This refusal on the part of the Spanish socialists led to the holding of new elections. 

By applying Article 155 of the Spanish Constitution in a way that was not covered by either the Spanish Constitution or the Spanish Penal Code, the Spanish Government had allegedly seriously violated the Spanish Penal Code and thus, in a manner that could be called a criminal offence, removed a democratically elected parliament from office and ruled Catalonia for months under dictatorship.

Pablo Casado, leader of the Partido Popular, has already announced his intention to re-establish a dictatorship over Catalonia in the event of an election victory.

If, in a marriage, the spouse continually beats up his wife, and she then requests divorce, and the right to divorce is enshrined in the law of the country concerned, the spouse cannot simply claim that he interprets that law in such a way that a marriage once entered into is nevertheless indissoluble forever. If the wife then demands of him to acknowledge her right to divorce, one will not have to reproach her lack of willingness to compromise or blackmail hard demands, but rather her husband for unlawful and completely unacceptable behaviour. In such a situation there is no reasonable compromise, but simply the right which is on the wife's side and not on that of the violent husband. It's that simple.

It is a demagogic smoke screen of Spain to spread the assertion that the UN Charter does not provide for Catalonia's right to self-determination. Nobody said that in this form. The UN Charter dates from 26 June 1945; only a few points were amended thereafter.

The collective human right of peoples to self-determination, on the other hand, was established as a universal, equal and indivisible human right for all peoples of the world in the two great human rights pacts of the United Nations — because of its importance at the very beginning of them — to which the Catalan side refers:

1st International Covenant on Civil and Political Rights (iccpr)

2nd International Covenant on Economic, Social and Cultural Rights (icescr)

Spain has unconditionally submitted to the law of both human rights pacts by signing them internationally on 26 April 1977 and publishing them on 30 April 1977 in the Spanish Official Gazette (Boletín Oficial de Estado) (BOE 103, 30 April 1977, pp. 9337- 9343, and BOE 103, 30 April 1977, pp. 9343-9347). Contrary to what the Spanish governments under Mariano Rajoy and Pedro Sánchez claim in blatantly untrue form, the right to self-determination of each of the peoples of Spain is clearly part of the Spanish legal order. The Catalans are right if they insist on their right, but Spain is not a functioning constitutional state and, in particular, has a biased constitutional court that contributes time and again to oppressing Catalonia like a colony and literally enslaving it.

Now the Spanish government continues to claim that the collective human right to self-determination does not apply in a supposedly «exemplary democracy» like Spain. On the other hand, the Spanish constitution is relevant, which, like international law, does not provide for the right of self-determination of one of the peoples of Spain.

Both allegations are incorrect. On the one hand, human rights are universal and inalienable. No country which, like Spain, has unconditionally recognised the United Nations Covenants on Human Rights as binding international law may violate them. On the contrary, Spain is obliged to guarantee Catalonia and the Catalans their human rights.

Since international law is constantly evolving, the United Nations General Assembly in October 2008 appealed to the International Court of Justice in The Hague on the question of the secession of Kosovo from Serbia and asked for a legal opinion on whether Kosovo's declaration of independence of 17 February 2008, which was based on the right of peoples to self-determination, but contrary to the Serbian constitution and the will of the Serbian majority of the population of the State as a whole, violated international law. The International Court of Justice has clearly denied this question in a much considered decision. The «Accordance with international law of the unilateral declaration of independence in respect of Kosovo» dates from 22 July 2010.

Some states, such as China and Spain, criticised this decision. Germany and France, on the other hand, were among the first states to recognise Kosovo's declaration of independence on the basis of the peoples' right to self-determination. The Federal Republic of Germany and the German Democratic Republic had based their reunification in 1990 on the same right. The Declaration of Independence of Catalonia of 27 October 2017 has therefore not infringed international law and is valid as a legal figure. It would require a new referendum of the Catalan people to revoke it. The Spanish Constitutional Court has no jurisdiction in this matter.

Does Spain now have the right to interpret international treaties such as the United Nations human rights pacts it has signed at its own discretion or in the light of its own constitution? The answer is clearly no. The Vienna Convention on the Law of Treaties (VCLT) is the binding basis under international law for the interpretation of the two human rights covenants. Articles 26 and 27 of this Convention, to which Spain subscribed, are clear and do not allow Spain to make its own interpretation of, for example, the human rights covenants or to place national law, such as the Spanish Constitution, above mandatory international law, such as the two human rights covenants. Pacta sunt servanda. No more, no less.

It is also an untrue assertion that the Spanish Constitution does not know the right of peoples to self-determination published in the Spanish Official Gazette. Article 10 (2) of the Constitution of the Kingdom of Spain of 1978 clearly obliges Spain to interpret the fundamental rights and freedoms guaranteed by the Spanish Constitution in the light of and in conformity with the Universal Declarations of Human Rights and, in particular, the ius cogens of the two great United Nations Covenants on Human Rights signed by Spain. But that is not all: Article 96 (1) of the Constitution of the Kingdom of Spain of 1978 also stipulates that valid international treaties ratified by Spain — the two major United Nations covenants on human rights ratified by Spain without reservation are clearly included — are part of Spanish law and their contents may only be repealed, amended or suspended in the manner provided for in those treaties themselves or in accordance with the general norms of international law.

So there is nothing to negotiate and there is no room for compromise on the question of whether the Catalans have the right to self-determination. It is an inalienable human right of the Catalan people, guaranteed by the Spanish Constitution, and which necessarily violates any conflicting legal norms of the Spanish State. Spain has been telling the international community a fairy tale for years now, without the alleged facts, for example, being properly examined by the international media. The unity of Spain also postulated in the Spanish constitution — the most important legacy of the dictator Francisco Franco — is directed against an attack or interference from outside, but not against the realization of the right to self-determination of one of the peoples of the multi-ethnic state of Spain.

The actions of the Spanish governments since at least 2017 have violated and continue to violate international law, the Spanish Constitution, organic law of the Spanish state and the Spanish Penal Code in the Catalan crisis. A democratically elected parliament was illegally dissolved, democratically elected politicians were prosecuted for political reasons, imprisoned and brought to (in)justice. Spain has violated and continues to violate human rights massively. Spain has so far been able to count on the open support and approval of the European Union, whose human rights convention is apparently no longer to be valid. In the Catalan crisis, the European Union is increasingly losing its fundamental values and thus its own raison d'être.

Finally, for those who would like to inform themselves, there are some hints for further reading:

Keep fighting for people power!

Politicians and rich CEOs shouldn't make all the decisions. Today we ask you to help keep free and independent. Our job as a public benefit company is to help petitions like this one fight back and get heard. If everyone who saw this chipped in monthly we'd secure's future today. Help us hold the powerful to account. Can you spare a minute to become a member today?

I'll power Change with $5 monthlyPayment method


Please enter a comment.

We were unable to post your comment. Please try again.