Reconciling the Irreconcilable
Dr. Carles Puente Baliarda
(Universitat Politècnica de Catalunya
On October 25th 2017, a few weeks after the October 1st referendum and just as the Spanish state announced that it would call article 155 of the Spanish Constitution to impose a direct rule on Catalonia, the UN issued a statement through the website of the Office of the High Commissioner for Human Rights, in which their independent expert, Professor Alfred de Zayas, deplored the suppression of the autonomy of Catalonia due to said suppression being contrary to fundamental rights, and international as well as Spanish law [1]. In a clear and transparent way Professor Zayas explained how such an application of article 155 was an unacceptable regression in the application of human rights, that it was against articles 1, 19, 25 and 27 of the International Covenant on Political and Civil Rights (ICPR [2]) and that, moreover, it was also against the Spanish Constitution which, in virtue of article 10 (2), obligates itself to be always interpreted in accordance with international treaties signed by Spain regarding fundamental rights (including the aforementioned ICPCR).
Additionally, the statement was conclusive in establishing the ius cogens nature of peoples’ right to self-determination, that is to say, it is a fundamental right that, in case of conflict, is above other rights. This means, for example, that the right of self-determination of peoples is above states principles of territorial integrity and that these, consequently, cannot refuse it’s exercise. On the contrary, in accordance with multiple UN resolutions in respect thereof (for example, 2625/XXV from October 24th, 1970), states are not only unable to refuse this right, they also must ensure that it can be exercised in freedom and without interference. Incidentally, the statement dismantled the fallacy that the right of self-determination applies only to oppressed peoples and to colonies, which would be as absurd as claiming that equal rights among all people only apply in cases of slavery or violence against women. The right of self-determination, said the statement, applies to ALL the peoples of the Earth without exception, including of course the peoples of Spain and, within those, the people of Catalonia. The statement ended with the finding that the only way to resolve the conflict in Catalonia is by means of the holding of a binding self-determination referendum, backed by the European Union and that pursuant to Article 10 (2) of the Spanish Constitution could be perfectly legal in Spain without the need for constitutional reformations.
One aspect of the statement which is of particular interest is where de Zayas explains that the right of self-determination should not be confused with the right to self-execute independence. This nuance is very important because it offers a perspective that is especially relevant for understanding where we are at in the process of Catalonia vs. Spain and which allows us to undo the legal mess in which we are seemingly immersed.
What is the difference between self-determination and self-execution and why is this so relevant in the case of Catalonia and Spain? Self-determination is the inalienable right of all peoples to unilaterally make decisions about their political status, such as and among other options to be chosen by the people in question, whether or not to establish an independent state [3]. It should be stressed that the character of the decision can not be of anything but a unilateral nature because if it were not unilateral the people who hold said right could not in practice decide their political status given that their decision would always be conditioned by a third party, for example, the state from which they want to separate. Now, as de Zayas explains in the statement, to decide is not the same as to execute the decision, and this is a key point which sheds some light on the conflict of legitimacies between the Catalan people and the Spanish people (that until today include the first). It is advisable to execute the separation, if this is what the people self-determine, in a bilateral way with the consent of both affected parties, ensuring that the legal, economic and political framework that united the two parties for a time is reordered using the most fair and balanced formula possible so that separation can happen in an orderly and civilised way.
Perhaps the situation will be easier to understand if an analogy is made with a legal and necessary divorce between two partners that did not understand each other or between two peoples that did not want to share a state, as was the case between the Czechs and the Slovakians who separated in 1993. In a divorce, either of the two parties has the inalienable right to decide unilaterally over the dissolution of their union and the other party has no right to refuse the divorce by claiming acquired rights or collateral effects on their person. However, it’s one thing to decide and something very different to execute the decision. It’s one thing to decide unilaterally that you will get a divorce and quite another to be divorced. Between the decision and the execution there is a judicial process that reorganises the legal and economic framework of both parties (what will happen with the joint property, the new legal status of each party etc) to make the separation official. That is to say, to move from the unilateral decision to divorce to actually being divorced, it is first necessary to «settle» the divorce.
This is the same thing that happens when one people separates from another to form an independent state, at least this is what happens in modern times where conflicts are no longer resolved with rounds of ammunition, but rather with a round of signatures after a negotiation. Between declaring independence and becoming independent, it is necessary to agree on the terms of the separation, which is to say it's necessary to «settle the divorce». This implies that while the agreement is not signed the separation is not effective notwithstanding the fact that one of the two parties has made a decision that is indisputable and irrevocable by the other party.
One way of understanding this situation is by referencing the case of Brexit, where in 2016 the United Kingdom decided by means of a referendum to separate from the European Union. Although the decision was firm and binding, during the 3 years that have passed since the decision was made it has not been made effective because both parties have been negotiating (arduously) the terms of their separation in an orderly and civil manner. Therefore, until the separation is made effective, the United Kingdom will continue to be a part of the European Union and the legal treaties between both parties will remain binding.
The nuanced difference between self-determination and self-execution is important in the case of Catalonia and Spain because it provides a path for the resolution of the apparently irreconcilable legal conflict of legitimacies, as well as solves the problem of the unconstitutionality mainlined by a good part of Spanish jurists. For example, How can the inalienable right of self-determination of the Catalan people be reconciled with article 2 of the Spanish Constitution which establishes that it is based on the «indissoluble unity of Spain»? How is it possible for Catalonia to have the right to decide to leave Spain without that being at odds with the Constitution? This is possible precisely because the political decision does not necessarily imply it’s execution. The possible unilateral decision of Catalonia to establish an independent state (and without now getting into whether this has already happened or not) is a legitimate political decision that should be legally respected, but that would not automatically result in a separation from Spain because it would need to be executed to be made effective. The consequence is that to exercise their right of self-determination by means of a referendum does not automatically break apart Spain and, therefore, doesn’t violate or infringe on the Constitution. In the same way that the Brexit referendum does not break apart the European Union until its execution, a self-determination referendum in Catalonia does not imply the rupture of the legal and constitutional status of Spain. Once the decision has been made, in the course of the process of «settling the divorce», the constitution could be reformed so that, in a civilised and orderly manner, it would be possible for the separation to be made effective. The nuance is important, because the result of understanding the situation in this way is that the right of self-determination, legal and currently in force in Spain as stipulated by the UN, is reconciled with the apparently irreconcilable Spanish Constitution and its article 2 on the «indissolubility of the Spanish nation.» Additionally, it is worth clarifying that it is exceedingly clear from a judicial standpoint, and this has been stated by the competent courts on several occasions, that the Spanish Constitution is not militant and it is perfectly constitutional to be against it and to propose its modification. Therefore, the constitution, far from being a stone tablet of divine law, is a living legal instrument at the service of the people and it must be adapted to the necessities of the democratic will of the peoples and citizens that make up Spain, including for the exercise of the right of self-determination that, depending on its result could imply the necessity for its modification.
Some might wonder if having gotten to this point the Spanish people could refuse to sign the «divorce settlement» and with this, deny the separation. The answer is that legally, no. To do so would be contrary to the agreements that Spain signed with the international community, agreements to which Spain legally and voluntarily bound and committed itself, and would be contrary to human rights. In fact this same dilemma occurred in Canada in the case of Quebec. In Canada, the constitution didn’t explicitly contemplate the holding of a Quebec self-determination referendum, but this didn’t prevent such a referendum from being held, in a legal and agreed upon way, on two occasions. Canada understood that the state couldn’t hold the people of Quebec against their will and that in the case that their will was to separate they should listen to their decision and initiate the legal reforms which would be necessary to make it effective. The United Kingdom showed the same understanding when their first minister David Cameron declared «the United Kingdom can not hold a people against their will» and later approved the celebration of a self-determination in Scotland.
It has come time for the Spanish State and the citizens of all of Spain to take a look in the mirror and decide if they want their country, with or without Catalonia, to be more like the United Kingdom or Canada, or to authoritarian countries such as Turkey or China. If they will listen to the voices that come from Belgium, Switzerland, the United Kingdom, Germany, Finland and the United Nations or stay anchored to the political approach of the time prior to the Universal Declaration of Human Rights and the World War that changed the course of history. In Canada and the United Kingdom the people decided to stay. Would the people who want to separate from Turkey and China do the same?
Sant Cugat del Vallès, 7th of April 2018
(last update 21st of November 2019)
Carles Puente i Baliarda
[1] «UN independent expert urges Spanish Government to reverse decision on Catalan autonomy», http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22295&LangID=E
[2] «Instrumento de Ratificación de España del Pacto Internacional de Derechos Civiles y Políticos, hecho en Nueva York el 19 de diciembre de 1966», «BOE» núm. 103, de 30 de abril de 1977, páginas 9337 a 9343 (7 págs.), http://www.boe.es/diario_boe/txt.php?id=BOE-A-1977-10733.I Spanish ratification of the original International Covenant on Civil and Political Rights. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
[3] «RESOLUCIÓN 2625 (XXV) de la Asamblea General de Naciones Unidas, de 24 de octubre de 1970, que contiene la DECLARACIÓN RELATIVA A LOS PRINCIPIOS DE DERECHO INTERNACIONAL REFERENTES A LAS RELACIONES DE AMISTAD Y A LA COOPERACIÓN ENTRE LOS ESTADOS DE CONFORMIDAD CON LA CARTA DE LAS NACIONES UNIDAS», https://www.dipublico.org/3971/resolucion-2625-xxv-de-la-asamblea-general-de-naciones-unidas-de-24-de-octubre-de-1970-que-contiene-la-declaracion-relativa-a-los-principios-de-derecho-internacional-referentes-a-las-relaciones-de/ Also in English http://www.un-documents.net/a25r2625.htm