Self-determination vs. Sovereignty; from the perspective of Catalonian independence

“Independence” the word symbolizes the freedom; in this age of human rights, when people are killed to establish such rights around the world. It seems that everyone is pro-independence helping the straggling people for their right to self-determination. More specifically, in the name of democracy with the power of military might but so far the action suggests that the powerful international community is somewhat busied. They work for the people whom they like and for a particular interest, on the other hand, some part of the world remains unseen and ignored as internal issues of a sovereignty country. Then often the world powers turn their blind eye to this beautiful concept of sovereignty but how viable is that? The question arises when the opposite scenario often comes in front and creates discomfort with conflicting ideas of the legal regime and the practice of international politics.

Let’s put some light in the recent declaration of independence of Catalonia with the probability of different realization.

Catalonia, a regional part of Spain, with a distinctive culture, history and facts. It is also the richest area of the county with 20.70% foreign investment, generating 25.60% export and contributing 19% GDP with only 16% of the population of the country.

The area centred to Barcelona as its capital, declared independence on 27th October 2017. Previously it was an autonomous part of Spain under the Constitution of Spain 1978.

Long story short, in 2006 some changes by the Spain was adopted and then furiously denied by the Catalonian legislative which led to an increased demand for independence. In 2014, 92% of voter wanted a new state and an independence referendum was held on 1st October 2017, no surprise the Madrid centered government did not like it, so they send some police to inform their dislike and that nonetheless aggravate the situation. Furthermore, the constitutional court of Spain declared such referendum illegal with the charge of sedition and arrest of few pro-independence leader. Though it was alleged by Spain that the voting process was not maintained properly, even though the public support seems to be in the favour of an independent state of their own.

Now form the legal viewpoint, Spain is relying on their constitution. The constitutional court of Spain said that this sort of attempt is clearly unconstitutional as no right of self-determination is provided under the constitution but this is not the first rule of this kind, in 2014 a similar rule was made by this special court. However, on the day of 1st October 2017 when Catalonia held the referendum, Spain took harsh measures in the region, arresting people and destroying the referendum system that was set for public opinion with the deployment of around 4000 police in action. It is obvious that united Spain sees it as sedition and grave violation of the law and order to the sovereignty of the country. Despite all the effort of Spain, Catalonia independence was declared with a motion of parliament of Catalonia with 70 in favour, 10 against and 2 abstentions in 135 seat chamber headed by the president of Catalonia, Carls Puigdiement. Spain reacted immediately after such declaration, the Senate dismissed Catalonia parliament and granted the president Rojoy the unprecedented power to impose direct rule on Catalonia under the power of article 155 of the constitution of Spain, which is the last resort to restore the present condition of the country.

This sovereignty trump card is not new to governments with the colonial mentality, we may call it as the Spain government repeatedly undermine the voice of Catalonian people over years. The constitutional court has declared various referendum of Catalonia as illegal. It is evident that as Catalonia is the most prosperous part of the country the and as Spain and the foreign inverter heavily depend on the outcome of that area, Spain cannot effort losing this part of the country, it is an integral part of their survival. Furthermore, the people of Catalonia always differentiate them from the Spain and historically wanted to be a separate state with own freedom. But the situation could be mitigated by another way for example, in 2016 Brexit, In 2014 Scotland issue with the UK and the similar policy of Canada is considered more suitable therefore they resulted in a peaceful settlement with true practice of democracy and political wisdom. However, Spain is already in a red zone and heavily criticised for its action by the freedom loving people around the world, it seems sovereignty is nothing more than euphemism and suppression lie behind it. Suppression made them furious, Spain push Catalonians to take their next move.

The concept of sovereignty, on the other hand, losing its appeal in this arena of International Organizations where the complex influence of international organization acting as powerful catalyst over the policies of a state as state joined these organization with their consent to comply with their decision. Sometimes ruling superpowers behind the organizations often play their role for their interest in the name of law, it has also been argued the world powers are keen to create only those systems that benefited them in one way or another.

In this situation where Spain is very dependent on the European Union thus bound themselves to follow their rules to some extent over the countries legislative power, other major organizations like UN, WTO, etc. cannot be ignored as well. Speaking of international organization states should be addressed too. So far, no country has recognized them as a new state, rather countries like USA, UK, French, Germany and most of the western countries already provided their descending opinion on this issue.

Now the real question is whether recognition of other sovereign countries is mandatory or not? The answer is both No and yes, and neither can be claimed authentic.

Before involving that argument, we must understand the right to self-determination which seems somewhat conflicting in relation with the principle of sovereignty in certain cases like this. Some international instrument can be referred for this purpose, UDHR, ICCPR, Charter of the fundamental right of the European Union all of these instruments recognised the civil and political right of citizens where freedom of expression, freedom of assembly, freedom of association are guaranteed and ICCPR specially mentioned (Article 1) the right to self-determination. This self-determination of peoples and dependent entities has also been recognized in Resolution on Self-determination of 12 December 1958 (UN GA) and a declaration was also adopted the same on 14 December 1960. These all are binding on Spain being a party as articulated under Article 96 and Article 10.2 of Constitution of Spain where it said, ..Validly concluded international treaties, once officially published in Spain, shall be part of the internal legal system and..Provisions relating to the fundamental rights and liberties recognised by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain. Therefore the application of laws is in the favour of the people of Catalonia otherwise those international instruments make no sense at all, therefore it can be concluded that where Spain is trying use sovereignty against the right to self-determination. Generally, there is always some derogation of rights clause in every instrument to avoid certain unexpected and conflicting situation and countries use them too but where the whole process is peaceful, such use of derogation is not acceptable at all. However as often we observe interpretation may vary. So it is obvious apparently there were clear violations of human rights by the actions of Spain during the peaceful access to the right to self-determination.

Coming back to the No/Yes answer of state recognition.

The first theory called Declarative Theory of statehood derived from The Montevideo Convention of Rights and Duties of statehood 1933. It said, to be a country it must following elements.

  1. A permanent population
  2. A defined territory
  3. A government
  4. Capacity to enter into a contract

On the other hand, to be a member of UN no recognition is required if the county fulfils its criteria of UN membership and that membership can be a form of collective recognition.

Former Judge of ICJ Richard Baxten felt that recognition caused more problems than it solved, Mr. Estrada, former minister of foreign affairs of Mexico adopted a different approach, he said it is insulting to recognise a sovereign state, he adopted the implied method of recognition, known as “Estrada Doctrine”

Contrary, the constitutive theory of statehood defines a state as a person of international law if, and only if, it is recognised as sovereign by other states. This theory has its own point of argument. A state cannot walk alone, it needs to comply with international law and relations, therefore, it is impossible without proper identification and which is “recognition”. For example, In 1815, at the Congress of Vienna the Final Act recognised only 39 sovereign states in the European diplomatic system, and as a result it was firmly established that in the future new states would have to be recognised by other states, and that meant in practice recognition by one or more of the great powers but it’s biggest lacking is that this theory never said how many counties should give recognition to validate the status of a state.

Whatever the policy might be there are certain benefits of recognition, like, to sue or to be sued by the state, impose and execute rights and duties, diplomatic issues etc.

It is not the law that makes the decision of international policy and morality may have a very weak relationship with it, rather the nations play according to their self-interest interpreting the laws for the best interest of their geopolitical and economic benefit. Historically it was never been easy to be independent and keeping the pride status is even harder especially without any help of any superpower. However, the true democratic practice of Catalonia and their wise political and economic move may help them to maintain their freedom. After the Brexit and the huge debt on the shoulder of Spain. Spain will try its best to protect its interest with all of the power and their allies would not want any political turmoil in the region. In this particular situation, another thing must be realised, that the restriction to freedom is always an exceptional common clause along with right to freedom but how this beautiful term is used must be noticed carefully and the common people of the world should be concerned the applicability of these exceptions, so it remains as an exception, not as a tool of oppression.

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Rayhanul Islam

Advocate Rayhanul Islam is the founder and Editor in Chief of Law Help BD. He is also a researcher. Critical thinking is his main focus. He is on a quest to bring positive change to the legal sector of Bangladesh. He promotes legal knowledge and human rights concept to the root level. e-mail: [email protected]

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