Autodeterminazioa eta Katalunia

Alfred de Zayas-en Self-determination and Catalonia

(https://dezayasalfred.wordpress.com/2018/06/09/self-determination-and-catalonia/)

The change of government in Madrid gives hope that negotiations in good faith may now be possible with the government of the Generalitat of Catalonia. A modicum of historical knowledge should help outsiders understand that Catalonia has its own distinct culture and traditions and that the only way forward is through a new referendum. The legal aspects of the issue are explained in the memorandum below.

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RECOMMENDED APPLICATION OF THE “PRACTICAL NOTES FOR THE ASSESSMENT OF ACTIVITIES AND ALLEGATIONS RELATED TO THE PEACEFUL AND DEMOCRATIC EXERCISE OF THE RIGHT OF SELF-DETERMINATION OF PEOPLES “

IN RELATION TO THE CATALAN PEOPLE

Introduction: My “Practical notes for the assessment of activities and allegations related to the peaceful and democratic exercise of the right of self-determination of peoples” (December 2017, hereinafter the “Notes”[1]) summarize the current state of international law and practice on the subject of the right of self-determination of peoples (hereinafter, the “right of self-determination”). They are offered as a practical guide to assist national officials of administrative and judiciary bodies as well as practitioners and private persons in assessing the legitimate exercise of the right of self-determination in the framework of a specific activity or claim in an internal judicial procedure or in democratic activism for a consultation or referendum.

The “Notes” is a document commonly applicable to all States that have legally committed to respect and promote the right of self-determination, that is, the Member States of the United Nations and/or the States parties to the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights.

The “Application” documents, like the present one, examine specific cases of application of those “Notes” in line with contemporary developments in the world. They offer practical tools to facilitate the assessment by competent state authorities of possible specific activities concerning the exercise of the right of self-determination. The “Notes” and the “Application” documents should be considered together as an approximation to the current state of international norms and doctrine, taking into account that competent international bodies should ultimately adjudicate on that basis.

As the “Notes”, the “Application” documents reflect the criteria developed in my report to the General Assembly in 2014 (A/69/272)[2] in my capacity as “Independent Expert of the Human Rights Council of the United Nations on the promotion of a democratic and equitable international order”[3]. That report describes the implementation of the right of self-determination as an essential strategy for the prevention of internal, regional and international violence and conflict. My mandate[4], approved by the Member States of the United Nations, aims to “support the strengthening and promotion of respect for human rights and fundamental freedoms in the entire world”. The “Application” documents are not subject to copyright. They can be liberally used while quoting the source, and even such citation is not required if they are used in the framework of administrative or jurisdictional procedures.

Comments and questions on this document are welcome:

Prof. Dr. Alfred de Zayas

Independent Expert of the United Nations on the promotion of a democratic and equitable international order (2012-18)

Postal address: 23 chemin des Crêts de Pregny, CH-1218 Le Grand Saconnex, Geneva, Switzerland

Tel: +41 22 788 2231 Email: alfreddezayas@gmail.com

Important notice: Taking into account that each case is sui generis, the content of each “Application” document cannot not be automatically extrapolated to other cases of exercise of the right of self-determination. For inquiries about other cases than this one, the Independent Expert is available to interested parties.

My ”Practical notes for the assessment of activities and allegations related to the peaceful and democratic exercise of the right of self-determination of peoples” (hereinafter, the “Notes”[5]) contain the following legal conclusions about the right of self-determination of peoples (hereinafter, the “right of self-determination”):

The right of self-determination is jus cogens, fundamental norm of superior hierarchical rank, recognized by the United Nations founding treaty, compulsory on national and international judicial and administrative instances, and superior to any national constitution or law that may conflict with it[6].
The right of self-determination refers to the peoples’ capacity to decide their political status. This includes the external exercise of the right of self-determination (deciding on secession or unification) as well as its internal exercise (deciding on the degree of integration in a State). The exercise of the right of self-determination entails the equal participation of peoples in decision-making in an ongoing dialogue in which the parties adjust and readjust their relationship for their mutual benefit. Self-determination is an expression of human dignity and an enabling human right necessary for the enjoyment of many other human rights in their holistic dimension – collective and individual.
The right holders of the right of self-determination are “all peoples” without distinction. Although the definition of “people” does not yet exist internationally, in general it is recognized for a group of persons with a common historical tradition, an ethnic or racial identity, cultural homogeneity, linguistic unity, religious or ideological affinity, territorial connection or a common economic life, with the awareness of being a people and the willingness to be recognized as such. Any arbitrary limitation of the right of self-determination only to some peoples (for example, those subjected to military occupation or colonial domination) or only in certain historical moments in time (for example in situations of armed conflict) would be contrary to international law.
The duty bearer of the right of self-determination is “Every State”, whose institutions should not only respect the exercise of that right (for instance refraining from external interference) but also proactively facilitate it, especially in relation to the peoples under its jurisdiction.
The principle of territorial integrity as laid down in the United Nations Charter (article 2(4)) and General Assembly Resolutions 2625 and 3314, is intended for external application. This means that a State cannot invade or encroach on the territorial integrity of another States. The principle of territorial integrity must not be invoked internally nor can it be used as a pretext to restrict the human rights of the peoples under a State’s jurisdiction. The right of self-determination is a right recognized to peoples as right holders, and is not the prerogative of the State to grant or deny, not even on the basis of the principle of territorial integrity, unless there is external interference. In case of conflict between the principle of territorial integrity and the human right of self-determination, it is the latter which prevails.
Peoples should exercise the right of self-determination in a peaceful and democratic manner. States should facilitate such an exercise effectively, under conditions of equality, securing a permanent dialogue in their mutual benefit. All the organs of the State are bound by it; creating obstacles to the exercise of the right of self-determination would amount to a serious violation of a fundamental human right and would result in the responsibility of the State (see Permanent Court of International Justice, Chorzow Factory Case).
The right of self-determination exists in the internal national order of all the Member States of the United Nations, since it is jus cogens, an imperative norm of superior hierarchical rank, of mandatory compliance in accordance with the Charter of the United Nations. Pursuant to article 103 of the United Nations Charter (the supremacy clause), the Charter prevails over other treaties and agreements.
The denial of the right of self-determination (article 1 of the International Covenant on Civil and Political Rights) is frequently associated with the violation of other fundamental rights, including the right to personal integrity, the prohibition of torture and degrading treatment (article 7 ICCPR), the prohibition of arbitrary arrest or detention (art. 9 ICCPR), the right to a fair trial before a competent and impartial public court and the prohibition of trying civilians before military tribunals (art. 14 ICCPR), the right to access to information and freedom of expression (art. 19 ICCPR), the right to peaceful assembly (art. 21 ICCPR), the right to association (art. 22 ICCPR), the right to participate in the conduct of public affairs (art. 25 ICCPR), the right to equality and non-discrimination (art. 26 ICCPR) and the special rights of minorities (art. 27 ICCPR).

Given the interest and numerous inquiries received on the situation in Catalonia, this document examines the recommended application of the referred “Notes” to the specific case of the CATALAN PEOPLE, under the jurisdiction of the KINGDOM OF SPAIN.

On the ratification of the relevant international instruments, in this specific case

The first step to consider the application of the right of self-determination in a specific case is to establish whether the State in question has ratified one or more of the relevant international instruments (for details on these, see section 1 of my Notes) and whether they are in force in relation to that State.

Regarding the most important instruments that recognize the right of self-determination, the situation in the case of Spain is as follows:

– Charter of the United Nations (CNU 1945)^[[7]]: In force in relation to Spain since 14 December 1955 through its Declaration of acceptance^[[8]] of the obligations of the Charter and the entry of Spain into the United Nations. Reservations, interpretative declarations, objections or notifications: none.

– International Covenant on Civil and Political Rights (ICCPR 1966)^[[9]]: In force in relation to Spain since 27 July 1977 through the deposit of the corresponding Instrument of ratification^[[10]]. Reservations, interpretative declarations, objections or notifications: none in relation to the right of self-determination.

– International Covenant on Economic, Social and Cultural Rights (ICESCR 1966)^[[11]]: In force in relation to Spain since 27 July 1977 through the deposit of the corresponding instrument of ratification^[[12]]. Reservations, interpretative declarations, objections or notifications: none in relation to the right of self-determination.

In addition to its adherence to the most important international instruments on the right of self-determination, Spain has voted in favor of numerous resolutions of the United Nations to support it.

Conclusion: Spain has committed internationally to abide by the right of self-determination, without any reservation in that respect.

On the incorporation of those international obligations in the national legal order

The next step is to examine how these provisions, to which Spain is bound, are incorporated into the Spanish legal order.

Like many other States, Spain has incorporated them through its ordinary mechanism of reception of international law, which in the case of Spain is Article 96 (1) of the Spanish Constitution:

“1. Validly concluded international treaties, once officially published in Spain, shall form part of the internal legal order. Their provisions may only be repealed, amended or suspended in the manner provided in the treaties themselves or in accordance with the general rules of international law.”

As the Legal Advisor of the Spanish Parliament pointed out in his commentary on this article^[[13]], “According to the constitutional drafting, the treaty is incorporated into the internal order through publication, provided it has been authentically concluded. An internal normative act that transforms the content of the treaty is not required; nor can it be interpreted that the mere conclusion of the treaty without publication is sufficient for its internal applicability. The publication and valid conclusion are required.”

Obviously, the three main instruments referred to in the previous section have been duly published in the Official State Gazette (Boletín Oficial del Estado, BOE) of Spain:

– Charter of the United Nations: BOE nr. 275, of November 16, 1990, pg. 33862 to 33870^[[14]];

– International Covenant on Civil and Political Rights: BOE nr. 103, of 30 April 1977, pages 9337 to 9343^[[15]];

– International Covenant on Economic, Social and Cultural Rights: BOE nr. 103, of 30 April 1977, pages 9343 to 9347^[[16]].

Through these publications in the Official State Gazette, and in application of article 96 (1) of the Spanish Constitution, it is obvious that these international instruments are fully incorporated into the Spanish legal system. Given that such instruments include the recognition of the right of self-determination, it can be concluded that said right is in force in the Spanish legal system.

As indicated in section 7 of my Notes, the fact that some States (and not Spain) may have decided to expressly mention the right of self-determination in their Constitutions is irrelevant. Article 96 (1) of the Spanish Constitution fully incorporates the right of self-determination in the Spanish legal system as if the Constitution mentioned it explicitly (in the same way that any “treaty is incorporated into the internal order through publication”, as noted by the Legal Advisor of the Parliament).

In fact, as it is concluded in section 7 of my Notes, the right of self-determination exists in any case in the internal national order of all Member States of the United Nations, since it is a matter of jus cogens, a mandatory right of higher hierarchical order, whose implementation is compulsory according to the Charter of the United Nations. This was understood, for instance, by the United Kingdom and by Canada, which negotiated the holding of referendums in Scotland and Quebec respectively.

Conclusion: The right of self-determination is fully integrated and in force in the Spanish domestic legal system. It is not necessary to modify the Spanish Constitution in that respect.

On the application of the right of self-determination in the Spanish legal order

Once the validity of the right of self-determination in Spain has been confirmed, it is necessary to examine how it is regulated and how it is applied at the national level.

Spain has not yet explicitly developed rules regarding the exercise of this fundamental right. However, Article 10 (2) of the Spanish Constitution indicates how to interpret its exercise at the national level:

“2. The principles relating to the fundamental rights and liberties recognized by the Constitution shall be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements thereon ratified by Spain.”

Thus, in accordance with the Spanish Constitution, the right of self-determination is applied in Spain in line with the provisions of international law, obviously including its normative and interpretative development. Indeed, the right of self-determination is a fundamental right recognized by the United Nations in its foundational Charter, as well as by the Spanish Constitution through its article 96 (1) (see previous section), and its development is therefore automatically included by Article 10 (2) amongst those that will be interpreted in accordance with the international order ratified by Spain.

The generic description of the international order on the right of self-determination is accurately explained in my Notes. Such a description is entirely valid for Spain because it has not made any reservation in relation to the application of that right, which, in any case, is jus cogens, mandatory according to United Nations law. Therefore, one can refer to my Notes for the details of that international order. We will just recall three key matters which address recurrent questions and comments in this specific case:

The right holders of the right of self-determination are “all peoples” without exception. Any arbitrary limitation of the right of self-determination to some peoples only (for example, to those subjected to colonial domination or subjected to non-democratic or oppressive states) or only during particular times in history (for example, in situations of armed conflict or violations of human rights) would be contrary to international law (for more details and the legal basis on this matter, refer to section 3 of my Notes).
The principle of territorial integrity regulates the behavior of Member States amongst themselves, basically ensuring the safeguard of the territory against any external interference. The right of self-determination is a right recognized to peoples as rights holders, and it is not up to the State to grant it or deny it, not even based on the principle of territorial integrity, unless there is external interference. Otherwise, the exercise of this right would be completely emptied of content (for more details and the legal basis on this matter, refer to section 5 of my Notes).
It is entirely irrelevant to the specific case whether any other United Nations Member State may have violated the right of self-determination vis-à-vis any of its peoples, since it is obvious that the alleged violation of a fundamental right by another Member State (were that to be confirmed by a competent body) does not legitimize another Member to commit a similar violation.

The validity of the right of self-determination, thus defined, is consolidated by the Spanish Constitution at the highest level within the configuration of the Spanish legal system, and is therefore imposed on any norm or resolution of lower rank.

In that respect, as indicated in section 7 of my Notes, any national rule must be interpreted in accordance with the right of self-determination, in the sense of facilitating it and not hindering it. Any internal rule in blatant contradiction (be it legislative, executive or judicial) must yield to this fundamental right and, ultimately, be considered as contrary to articles 96 (1) and 10 (2) of the Spanish Constitution, and therefore unconstitutional, null and void.

Conclusion: In accordance with the Spanish Constitution, the right of self-determination must be applied in Spain in line with the provisions of international law. The current status of international law is developed in my “Notes”. In this regard, it should be recalled that the holders of the right of self-determination are “all peoples” without exception, and that the principle of territorial integrity can only be invoked in the case of external interference by another State and not as a pretext to restrict said fundamental right. The validity of the right of self-determination established by the Spanish Constitution must prevail over the norms or resolutions of lower rank.

On the scope of the term “people”

Having thus established the validity of the right of self-determination in Spain, within the parameters defined in international law, it remains to determine whether there exists in Spain a “Catalan people” that can be considered as the holder of said right within the framework of the Charter of the United Nations, the International Covenants and the Spanish Constitution.

As indicated in section 3 of my Notes, although the definition of the term “people” does not yet exist internationally, in general it is recognized as such to all groups with a common historical tradition, an ethnic or racial identity, cultural homogeneity, linguistic unity, religious or ideological affinity, territorial connection or a common economic life, with awareness of being a people and willingness to be recognized as such.

Notwithstanding the fact that there may be different opinions on the exact terms to define the notion of “people”, it seems beyond doubt that, in any case, there is indeed a “Catalan people” in Spain, which is conscious of being a people and desirous to be recognized as such.

There are in fact more than enough historical, political, institutional, legal, linguistic, cultural, identity , customary and territorial evidences to consider that there is a minority in Spain that considers itself as “Catalan people”, and that is recognized by the State and by Spanish society as such, as well as by the international community.

From a political point of view, we can for example remember that the Generalitat of Catalonia as an institution of self-government has a medieval origin (from 1359 until this date there have been 131 presidents of the Generalitat of Catalonia). After its abolition following the War of the Spanish Succession and the Treaty of Utrecht (1713), and its subsequent restitution, the Spanish Constitution of 1978 declared the objective of “Protecting all Spaniards and peoples of Spain in the exercise of human rights, their cultures and traditions, languages and institutions “, and recognized the” right to autonomy of the nationalities and regions that make it up “.

The evidences of the existence of a Catalan people are so overwhelming and well-known that it seems superfluous to develop them more in detail in this document. References to them are easily available in numerous official sources of the Kingdom of Spain and the Autonomous Community of Catalonia, among others.

The acknowledgment of the existence of a “people” (in this case the “Catalan people”) is without prejudice to possible differences of opinion on the precise geographical area currently occupied by said people, as well as the criteria to define a personal belonging to it (for example, criteria of residence, filiation, self-designation or personal self-identification etc.). Indeed, it is not necessary to limit precisely these sociological questions, which are often fluid, to recognize whether a people exists as such or not.

The precision in these questions would only be necessary to establish, from an administrative point of view, the parameters of a possible referendum or consultation, since they would require a precise definition of the geographical scope for its celebration and its electoral body. But such a level of precision is not required to recognize whether a community of people exists generically as a people or not.

Finally, it should be stressed that the existence of a Catalan people does not contradict that of a Spanish people. Both realities are not exclusive from a sociological point of view, but have been complementary for centuries.

For the legal purpose that concerns us, that is, the recognition or not of the validity in Spain of a right of self-determination for the Catalan people, it is the existence of the latter that is most relevant.

In this sense, the recognition of a “Spanish people” in article 1 of the Spanish Constitution (“National sovereignty resides in the Spanish people, from which the powers of the State emanate”) with the recognition of the right of citizenship is not legally contradictory with the self-determination of the “Catalan people”, which logically flows from articles 96 (1) and 10 (2) of the Spanish Constitution.

In effect, the Catalan people exercised their right of self-determination (internal) by voting in referendum in favor of the Spanish Constitution on 6 December 1978, in force in Spain the Charter of the United Nations since 1955 and the International Covenants since 1977, incorporated by the previous regime. Voting in favor of article 1, but also of articles 96 (1) and 10 (2) of the same Constitution, which form a whole and cannot be separated in the matter at hand, the Catalan people agreed to integrate their sovereignty in the framework of the Spanish people, thus establishing a framework of institutional relationship between the new Kingdom of Spain established by the 1978 Constitution, and the pre-existing Catalan people recognized in the Constitution.

Precisely the right of self-determination recognizes to the Catalan people the status of a political subject able to reconsider the terms of its integration in the Kingdom of Spain 40 years later, in dynamic evolution and in dialogue with the Spanish State. The opposite would be to keep a part of what the Catalan people voted in the 1978 referendum and not the whole.

In any case, even assuming arguendo that the Catalan people somehow had renounced their status as a political subject by voting in favor of Article 2 of the Spanish Constitution (“The Constitution is based on the indissoluble unity of the Spanish Nation, common and indivisible homeland of all Spaniards “), it should be remembered that, according to international human rights law, the right of self-determination is inalienable and imprescriptible (like all fundamental rights), with which a theoretical renunciation by the Catalans of 1978 cannot deprive today’s Catalan people (and future generations of Catalans) of their fundamental right of self-determination. Thus, today’s Catalans are not legally bound by any theoretical renunciation made by a prior generation.

Finally, it should be recalled that, according to articles 26 and 27 of the Vienna Convention on the Law of Treaties (ratified[17] and integrated into the Spanish legal system), Spain cannot invoke any domestic regulation to escape its international obligations such as those they are derived from the adhesion of Spain to the right of self-determination:

Article 26. PACTA SUNT SERVANDA

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 27. INTERNAL RIGHT AND OBSERVANCE OF TREATIES

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

Thus, articles 1 and 2 of the Spanish Constitution must be understood within the framework of the right of self-determination in force in Spain for the Catalan people according to articles 96 (1) and 10 (2) of the Constitution itself, as well as constitutional references to the “peoples of Spain” and to “the nationalities” of Spain, without there being any contradiction between these constitutional norms.

Conclusion: There is a “Catalan people” in Spain that holds the right of self-determination recognized by the United Nations and the Spanish Constitution. The guarantor of the peaceful and democratic exercise of this right is the Kingdom of Spain, which currently exercises jurisdiction over the Catalan people.

On the practical application of the right of self-determination

The conclusions of applying my Notes (sections 1 to 7) in relation to the Catalan people (paragraphs A to D above) are basically the following:

The right of self-determination consists in the ability of peoples to decide their political destiny. The headlines are “all peoples”, including the Catalan people (Article 1 of the Charter of the United Nations and the International Covenants, among others).
The duty bearers of the right of self-determination are “all States” that have been obliged to respect it, including the Kingdom of Spain in relation to the Catalan people (Article 1 of the International Covenants, among others).
The principle of territorial integrity is only applicable in case of external interference by another State in Spanish territory, which is not the case in the present case (Article 2 of the Charter of the United Nations, among others).
The right of self-determination thus defined already exists in the Spanish legal system (articles 96 (1) and 10 (2) of the Spanish Constitution), without it being necessary to reform the Constitution to integrate it.
All the bodies and institutions of the Kingdom of Spain must facilitate the exercise by the Catalan people of the right of self-determination in a peaceful and democratic manner. To create obstacles to it would be to seriously attack a fundamental human right protected at the highest level by the United Nations and by the Spanish Constitution.

Having established these conclusions, it is appropriate to examine the practical consequences thereof, as well as to make recommendations in this regard within the framework of the mandate granted by the member states to the United Nations Independent Expert on the promotion of a democratic and equitable international order, in particular, the mandate “to support the strengthening and promotion of respect for human rights and fundamental freedoms throughout the world”.

RECOMMENDATION Nr. 1: Refrain from OBSTRUCTING the peaceful and democratic exercise of the right of self-determination of the Catalan people

It is recommended that all parties, as well as any organ, institution and public official, refrain from executing public actions or resolutions, whether administrative or judicial, whose objective or consequence is to hinder acts of peaceful and democratic exercise of the right of self-determination. of the Catalan people. In effect, such actions or resolutions should be considered as serious violations of a fundamental human right protected by the Charter of the United Nations, by the International Covenants and by the Spanish Constitution, and normally null and void.

It is also recommended that public officials (state, regional or local) not be ordered to execute such actions or resolutions, and that conscientious objection be recognized if so alleged in view of the serious potential for violation of human rights.

Below are examples of public actions or resolutions that could be considered obstacles to the peaceful and democratic exercise of the right of self-determination (in addition to potentially violating other fundamental rights such as those of access to information, freedom of opinion and expression, of peaceful assembly and association, of public manifestation, and political participation). If so, his abstention would be recommended:

Note: This list is not exhaustive and is offered in an exemplary and doctrinal way to facilitate the practical understanding of the issue. As it cannot be otherwise, only the competent authorities at the national level (and ultimately at the international level) will be able to decide on the compatibility with national and international law of actions related to the peaceful and democratic exercise of the right of self-determination, as well as public actions or resolutions impeding them. The list that follows is generic. For details on specific situations, there are hundreds of complaints from Catalan citizens, voters and demonstrators, as well as two criminal complaints with a list of specific cases forwarded by more than 600 jurists in December 2017 and February 2018 to the United Nations^[[18]^] and the Council of Europe ^[[19]^], and a report ^[[20]^] about restrictions on freedom of information prepared by a group of journalists.

The Spanish Government and other authorities must refrain from adopting:

– Administrative or judicial actions or resolutions whose objective or consequence could be to hinder peaceful and democratic acts of information or demonstration about the right of self-determination of the Catalan people, for example:

– hinder or prevent the peaceful holding of conferences and information events on the right of self-determination of the Catalan people, as well as the celebration of marches or peaceful demonstrations in support of it;

– compel the identification for no apparent reason, and in an abusive and intimidating manner, of participants at said events;

– withdraw and requisition documents of information or publicity about such events, or about the right of self-determination of the Catalan people in general; prohibit the use of separatist flags in events, and confiscating them;

– blocking publications, as well as closing websites and web pages dealing with such events or the right of self-determination of the Catalan people in general;

– Administrative or judicial actions or resolutions whose objective or consequence could be to hinder peaceful and democratic acts of organization or support of a consultation or referendum to gather the opinion of the Catalan people on the exercise of their right of self-determination. Indeed, consultations or referendums conducted in a peaceful and democratic manner constitute a reliable method to poll public opinion and avoid artificial consent in order to guarantee the authenticity of the expression of public will in an environment free of threats and the use of force. They are standard instruments to facilitate the peaceful and democratic exercise of the right of self-determination, and actions or resolutions of hindrance could de facto prevent the exercise of such right, for example:

– hinder or prevent the dissemination of information and publicity normally carried out in public and private media; make abusive entries and records in the media and identify journalists in an abusive manner; close websites, web pages and applications (even from a political party); withdraw and requisition information or advertising documents; remove posters, banners and advertisements from the public thoroughfare, even if they were in usual places to do so, and even remove them from private balconies; compel the identification of persons related to such acts in an abusive and intimidating manner;

– hinder or prevent the peaceful holding of conferences, demonstrations and other events on the consultation or referendum; compel the identification for no apparent reason, and in an abusive and intimidating manner, of participants at said events;

– obstruct or prevent the logistical organization of the consultation or referendum; make abusive entries and registrations in official bodies and subcontracted companies; conduct wiretaps and stop, interrogate and / or imprison public officials and businessmen who could be facilitating the logistics of such consultation or referendum; hinder or prevent the normal use of public financing mechanisms; close logistic facilitation websites and web pages; requisition voting materials such as ballots; violate institutional and private correspondence and seize postal material related to such consultation or referendum;

– on the day of the consultation or referendum, violently assaulting crowds of citizens waiting to vote or peacefully demonstrating before polling stations, causing injuries of varying severity to 1066 persons (58% over 41 years old, 23 over 79 years old, 22 minors, two under 11 years old) who had to be treated according to official health sources^[[21]^] (including a myocardial infarct, loss of vision in one eye, 31 head injuries and 25 fractures); enter by force and cause material damage to schools and voting centers; confiscate ballot boxes and ballots, and close polling stations; use electronic measures to hinder the logistic management of the consultation or referendum. There are two reports of missions of independent international observers^[[22]^] that supervised the referendum as well as a great deal of audiovisual documentation.

RECOMMENDATION Nr. 2: Refrain from CRIMINALIZING the peaceful and democratic exercise of the right of self-determination of the Catalan people

The criminalization of the peaceful and democratic exercise of a fundamental human right, as is the right of self-determination, must not exist among the advanced democracies of the 21st century.

Therefore, it is recommended that all parties, as well as any organ, institution and public official, refrain from executing public actions or resolutions, whether administrative or judicial, whose objective or consequence is to criminalize acts of peaceful and democratic exercise of the right of self-determination of the Catalan people. In effect, such actions or resolutions should be considered as serious violations of a fundamental human right protected by the Charter of the United Nations, by the International Covenants and by the Spanish Constitution, and normally null and void.

Below are examples of actions or public resolutions that could be considered as criminalization of the peaceful and democratic exercise of the right of self-determination, as well as serious impairment of the legitimate functioning of democratic institutions of the Catalan people, and serious impairment of electoral rights. and the representation of elected politicians by the Catalan people (in addition to violating other fundamental rights such as those of access to information, freedom of opinion and expression, of assembly and association, of manifestation, and of political participation). If so, his abstention would be recommended:

The Spanish Government has violated international law by

– opening a criminal proceeding and condemning the 129th President of the Generalitat of Catalonia and members of his Government to the political disqualification for promoting a non-binding popular consultation to gather in 2014 the opinion of the Catalan people on the exercise of their right of self-determination; opening and instructing a new and separate judicial proceeding for the same acts, preemptively seizing the private homes and other assets of the same persons for more than five million euros;

– ordering the opening of investigative proceedings by the Public Prosecutor’s Office against 712 mayors (75% of Catalonia mayors) for giving peaceful support to a referendum or consultation by assigning voting premises, proposing their arrests in case of lack of cooperation;

– opening and instructing criminal proceedings, detaining and / or interrogating numerous persons such as school teachers, computer technicians, comedians or twitters, among others, for the treatment and dissemination of information related to the Catalan process and / or the referendum;

– opening and instructing criminal proceedings against high officials and officials of the Generalitat of Catalonia, particularly in the economic, police and technological fields, arresting and imprisoning some of them for several days, for supporting the Catalan process and / or the referendum;

– opening and instructing criminal proceedings against leaders of Catalan civil society, interrogate them and imprison them without prior trial for an indefinite period (from October 16, 2017), at the request of the Public Prosecutor, for an alleged offense of sedition;

– dismissing the 130th President of the Generalitat of Catalonia and the members of his Government, and intervening in the administration of Catalonia by placing it under the direct instruction of the Government of Spain, dismissing officials and removing charges, among others (note: these measures have been challenged, because article 155 of the Spanish Constitution, on which they are based, does not attribute said powers to the Government of Spain);

– opening and instructing criminal proceedings against the newly dismissed President of the Generalitat, Vice President and members of the Government, at the request of the Public Prosecutor, for alleged offense of rebellion, among others;

– interrogating and imprisoning without previous judgment the newly dismissed Vice-President of the Generalitat and several members of the Government, at the request of the Public Prosecutor; keep the Vice President and a member of the Government in prison indefinitely (from 2 November 2017);

– issuing warrants of arrest against the newly dismissed President of the Generalitat and members of the Government residing in Brussels, at the request of the Public Prosecutor’s Office (note: Spain requested Belgium to arrest and extradite the President and members of his Government residing in Brussels, but withdrew such a request just before the Belgian courts could decide, however, arrest warrants issued for the Spanish territory remain in force);

– dissolving the Parliament of Catalonia and calling for early elections, and supervising them directly, by the Government of Spain on the basis of Article 155 of the Spanish Constitution (note: these measures have also been subject to several appeals for the reasons mentioned in a note previous);

– opening and instructing several criminal proceedings against the President of the Parliament of Catalonia and separatist members of the Parliament’s Bureau, at the request of the Public Prosecutor’s Office, for the alleged offense of rebellion, among others;

– interrogating, and imprisoning in a prison in Madrid for one night, after being transferred in a police van held with handcuffs, to the President of the Parliament of Catalonia, the first authority of the country at that time after the dismissal of the President of the Generalitat of Catalonia; requiring bail, withdrawing the passport and requiring weekly appearances to provisionally release him from prison;

– after calling early elections by the Government of Spain, preventing the participation in the electoral campaign of independent political candidates, including a head of the electoral list and a second head of the electoral list, keeping them in prison without trial; denying his departure at any time during the electoral campaign, thus imposing a situation of inequality of opportunity with respect to other candidates;

– after the holding of the elections, to continue keeping elected officials in pretrial detention and for an indefinite period, thus hindering their functions of political representation; denying them the transfer to prisons in Catalonia, near their representatives and families (in contravention of article 10 ICCPR), keeping them away in prisons in Madrid; denying penitentiary permits so that they can attend plenary sessions of the Parliament of Catalonia establishing a “prolonged legal incapacity”, all without prior trial.

– after the holding of the elections, expanding the list of those investigated for rebellion to presidents and spokespersons of pro-independence parliamentary groups, as well as presidents and general secretaries of pro-independence political parties and the President of the Association of Independent Municipalities. According to the Spanish press^[[23]^], the new resolutions “raise to 286 the total of those investigated by the Supreme Court in the case of rebellion. (…) The list could be extended, since the Guardia Civil attributes the criminal activities to other lower levels.”

– after holding the elections, denying a prison permit to the candidate elected President of the Generalitat to be able to leave prison a few hours and be invested by Parliament as the 131^st President of Catalonia, despite the elected candidate having all of his civil and political rights; deny such request without hearing the parties; denying also a non-face-to-face or delegated investiture, which does not need his physical presence in Parliament, thus ending by de facto denying his right to passive suffrage, all without prior trial.

In short, the actions by the Spanish Government listed above entail violations of articles 1, 7, 9, 10, 14, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights and should be brought before the United Nations Human Rights Committee for adjudication pursuant to the Optional Protocol to ICCPR, to which Spain is a State party[24]. Said actions by the Spanish Government also violate numerous provisions of the European Convention on Human Rights and Fundamental Freedoms and its Protocols, for which the European Court of Human Rights in Strasbourg is competent to adjudicate. Moreover, they are incompatible with the three pillars of the European Union – democracy, rule of law and human rights – contravening article 2 of the Treaty of Lisbon and requiring appropriate action under article 7 of the Treaty of Lisbon. The European Court of Justice in Luxembourg should adjudicate on the matter.

RECOMMENDATION Nr. 3: FACILITATE the peaceful and democratic exercise of the right of self-determination of the Catalan people

My 2014 report to the General Assembly of the United Nations (A /69/272)^[[25]^] affirms and documents the proposition that the peaceful and democratic exercise of the right of self-determination contributes to greater enjoyment of human rights, peace and national and international stability. In effect, the modern perspective on the right of self-determination focuses on its function as a means to promote peace. Thus, respect for the right of self-determination on the part of the States allows maintaining harmonious relations with the peoples under their jurisdiction and constitutes an important strategy to promote national and international stability.

On the other hand, the violation of this right causes instability and can degenerate into situations of conflict that must be avoided through timely and good faith negotiations. In order for human rights, peace, security and stability to flourish, relations between peoples and governmental entities must be based on a genuine and permanent agreement based on a social contract. In case the government violates said contract, the people, as sovereign, must have the democratic right to redefine the relationship.

In this sense, it should be remembered that self-determination does not always mean secession. The right of self-determination entails the intrinsic capacity of the people to decide on their political future, being able to freely prioritize, at a specific historical moment, from a complete integration in a State even without differentiation with other regions (possibly guaranteeing specific cultural, linguistic and religious rights), all the way to secession and full independence, going through different models of regional empowerment, autonomy, or special status in a federal State (in all cases with varying degrees of cultural, economic and political autonomy).

In fact, when all peoples enjoy human rights without discrimination and populations feel that they have the reins of their destiny, their interest in achieving external self-determination (secession) is lower. Arrogance, exclusion, arbitrariness and carelessness on the part of governments can lead peaceful people to despair and violence. Governments have an obligation to protect the human rights of those under their jurisdiction and to adopt confidence-building measures to create peaceful societies governed by the rule of law. In most cases, this can be achieved within the framework of existing state bodies, among other ways, through federalism and other models of autonomy.

However, if there is an urgent demand for separation, the most important thing is to avoid the use of force, which would endanger local, regional and international stability and further erode the enjoyment of other human rights. Negotiations in good faith and the willingness to compromise are therefore necessary.

In this regard, my report to the General Assembly of the United Nations in 2014 (A /69/272) recalled the words spoken precisely by a Spaniard, Mr. Federico Mayor Zaragoza, former Director General of the United Nations Organization for Education, Science and Culture (UNESCO), at a UNESCO conference on the right of self-determination: “In the globalized world of today, the borders between States have become relative[…]. Everything possible must be done to ensure that the immediate political interests of States do not compromise the aspirations of all peoples to freedom and other legitimate rights. There must be a negotiation between all parties to avoid conflicts and find peaceful solutions[…]. The right of self-determination must encompass cultural, linguistic and communication rights, as well as social, economic and political rights, as these are interdependent “(Paragraph 14 of my report).

Mr. Mayor Zaragoza published the following reflection after the independence referendum on October 1, 2017^[[26]^]: “CATALUNYA: it’s never too late for the meeting. It is never too late for the meeting and to approach with serenity the problems that, if they do not find a solution in time, can lead to undesirable situations for everyone. As I have repeatedly indicated in relation to the events that took place in Catalonia, I believe it is fundamental and urgent that a meeting of representatives of both parties takes place without conditions or a priori, addressing the different dimensions of the conflict with serenity and a high level of vision. to conclusions that allow to avoid the serious consequences that could derive. As former Director General of UNESCO, President of the Culture of Peace Foundation and co-President of the University Institute for Human Rights, Democracy and Culture of Peace and Non-Violence (DEMOSPAZ) I wish to join my voice to those who seek it, from different national and international instances, adequately resolve an issue that concerns and challenges us all. “

Based on all of the above, FIVE RECOMMENDATIONS are proposed to facilitate a solution to a common problem, which is shared by the Spanish State and by the Catalan people:

The immediate reconsideration of the measures adopted that may criminalize the peaceful and democratic exercise of the right of self-determination of the Catalan people, particularly those that affect the functioning of democratic institutions of the Catalan people and fundamental human rights, especially those of elected representatives, without waiting for such measures to be formally questioned in international jurisdictional areas. In effect, measures to criminalize fundamental rights is contrary to international law, but from the outset they make a solution to the conflict difficult, with the potential to generate even more instability in the region. In this sense, it is understood, for example, that the Public Prosecutor has the power to modify his request for provisional measures so that elected deputies imprisoned without a trial can be released from prison and that they can begin to fully exercise their political rights in the Parliament of Catalonia.
The recognition that the Catalan people have manifested over the last two decades, and persistently, an aspiration to peacefully and democratically modify their framework of self-government, and that the representatives freely elected by the Catalan people are the legitimate interlocutors to negotiate with the Spanish State on their behalf (just as they were recognized as such by the State when the reform of the Statute of Catalonia was negotiated bilaterally in the last decade).
The urgent start of a bilateral negotiation process in good faith between representatives of the Spanish State and the Catalan people, to jointly examine, without a priori or impositions, the possibilities of reaching agreements satisfy both parties; In this regard, the international community (particularly at the European level and the United Nations) has extensive experience in the provision of mediation and good offices to assist the parties.
The understanding of the parties that any of them should be able to submit proposals or results of said negotiating process to appropriate democratic validation mechanisms, whether representative (parliamentary) or direct democracy (consultation or referendum). In effect, any negotiating process must be accompanied by the participation and consent of the citizens concerned. The details can be the object of the negotiation process (question, census, quorum and majorities etc.). European and United Nations bodies have extensive experience in the matter and can assist in the supervision of a consultation or referendum.
The acceptance by the international community that a refusal of the Spanish State to participate, urgently, in good faith and with a willingness to compromise, in a bilateral dialogue process should, in the current situation, open the possibility to the Catalan people to prioritize alternative ways for the peaceful and democratic exercise of their legitimate right of self-determination, in particular the holding of a binding referendum of self-determination under the direct supervision of the international community.

Finally, as indicated in my report to the General Assembly of the United Nations, the application of the right of self-determination (like that of all fundamental rights) is not of the exclusive competence of the national jurisdiction of the State in question, but is a legitimate concern of the international community, because of the consequences of its violation for the peace and stability of the region. A democratic and equitable international order requires that all States observe the Charter and apply international law in a uniform manner. The best way to ensure world peace and security is for States to observe treaties in good faith (pacta sunt servanda) and apply them in the light of the international human rights treaty regime.

The credibility in the common effort to realize human rights depends on its uniform monitoring, both in developing regions and in developed regions. The rules cannot be applied selectively or à la carte, as some states claim. In addition, the criminalization of the exercise of human rights, including the right to one’s own identity and self-determination, is contrary to the obligation of states to observe treaties and conventions in force. The international community cannot accept repressive spirals anywhere. Exceptions are anachronisms in the 21st century.

For this reason, the United Nations and all its member states, the Council of Europe and all the Member States of the European Union are invited to ensure respect for human rights and fundamental freedoms also in Catalonia, ensure their proper application in relation to the Catalan people, with the aim of continuing to develop their potential to promote peace and stability in Europe.

Prof. Dr. Alfred de Zayas

Independent Expert of the United Nations on the promotion of a democratic and equitable international order (2012-2018)

23 chemin des Crêts de Pregny, CH-1218 Le Grand Saconnex, Geneva, Switzerland

alfreddezayas@gmail.com

May 2018

[1] http://www.ohchr.org/EN/Issues/IntOrder/Pages/Articles.aspx (see under “Open Letter: Right to Free Determination , 12/22/2017”)

[2] http://www.un.org/ga/search/view_doc.asp?symbol=A/69/272&Submit=Search&Lang=S

[3] http://www.ohchr.org/EN/Issues/IntOrder/Pages/IEInternationalorderIndex.aspx

[4] http://www.ohchr.org/EN/Issues/IntOrder/Pages/mandate.aspx

[5] http://www.ohchr.org/EN/Issues/IntOrder/Pages/Articles.aspx (see under “Open Letter: Right to Free Determination , 12/22/2017”)

[6] In this respect, refer to the recent Judgment of the Court of Justice of the European Union of February 27, 2018, in Case C-266/16, which reaffirms once again the pre-eminence of the right of self-determination of the peoples which is a “rule of general international law” fully applicable to the European Union, rejecting in the case in question the scope of application of an international agreement concluded by the European Union that did not take into account this fundamental right (full text of the Judgment at: http://curia.europa.eu/juris/document/

document.jsf?text=&docid=199683&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part= 1 & cid = 446411)

[7] http://www.un.org/en/charter-united-nations/index.html

[8] https://treaties.un.org/doc/source/docs/spain.pdf

[9] http://www.ohchr.org/SP/ProfessionalInterest/Pages/CCPR.aspx

[10] http://www.boe.es/buscar/doc.php?id=BOE-A-1977-10733

[11] http://www.ohchr.org/SP/ProfessionalInterest/Pages/CESCR.aspx

[12] https://www.boe.es/buscar/doc.php?id=BOE-A-1977-10734

[13] http://www.congreso.es/consti/constitucion/indice/sinopsis/sinopsis.jsp?art=96&tipo=2

[14] https://www.boe.es/buscar/doc.php?id=BOE-A-1990-27553

[15] http://www.boe.es/buscar/doc.php?id=BOE-A-1977-10733

[16] https://www.boe.es/buscar/doc.php?id=BOE-A-1977-10734

[17] https://www.boe.es/buscar/doc.php?id=BOE-A-1980-11884