The Violation of the Human Right of Self-Determination in Spain

The right of self-determination is a human right, basis of the United Nations and its purposes and a key concept in the most important international Covenants and Charters. It is also an ius cogens norm, the highest category in international law.

Take for example the International Covenant on Civil and Political Rights (United Nations, 1966), Part I, Article 1:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Articles in this covenant are considered colective human rights, although some are not directly included in the Human Rights Declaration. To quote a recent statement (May 2011) by the Human Rights Council of the General Assembly of the United Nations: "[...]the existing international human rights standards [...] of the International Covenant on Civil and Political Rights [...]".

The right of self-determination is also enshrined in the first article of the International Covenant on Economic, Social and Cultural Rights (United Nations, 1966) with the same exact words.

Another relevant example is the first article of the Charter of the United Nations, which states that one of the four purposes of the United Nations is "to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace".

Although the Kingdom of Spain is part of these Covenants, it doesn't recognize the right of self-determination of Catalonia, the Basque Country or anyone else, for that matter. Not only it refuses to recognize the independence of Kosovo, it is the only state in the European Union that states in its Constitution [pdf] that its army has the mission to protect "the indissoluble unity of the Spanish Nation, the common and indivisible homeland" of all its citizens. Although the Spanish Constitution grants some self-government to the different regions in the kingdom, the text, as well as successive decrees by the Constitutional Court, makes it very clear that this self-government exists only because it's granted by Spain and depends on the volition of the Spanish Kingdom, and not in the democratic decisions of the peoples and Parliaments, ignoring that the Generalitat (the institution of Catalan government) was officially restored before the Constitution was approved. In fact this institution was founded between the XIII and XIV centuries and its current President is officially the 129th President of the Generalitat of Catalonia.

Former President of the Basque Country.
Photo: VINCENT WEST / REUTERS

Take the recent case of the Basque Country, for example. Its Parliament approved in 2004 a new political statute for the country based on its free association with Spain on equal footing that included the right of self-determination, in a way similar to Puerto Rico within the United States. This democratic decision was refused by the Spanish Parliament.

After this, in 2008, the Basque Parliament approved to call a nonbinding referendum (because a binding referendum in Spain can only be called by the Spanish Government) about the exercise of self-government by the Basque Country. The Spanish authorities suspended the referendum plans and ruled that the referendum was against the law and the Constitution. A new law was then created to suspend any kind of self-government and imprison the members of any regional government that dared to call any nonbinding referendum without the explicit approval of the Spanish Government.

The Parliament of Catalonia

The Catalans didn't go that far. In 2006 the Catalan Parliament approved a new Statute of Autonomy with the support of 90% of its deputies. The Spanish Parliament substantially modified the new Statute in matters such as economy, justice and recognition of Catalonia as a nation within the Spanish State. Nevertheless, most Catalan political parties still promoted the affirmative vote in the referendum held that year because the new statute was still better than the previous one.

After its approval in the binding referendum, different Spanish regions and political parties took the Statute to the Constitutional Court and, after four years of deliberations, in July 2010 a sentence from this Court removed or modified 41 articles of the new Catalan Statute, including the definition of Catalonia as a nation, the protection of Catalan self-government, language and culture, a fair funding system and a new judicial system for Catalonia, rendering the new Statute even worse than the previous one in many fundamental aspects.

On April 10th 2010, 1.5 million Catalans shouted
"Independence" and "We are a nation, we decide".
Check an aerial video of the march an
hour before it started.

A massive demonstration of 1.5 million people was held in Barcelona on July 10th -just the day before the Football World Cup that Spain won- against the ruling, with its main slogans being "We are a nation, we decide" and "Independence". It was one of the largest demonstrations in the modern history of Europe and is particularly remarkable in a country of 7 milion people. Furthermore, it had the support of thousands of cultural, political and civil organizations, personalities and individuals. Nevertheless, Spain didn't change its mind, and some Spanish TV networks didn't even mention the event, saying that in Catalonia people spent the day at the beach and excited for the possibility of Spain winning the World Cup.

The Catalan President Lluís Companys and the
Catalan government in prison after declaring the
independence of Catalonia in 1932.

After that, on March, 10th, 2011, the Catalan Parliament proclaimed that it is the "Seat of the Sovereignty of the Catalan people" and that the "right of self-determination of all the peoples" is "an inalienable right of the Catalan people", similar to what had already proclaimed in 1989 and 1998 after Franco's nationalist and fascist dictatorship. Of course similar statements had been made even before, including declarations of independence stopped by the Spanish army.

Regardless of the right of self-determination, when Spain negates the right of the Catalans to define themselves as a nation, it is also against a 2006 recommendation of the European Council:

The Assembly believes it necessary to strengthen recognition of every European citizen’s links with his identity, culture, traditions and history, to allow any individual to define himself as a member of a cultural “nation” irrespective of his country of citizenship or the civic nation to which he belongs as a citizen, and, more specifically, to satisfy the growing aspirations of minorities which have a heightened sense of belonging to a certain cultural nation. What is important, from both a political and a legal standpoint, is to encourage a more tolerant approach to the issue of relations between the state and national minorities, culminating in genuine acceptance of the right of all individuals to belong to the nation which they feel they belong to, whether in terms of citizenship or in terms of language, culture and traditions.

The same recommendation acknowledges that the concept of "nation" differs in the different nations, but that being the reason of the disagreement between Catalonia and Spain would only prove that they are separate nations.

Languages in Europe

How can Spain possibly justify these actions that clearly violate the right of the Catalan and Basque peoples to "freely determine their political status and freely pursue their economic, social and cultural development" as stated in the International Covenant on Civil and Political Rights? How is the resulting economic despoiling of 10%+ of Catalan GDP to "freely dispose of [...the...] natural wealth and resources" for "their own ends"? In fact, many well recognized economists have stated [1][2] that Catalonia would be “one of the richest countries in the world” if it were independent.
Is Spain really promoting the "realization of the right of self-determination"?

The Kingdom of Spain alleges that self-determination only applies to colonies and that any other declaration of independence would violate the international principle of territorial integrity. We'll let the International Court of Justice explain:

The International Court of Justice

Several participants in the proceedings before the Court have contended that a prohibition of unilateral declarations of independence is implicit in the principle of territorial integrity. [...] The Court recalls that the principle of territorial integrity is an important part of the international legal order and is enshrined in the Charter of the United Nations, in particular in Article 2, paragraph 4, which provides that:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”.

After quoting previous cases in the international law, the Court concludes that "the scope of the principle of territorial integrity is confined to the sphere of relations between States" and "considers that general international law contains no applicable prohibition of declarations of independence". This means that the principle of territorial integrity only implies that existing states cannot attack each other to take over their territories, but in any case can be taken as a implicit prohibition to the realization of the right of self-determination, including all types of declarations of independence.
Note that although this sentence comes from the ruling regarding the unilateral declaration of independence of Kosovo -which "did not violate general international law"- the Court clearly made the point according to the general international law, and not to the specific case.

Furthermore -as the Court also notes- many other countries have achieved independence in the XX century in Europe. To name just a few from the second half of the century until now:

• 1960 Cyprus
• 1964 Malta
• 1991 Ukraine
• 1991 Croatia
• 1991 Georgia
• 1991 Armenia
• 1991 Moldavia
• 1991 Belarus
• 1991 Kazakhstan
• 1991 Macedonia
• 1991 Azerbaijan
• 1992 Bosnia and Herzegovina
• 1993 Czech Republic
• 1993 Eslovaquia
• 2006 Serbia
• 2008 Kosovo

Of course, Spain concerns have little to do with the enforcement of the law, as it's obvious if you know the history of this country that never peacefully recognized the right of self-determination of its colonies; how it has been trying [1][2][3] to eradicate the Catalan language and culture for centuries and by all possible means; or more specifically and recently how Spain tried to convince the UN Security Council not to recognize the right of self-determination of the Western Sahara -a former Spanish colony now part of Morocco- and proposed abandoning "decolonization" vocabulary such as sovereignty and independence in favor of "globalization" terms such as regionalization, autonomy, and self-rule. The leaked American cable that made this information public also noted that the non-paper distributed by Spain was "also clearly colored by and suggests a solution similar to the approach which Spain has taken with its own region of Catalonia".

The Spanish Empire

Thus, it is clear that Spain is violating the right of self-determination and that the international community is not in any way trying to enforce the international law, which is not unexpected because at the moment states retain the absolute power in their territories, which is the same reason why many countries still violate human rights such as freedom of expression without having to face any drastic consequences.

Images obtained from Google where not stated differently.
For information and data sources follow the relevant links.