On September 11, 2012 two million Catalans demonstrated in the streets in favor of independence. I myself was present and this much was clear to me. The response given by Spanish politicians has been basically threats, and is based on a simplistic line of reasoning: independence is illegal.
When we remind them of the right to self-determination that Catalans have, the usual response is that this right, in Catalonia, belongs to all Spanish citizens because Catalonia is just a part of Spain. However, there are many facts that support the right of self-determination for Catalonia. To name a few, Catalonia had the status of an independent nation for over 700 years (illegally revoked by the Nueva Planta decree); it is a cohesive territorial and linguistic entity; it has had political representative bodies with a long tradition such as the Generalitat.
However, the most important fact is that this right is included in the Spanish Constitution. This is not a new argument, but it is so important that it is worth explaining it again in depth. I am not a lawyer, I am an engineer, and as such I am used to analyzing facts from a logic point of view. Let’s proceed one step at a time.
What is known as the International Bill of Human Rights (IBHR) is a set of three very important international treaties written after World War II, which were fully adopted in 1976—curiously only months after Franco’s death. These three treaties are as follows:
- The Universal Declaration of Human Rights (UDHR)
- The International Covenant on Civil and Political Rights (ICCPR)
- The International Covenant on Economic, Social and Cultural Rights (ICESCR)
These three treaties have a universal scope, i.e., are applicable to all human beings and the communities they belong to, and they were endorsed by Spain.
The UDHR basically refers to individual rights and does not mention the right of self-determination. However, article 1 of the ICCPR, the only article in Part I, states:
“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.”
Thus this International Treaty signed by Spain includes the right of self-determination of the peoples, and forces Spain to respect and promote this right. On top of that, the ICESCR includes exactly the same wording in Part I, Article 1.
Therefore it is obvious that the people of Catalonia have, in accordance with two of the most important international treaties signed by Spain, the right of self-determination fully recognized. However, according to the Spanish government and the main parties in Spain, this right is not compliant with the Spanish laws and Constitution. Let's have a look at it.
In 1977, during the transition to democracy, but before the approval of the Constitution, the endorsement by Spain of the various treaties of the IBHR was incorporated in the Spanish legislation. For example, in Gaceta Oficial number 103, dated April 30 1977, pages 9337-9343, regarding the ICCPR the King himself says:
“I approve and ratify all its content, and by virtue of this document I approve and ratify it, I promise to comply with it, observe it and enforce all of its parts; therefore in order to ensure its validity and enforceability, I issue this ratification instrument signed by myself, duly stamped and countersigned by the Minister of Foreign Affairs.”
Subsequently, the ICCPR is literally transcribed, including its Article 1, i.e., in the Gaceta Oficial. The following wording is literally included:
“All people have the right of self-determination. By virtue of that right they freely determine their political status and pursue their economic, social and cultural development.
Juan Carlos I, the King of Spain, promises to comply, observe it and enforce it."
One year later, in 1978, the Constitution was approved: article 10, the only article in Title I, refers to the Rights of People as the three treaties referred before: the UDHR, the ICCPR and the ICESCR. The second paragraph of that article states:
"The regulations referred to fundamental rights and freedoms included in the Constitution shall be interpreted in accordance with the Universal Declaration of Human Rights and the international treaties and agreements thereon ratified by Spain.”
In Article 96 of Title II, the Constitution says:
"The international treaties validly concluded, once officially published in Spain, shall be part of domestic law. Their provisions could only be repealed, amended or suspended in accordance with the treaties themselves or in accordance with the general rules of international law.”
Since none of the treaties of the IBHR has been repealed, amended or suspended by Spain, all three are part of Spanish law, i.e. they are mandatory for the Spanish State.
Taking into consideration all of the above, the only logical conclusion is that Spain recognizes the right of self-determination of the people. Therefore the only question that still needs to be answered is whether Catalonia is a nation in the sense of the IBHR? The Spanish government argues that the only ones entitled to vote are the Spanish people as a whole. Well, the Spanish government should read the Constitution carefully, since in its introduction defines the Constitution’s will:
“Protect all Spanish citizens and all the people of Spain in the exercise of human rights, their cultures and traditions, languages and institutions.”
If we take into account that the ICCPR and ICESCR were ratified in 1976, when the drafting of the Constitution started, it is difficult not to see a direct reference to them in this paragraph. It refers to "human rights" and “the Spanish peoples”, in plural, not "Spanish people”, in singular. The Constitution itself recognizes, using exactly the same wording used in UN treaties, that Spain is made up of several peoples, not just one, and these peoples are the ones that have the right of self-determination, and Spain is obliged to respect this right by virtue of these treaties.o make things worse, the Dictionary of the Spanish Language Salamanca is available on the website of the Ministry of Education and Science, which does not support these theories. If you search the word nation in the on-line dictionary, you will find four meanings; the third one is as follows:
“3. A group of people, usually within the same territory, linked by historical, cultural, linguistic or religious reasons, who feel part of a community: the Catalan nation, the Basque nation, the Galician nation. Synonym: country.”
A website of the Spanish Government acknowledges that Catalonia is a nation! The government itself acknowledges, therefore, that Catalonia is a nation, a country, a group of people, and therefore, according to international law (ICCPR and ICESCR), the Gaceta Oficial and the Constitution, Catalonia has the right of self-determination.
Often, the right of self-determination of Catalonia is denied by virtue of article 1, paragraph 2, of the Constitution:
“2. National sovereignty belongs to the Spanish people, from whom the powers of the State emanate.”
There is no contradiction. Self-determination is a right, and as such it may or may not be exercised. While the people of Catalonia have not exercised that right, they have been integrated in the Spanish people, the only political and legal existing subject so far, as part of the Spanish sovereignty. The right of self-determination included in the IBHR grants the right to declare a new political and legal subject. This is precisely what the Catalan Parliament declared on January 23rd, 2013, approving the following Declaration of Sovereignty with 85 votes in favor, 41 against, and 2 abstentions:
“The people of Catalonia are, by virtue of democratic legitimacy, a political and legal sovereign entity.”
From this moment on there are two sovereign peoples, the Catalan people and the Spanish people. Since international law always prevails above domestic law, article 1 of the Constitution should be read only as a description of the legal and political situation at the time of approval, which has now been amended by virtue of a right of determination recognized by both international and domestic law.
Is it clear now why Canada did not oppose the right of self-determination of Quebec, or the UK to Scotland’s? Spain could and should negotiate with Catalonia the holding of a referendum, since this was the will of the people of Catalonia, expressed at the polls last November 25th. Hopefully Spain will come to its senses.
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