LEGALITY OF THE UNILATERAL DECLARATION OF INDEPENDENCE

Statement in reference to the debate on the sovereignty process

The Committee for the Defence of the Rights of the Person Il • Bar Association of Lawyers of Barcelona, ​​Catalonia considered an inalienable right to decide their future

Over the nearly forty of its existence, the Committee for the Defence of the Rights of the Person of the College of Lawyers of Barcelona wanted to be present in all discussions of legal and social significance that have occurred in our country , as they could affect the fundamental rights of the person, both individual and collective. At present, in the Catalan town is destined to make decisions that can determine its future as a nation, the Defense Commission can not be absent from the debate, exciting and passionate, which was started around self-determination, and that is why he wants to express its position on this, obviously within the legal framework that is proper.

First, we show that the right of self-determination is a fundamental and universal right of all peoples, international law in force from the United Nations Charter (Articles 1 and 55), 1945, and expressly proclaimed in Article 1 of the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, adopted by the General Assembly of the United Nations force since 1976 and 16-12-1966. In international practice, however, the right of self-determination had been recognized long before. We believe in the Declaration of Independence of the United States or the creation of new states from the dissolution of the Austro-Hungarian Empire, the Ottoman and Russian at the end of the First World War. The right of self-determination has resulted in the number of sovereign states in the world has quadrupled since 1900 to date, and twenty of these new states are the result of the secession of a part of territory of a State to constitute a new one. Specifically, in Europe are 14 cases of secession since 1900: Norway Sweden (1905); Finland Russia (1917); Ireland UK (1922), Iceland Denmark (1944), Lithuania, Estonia and Latvia the USSR (1990-1991), Slovenia, Croatia and Bosnia in Yugoslavia (1991), Slovakia Czechoslovakia (1992); Montenegro Union of Serbia and Montenegro (2006), Serbia and Kosovo (2008). The process of self-determination and the creation of a new sovereign state was different in each case - the constitutional provision, agreed separation or, in most cases, unilateral declaration of independence - but in all of them the ultimate legitimation process has been given by the majority decision of the people, freely and democratically expressed by way of referendum.

A particular trend in international law doctrine has been defended a restrictive interpretation of the right of self-determination, which is considered applicable only to decolonization. Certainly, there is a clear international legal framework, consisting of numerous United Nations resolutions, establishing policies and procedures for availing the exercise of this right by peoples in colonial situation. This legal framework, however, is not sufficiently developed in relation to the processes of secession in a colonial situation. However, the lack of regulation of the exercise of a right in a particular situation does not mean denial of its existence, from the time that this law has been formulated in a general setting, without exception, as If the right to self-determination. Moreover, the International Court of Justice in The Hague in 2004 a report on the Wall in the occupied Palestinian territories, ruled in favor of self-determination as a universal right erga omnes, which must be respected for all states. The same International Court of Justice, in its Resolution 22-7-2010 important, in response to a request from the United Nations General Assembly on whether the unilateral declaration of independence of the territory of Kosovo, adopted 17-2 -2008, or was not under international law, said there no rule in international law that prohibit unilateral declarations of independence, so they should be considered consistent with international law.

In the case of Catalonia, the possibility of exercising the right of self-determination is being denied by the government and the majority of institutions in Spain, which opposes even that submitted the question popular consultation. The arguments of this categorical opposition can be reduced essentially to two. First states that sovereignty resides in the whole people of Spain. The right to decide on the separation of Catalonia from the rest of the state does not match, then the Catalan people separately, since this is not a sovereign political entity. The second argument is to say that, even if the condition was attributed to the people of Catalan political entity with the right to decide the secession of Catalonia in Spain would, in any case, illegal as they come into • conflict with the law, and in particular with the Spanish Constitution, which recognizes the right of self-determination in any territory of the state, proclaimed in Article 2 "the indissoluble Wave Spanish Nation, common homeland e todos los Españoles indivisible. "

Regarding the first argument, we say that this is what is called in elementary logic begging. It is obvious that if the Catalan people would already be subject to independent sovereignty. The question to resolve is whether the Catalan town meets the conditions for which he recognizes the right of self-determination, that is, the condition of people with the ability to decide for himself to become sovereign. In this connection we must remember that the Charter of the United Nations and the International Covenants aforementioned attribute the right to decide the people, not the states. In this sense, it is not the community to discuss the status of Catalan political subject of the right to decide: a millennial history, a language, a civil law itself, a different social and economic structure, political institutions and a expressed will for centuries to maintain their own identity, fully endorse the national reality of Catalonia, on the other hand recognized in the preamble to the Statute of Autonomy, even in version decapitated by the Constitutional Court .

Certainly, the current constitutional framework does not allow determination of Spanish Catalonia. We are therefore facing a possible contradiction between two legitimacy: the legality of the current constitutional and democratically expressed will of a national community. Do not forget, however, that in a democratic society the law is nothing more than the expression of the popular will, through their political representatives in the legislature made. This conception, radically democratic, can not accept the abduction of the popular will in this case represented by the Parliament of Catalonia in the name of a law imposed coercively. In a democratic society, unlike a dictatorship is not the law that determines the will of the people, it is this that creates and modifies the law. That is why we believe that the Spanish government would have no legitimacy to oppose the decision of the Parliament of Catalonia to give voice to citizens so that freely and majority expresses its will-in the affirmative or negative in- relation to the creation of a sovereign state Catalan. In the case of an affirmative answer to this question, the Spanish government would have no legitimacy to oppose into a negotiation process to establish the terms of secession by mutual agreement and resolve the complex consequences of it; and should implement constitutional and legal changes necessary for the process was developed in an orderly and equitable. This is the criterion established by the Supreme Court of Canada on the validity of the referendum on secession of the province of Quebec in 1995. In its 1998 opinion the Court recognizes that a clear majority, expressed through a clear question, would give democratic legitimacy to the secessionist initiative and force the Canadian government to negotiate the terms of separation.

The unilateral declaration of independence proclaimed by the Parliament of Catalonia, would be justified in international law if the Spanish government prevented the conclusion of the public consultation on the creation of a new state, or refuse to accept so the same result. In this case, the declaration of independence by the Parliament would give immediate effect to the new state of political existence. Indeed, this would meet the minimum criteria for permanent population, territory and political authority itself determined that define a state as they were first formulated by the Montevideo Convention on Rights and Duties of States, adopted on 26-12 -1933. The same Convention states that the existence of a political state is independent of recognition by other states. This principle, known as constitutive theory of the state, was ratified by the opinion of Badinter Arbitration Committee created by the then European Economic Community on 27-9-1991 for legal responses to legal questions raised by the fracture of the Socialist Federal Republic of Yugoslavia. In its opinion, the Committee Badinter argues that the existence of states is a matter of fact, without the recognition by the international community is a crucial condition of statehood.

The crucial question of the legal legitimacy of a unilateral declaration of independence in conflict with the law has been settled by the aforementioned resolution of the International Court of Justice in The Hague on the case of Kosovo. The resolution states that the proclamation of Kosovo as independent and sovereign Kosovo Assembly did not operate as institutions of self-government administration and within the existing limits of that law, on the contrary stood aside and outside the scope of it, and only by virtue of the powers afforded democratic representation of the popular will. The declaration of independence was not intended, therefore, produce their effects within the existing legal order, but creating a new law. In conclusion, the Court considers that international law does not exist in any rule that prohibits the unilateral declaration of independence by the Kosovo Assembly, once confirmed the impossibility of a negotiating process with Serbia, is not contrary to the international legal order.

On the basis of legal arguments mentioned above, the Committee for the Defence of the Rights of the Person Il • Bar Association of Lawyers of Barcelona believes that it is an inalienable right of Catalonia, national community the power to decide on the future, either within the state where it is integrated or separated to form a new sovereign state, according to the majority will decide, democratically and peacefully expressed the citizens.

Committee for the Defence of the Rights of the Person Il • Bar Association of Lawyers of Barcelona

Barcelona, ​​January 2013