August 27, 2012

Alfons Lopez Tena. The democratic principle versus self-determination

From the juridical point of view, a  new State needs to be recognized by the other existing States. [...] However, in front of the contemporary process of generation described, the normal dynamics by the existing States is simple, recognizing the emerging ones. And the process to achieve it is juridically expressed within the sentence by the International Court at The Hague about Kosovo.

This country [...] proclaimed independence from Serbia through a totally unilateral declaration that was not a referendum nor through via the Parliament this is, the same way that the United States of America declared independence from the United Kingdom two-hundred years before. Its democratically elected representatives met and declared independence, not in a formal Parliamentary meeting. In Kosovo, it was done by a very large majority of members of its Parliament as well as its Prime Minister, without a vote, signing a document. As if now, a majority of the Members of the Catalan Parliament joined a meeting and signed a document proclaiming independence, being it all. So that, even and the lack of parliamentary formality that might have threat the legality of the act, the Hague's Tribunal fully endorsed it.

Some interesting points from that sentence and the concurring favourable opinions are that full legal legitimacy is given to the act because is performed by the democratically elected representatives of the people, without entering in the disquisition whether there is the right of self-determination or not, who is the subject of this right nor where or who is applicable to. Contrarily, the opinions of who deny the recognition of Kosovo -Spain, Russia and China, were founded precisely in the negation of the existence of the right of self-determination by Kosovo, under the base that this right is only applicable when in colonial situations and that the relationship Kosovo-Yugoslavia was not of colonial character.

It must be said that the Court not even entered in considering if Kosovo had the right or not, but simply if there was any international principle of law contrary to the proclamation of independence just made by the democratically elected representatives of the people of Kosovo.

Secondly, the Court proclaimed that in case of a proclamation of independence, juridically legitimate, by one territory, it is immediately recognized by the existing States, and that was the guarantee for an independence based on the democratic principle. In spite of the Yugoslavian Constitution proclaiming that Kosovo was an integral part of the Serbian Nation and that its independence required a reform of the Constitution. As Kosovars were a minority in respect with the total Yugoslavian population, the reform of the Constitution -albeit was formally possible, in fact appeared blocked.

The sentence at The Hague's Court continues with the line pointed the Canadian Superior Court, as enquired by the Canadian Government. They wanted to know if a clear majority in favour of independence in answer to an explicit question in Quebec about independence would be binding for the Canadian Federal Government. The Court answered fistly, not to enter within the right of self-determination -that is very badly defined in terms of international law, and secondly, reaffirm the democratic principle; when there is a clear majority that pronounces democratically, the Canadian Government must entertain this pronouncement and negotiate the conditions of secession in good faith.

This is the judicial framework that has guaranteed the latest independences, such as Southern Sudan, possible through a referendum and the Dutch Antilles, through Parliament.

In summary, from the legal point of view it is clear. Democratic principle guarantees the independence of the new State, whether it is decided by its population through a referendum or indirectly through their democratically elected representatives, be it via a formal parliamentary session or via a non-parliamentary meeting by its elected members. And about this topic there is already jurisprudence and cases that not only guarantee the legality of the declaration, but also the international recognition by the other States.
The steps, in any case, must be as follows:
  1. Win an election.
  2. Form a Government with the intention to either call a referendum or proclaim independence.
  3. Call for international recognition of the new State.

And all this can be done in accordance with the State in which they form part of, because the former has given up with the idea to keep a part of its territory, or against it, precisely because there are the mechanisms agreeing with making it possible. (Per què volem un Estat propi? Seixanta intel·lectuals parlen de la independència de Catalunya, pg. 117 i ss.)

Let's go straight. There is no reason why not. Only fear -cultivated during 300 years, makes us try uncertain and bendy pathways with excuses of prudence and false securities. Declare first independence and then validate it with a referendum made under our wills and without the direct pressure from Spain.

Alfons Lopez Tena

Catalan MP for Solidaritat per la Independència de Catalunya (SI)


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