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)

August 02, 2012

Catalonia wants independence, not Spanish austerity


Spain's dual crises of social and economic unrest,
paired with an unprecedented loosening of the bonds that tie it together
as a nation, make it perhaps the most apt microcosm of today's European
Union - warns think-tank


Thousands of miners entered Madrid
last week, singing loudly, setting off fireworks and waving signs and
banners. Some walked as far as 250 miles from the mining regions along
Spain's northern coast. The marcha negra - black march - ended with a
violent clash with police in front of Spain's Industry Ministry
building. Over the ensuing days - labourers and civil servants rallied
throughout the city, blocking streets and railways. Some women wore
black veils as though for a funeral. The target of these protests was
the austerity package passed last Wednesday, by the embattled government
of Spanish Prime Minister Mariano Rajoy - whose future, the miners
reminded him, was "darker than our coal".

The €65bn package
consists of European Union-recommended tax increases, public sector
spending cuts, city and regional government overhauls and the
liberalisation of the transportation sector. The hope is that these
measures will help the country, having recently requested up to €100bn
in European aid for its banks and avoid an international state bail-out
along the lines of Greece, Ireland and Portugal. With government
revenues and housing prices falling and debt on the rise though, it may
well prove to be a doomed effort.

And yet as workers from
throughout the country converge on Madrid for protests - a second,
altogether different, movement is gathering strength in one of Spain's
wealthiest autonomous regions - Catalonia. There, thousands have
gathered throughout the summer in towns and villages to call for much
more than an end to austerity. Their goal is complete independence for
their region of over 7.5 million from the Spanish state. Catalonia, like
the Basque Country, has a long and complicated history with
Castillian-dominated Spain. But the crippling economic crisis,
resentment over transfers of roughly 8 to 9 per cent of Catalonia's
gross domestic product to poorer parts of Spain - and incidents such as
recent Spanish Supreme Court opposition to Catalan language-immersion
programmes in the region's pre-schools has combined to form a
three-layered gift for the independentistes.

According to recent
polls conducted by the Centre d'Estudis d'Opinió, 51 per cent of all
Catalans would vote for independence from Spain in a hypothetical
referendum. This represents a six-point percentage increase in the past
four months alone. When asked the broader question of what Catalonia
should be vis-à-vis Spain, 34 per cent said "independent" - a 20-point
percentage increase since the pre-crisis days of 2006. Following the
release of the polling data, Spanish Deputy Prime Minister Soraya Sáenz
de Santamaría called on all Spaniards to understand that with the
country's other concerns "now must be a time for stability". Catalan MP
Josep Antoni Duran sought to downplay the results, arguing that a
majority of Catalans would still prefer increased autonomy over outright
independence.

Yet between now and September, more than 200
pro-independence rallies and marches are scheduled to take place across
Catalonia; building up to a massive demonstration on September 11, the
region's national holiday. The plan from there, according to the Catalan
National Assembly - or ANC - will be to organise a referendum on
Catalonia's status for the following year and proclaim full independence
in 2014. "For us, independence is a question of dignity," says Carme
Forcadell, head of the ANC. "We don't want to live on our knees within
Spain when we could stand on our own feet in Europe."

Spain, with
unemployment rates of close to 25 per cent, youth unemployment over 50
per cent, increasing emigration and expectations of long-term recession
and austerity - should be watched very carefully by policy-makers in
Brussels and Washington. Its dual crises of social and economic unrest,
paired with an unprecedented loosening of the bonds that tie it together
as a nation, make it perhaps the most apt microcosm of today's EU. As
the country drifts towards a possible state bail-out - the tightening
screws of la crisis are threatening to drive fissures through every
aspect of its social, political, and economic life; and push it into the
uncharted waters of possible, although still unlikely, disintegration.

During
the recent Euro 2012 football tournament, the uglier side of
pan-European tensions was often on display. "Without Angie, you wouldn't
be here," chanted German fans during the game with Greece, referring to
German Chancellor Angela Merkel. "We'll never pay you back," replied
the Greeks. At a wedding I recently attended in Catalonia, I found only
one fellow guest tracking the status of the ongoing match between Spain
and France and he was quietly rooting for France. "We Catalans are tired
of seeing our tax money go to Spain," he said, cringing as news of
another Spanish goal popped up on his phone. "I guess you could say we
understand how Germany feels."

Nicholas Siegel is a senior
programme officer at the German Marshall Fund of the United States
think-tank, which originally published this paper as part of its Transatlantic Take series

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