Catalonia crisis: Rule of law vs democratic opposition

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Jaime S. Bautista

Last of 2 parts
THE United States of America also holds that there is no right of a state to secede from the union. President Abraham Lincoln had argued that “the states were not sovereign before the Constitution but instead, they were created by it.” The US Supreme Court ruled in Texas v. White in 1869 that “The union between Texas and the other states was as complete, as perpetual, and as indissoluble as the union between the original states. There was no place for reconsideration or revocation, except through revolution or through consent of the States.” The Court further held that all acts of secession were illegal according to the “perpetual union” of both the Articles of Confederation and the subsequent Constitution for the United States. The exceptions were “revolution or the consent of the States,” but without either, secession could never be considered a legal act. In more recent times, Supreme Court Justice Antonin Scalia, who was asked to comment on this issue of secession, said: “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede” as the Pledge of Allegiance clearly illustrates through the line “one nation, indivisible.”

On the other hand, the federal states in the USSR and Yugoslavia succeeded in obtaining their independence. The secession from a union also depends on political factors. In the USSR, the weakness of the USSR government headed by Mikhail Gorbachev allowed the disintegration of the USSR. The Baltic states of Lithuania, Latvia and Estonia were the first to withdraw from the USSR. They had gained international support, as they were independent sovereign states before their annexation by the USSR. The Belavezha Accords signed by Russia, Ukraine and Belarus signaled the end of the USSR. They proclaimed that the Soviet Union of the three had ceased to exist and announced the formation of the Commonwealth of Independent States. The three were the most powerful federal states, and were original members of the United Nations (Russia is the successor state of the USSR). The other federal states in the Caucasus and Central Asia confirmed the dissolution of the USSR when they signed (except for Georgia) the Alma-Ata Protocol.

In the Socialist Federal Republic of Yugoslavia, its Constitution permitted the referenda on independence held by Slovenia, Croatia, Macedonia and Bosnia-Herzegovina. Its six constituent federal states were nominally equal members of the federation with the right to separate. After the dissolution of the SFRY, Serbia and Montenegro formed a new federal union but Montenegro subsequently seceded from this union.

Referenda in Crimea and Catalonia
The referendum in Crimea in 2014raisedlegal issues similar to those in Catalonia. Both Crimea and Catalonia were autonomous regions when they held their referendum. Ukraine argued that the referendum in Crimea was unlawful because it violated the provision of the Ukrainian Constitution that only a referendum where all the citizens of the Ukraine had a right to vote could approve territorial changes and because the Supreme Council of Crimea was not authorized to conduct the referendum.

The West supported Ukraine’s position that the referendum violated both the Ukrainian and Crimean constitutions, and the territorial integrity of Ukraine. The Council of Europe’s Venice Commission stressed that self-determination was to be understood primarily as internal self-determination within the framework of the existing borders and not as external self-determination through secession.

Kosovo as a precedent
Russia, however, justified the unilateral declaration of independence citing Kosovo as the precedent. Serbia protested Kosovo’s declaration of independence on the ground that Serbia enjoyed sovereignty over Kosovo and that the declaration represented “a forceful and unilateral secession of a part of the territory of Serbia.” The UN General Assembly supported Serbia’s request for an advisory opinion from the International Court of Justice.

The United States and many countries in Western Europe recognized Kosovo’s independence although it was an autonomous province of Serbia. Spain and the Philippines and other countries affected by separatist sentiments declined to recognize Kosovo.

ICJ opinion
The ICJ addressed only the issue posed to it by the UN General Assembly, which was: “Was the unilateral declaration of independence in accordance with international law? The ICJ stated that based on state practice in the 18th, 19th and early 20th centuries, there was no international law prohibiting the unilateral declaration of independence. Neither did the emergence of the principle of self-determination in the second half of the 20th century produce a new international law from the creation of new states outside this principle. The ICJ, by a vote of 10 to four, concluded that the Kosovo Declaration of Independence did not violate any norm of international law. The ICJ declined to give its opinion on corollary issues such as the effect on territorial integrity or the issue of “remedial secession,” stating it was unnecessary.

The ICJ, however, commented onthe UN Security Council Resolutions which condemned the unilateral declarations of independence of Southern Rhodesia, northern Cyprus, and the Republika of Srpska (located in Bosnia-Herzegovina). The ICJ noted that the illegality attached to those declarations stemmed not from their unilateral character, but from the unlawful use of force or other egregious violations of norms of general international law. In the case of Kosovo, the ICJ noted that the Security Council never suggested that there may have been such a violation. The exceptional character of those UNSC Resolutions appear to confirm that no general prohibition against unilateral declarations of independence may be inferred from the practice of the Security Council, the ICJ concluded.

Kosovo’s recognition was treated as a case sui generis because Kosovo was under UN interim administration and the ICJ did not find any violation of UN Security Council Resolution 1244 and the regulations promulgated there under by the UN Mission in Kosovo.

Final remarks
Secession is both a legal and political issue. Catalonia has no right to secede under either the national law of Spain or the norms of international law. The Spanish government, however, was constrained to call autonomous elections to restore normalcy and reconciliation. The autonomous elections will again provide a forum to examine the issues that gave rise to the unilateral secession. The hope is that the electoral debates will also involve meaningful dialogue and understanding and lead to convivencia and harmony.

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