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15th Aug 2022

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Catalonia has legal grounds and legitimacy to be its own state

  • The Yes to independence side won with around 90 percent, in a vote that was declared illegal by the Spanish constitutional court and which the Spanish government and the EU do not recognise. (Photo: Nonegraphies)

Catalonia has the legal backing and the legitimacy to have its own state.

The events in Catalonia are shaping up a new political reality not only within the Spanish state but also at the European level.

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Regardless of the final outcome of last weeks' events, what has happened in Catalonia will be documented by historians and quoted as legal precedent.

The attention devoted by the international press and social media to the issue, has put Catalonia in the spotlight of main opinion makers and legal experts.

But it is clear that mainstream media follows mainstream political discourse and are supportive of the status-quo, which claims that the Catalan government has breached the "rule of law" by holding an independence referendum that was considered illegal by the Spanish Constitutional Court.

Many at the Spanish level, but also at the European level, publicly declared their opposition to the referendum itself. And some went as far as justifying the brutal and violent use of police force, as a necessary instrument to protect and preserve the "rule of law", against peaceful citizens.

Breach of EU Treaty

A clear breach of the EU Treaty and international law, this is unacceptable.

We agree that the "rule of law" must be preserved. But the "rule of law" is not only what is written in constitutions or codified in laws; otherwise, the laws of Nazi Germany or the Apartheid, for instance, could also be legitimised under this same principle.

What the "rule of law" essentially means is that citizens have political rights in relation to the state. In this respect, the Spanish government is in breach for failing to listen to the Catalans; for repeatedly refusing and disregarding dialogue and negotiation; for granting a political role to the army; and threatening to send the army to Catalonia.

Moreover, the Spanish government's use of violence is in violation of the human rights framework, which strictly limits the conditions for "justifiable" use of police violence against civilians. Violence by a government against citizens can only be used when it is absolutely necessary, which was obviously not the case in Catalonia.

So we call on the EU to unconditionally condemn the violence demonstrated by the Spanish government on 1 October against EU citizens. It is a blatant violation of Article 2 of the EU Treaty, which defines the rule of law and human rights.

Self-determination

Much now is being said about the illegal character of Catalonia's independence referendum and its lack of legitimacy, ignoring the fact that 90 percent of Catalans, who have voted, are in favour of independence.

But quoting a report by the Institute for Research on Self-Determination of Peoples and National Independence (IRAI), "Catalonia can rely on self-determination when read in conjunction with the democratic principle, which stipulates that the authority to govern must be based on the will of the people."

Referring to the democratic principle of self-determination in relation with the rule of law, the Supreme Court of Canada, regarding the succession of Quebec, has ruled that: "The consent of the governed is a value that is basic to our understanding of a free and democratic society. Yet democracy in any real sense of the word cannot exist without the rule of law. It is the law that creates the framework within which the "sovereign will" is to be ascertained and implemented. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. Equally, however, a system of government cannot survive through adherence to the law alone. A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people…"

The right to vote in a referendum is a manifestation of the freedom of expression, assembly and association recognised as fundamental human rights in the European Convention on Human Rights and the International Convention on Civil and Political Rights. Therefore, it should not only be guaranteed but its exercise encouraged.

Time to negotiate

We agree with the fact that the international system rely on preserving the territorial integrity of states, but that does not prohibit Catalonia declaring its independence under international law. In fact, the International Court of Justice, in the Kosovo case (2010), clearly stated that no rule of international law prohibits a unilateral secession.

The Catalan people have clearly declared their independence last Sunday (1 October), both legally and democratically.

It is now time to sit down and negotiate on the terms of separation.

Author bio

Francois Alfonsi is the president of the European Free Alliance (EFA).

Disclaimer

This article is sponsored by a third party. All opinions in this article reflect the views of the author and not of EUobserver.

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