The leaders of Catalan independentists try to sustain in international law legality of referendum of self-determination of next October 1, suspended by Constitutional Court, and possible secession of Catalonia in case of yes to succeed in this popular consultation without warranties. Political and academic nationalists cite various rules and resolutions of UN that recognize right of self-determination of peoples, but, with few exceptions, obviate in ir analysis a key element: se refer exclusively to situations of colonial rule or to minorities within a State subject to oppression or discrimination, something that does not fit in case of Catalonia.MORE INFORMATION
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The pro-independence leaders have used UN resolutions to practical impossibility of finding right Spanish a legal loophole to secede without a reform prior to Constitution. In this sense, Spain is not an exception in european and international scene. No constitution of western countries covers amputation of a part of its territory.
Some countries, such as France, veto even possibility of modifying constitution to allow for secession: “No procedure of revision may be started or carried forward when referring to integrity of territory”, established by Constitution gala, in its article 89.
“this is what Is known as a clause of inviolability,” says Robert White, professor of Constitutional Law at University of Santiago de Compostela. “It is understood that territorial unity, existence of State is previous to Constitution itself”. In Spain, explains this jurist, Constitutional Court has established that it could open possibility of incorporating right of self-determination of a part of territory if you reform Magna Carta, although a sector of doctrine considers this unthinkable. “The Constitution regulates political order was fundamental, but does not create Spain, that exists before, at least as a modern state from Courts of Cadiz in 1812, and as a territorial unit from FIFTEENTH century. It doesn't seem logical to be destroyed in a Constitution,” says White.
In Germany, parties that “tend to distort or eliminate regime of fundamental freedom and democracy, or of endangering existence of Federal Republic of Germany, are unconstitutional”. The Federal Constitutional Court, equivalent to Spanish Constitutional Court, is in charge of putting outside of law to this type of game. Last January, this body of germans, he dispatched petition of a minority pro-independence party of Bavaria, to hold a referendum of independence: “In Federal Republic of Germany, which is a nation-State based on constituent power of German people, states are not owners of constitution. Therefore, re is no room under Constitution for individual states try to secede. This violates constitutional order".
Only constitutions of Ethiopia and of state caribbean consisting of islands of St. Kitts and Nevis provide for right to secede part of its territory. In african country, standard dates from 1994, after secession of Eritrea. Article 39 provides that: “All nations, nationalities and peoples in Ethiopia has an unconditional right to self-determination, including right to secession”.
The professor of International Law at Complutense University of Madrid José Antonio Perea, in an article of 2014 titled The secesionismo Catalan in context of International Law, analyzed four conditions that international right demands for a people non-colonial can be separated from a territory of a State. “They have an identity of its own and differentiated with a territorial structure majority; that re has been a massive violation of fundamental human rights and a systematic discrimination; that se violations cannot be resolved through political participation in institutions of State be excluded from people of m, and that it has not been possible to materialize an agreement between both parties”, being “ last remedy possible” secession.
In that article, professor Perea's appointment to master of internationalists Juan Antonio Carrillo Salcedo, who died in 2013, who argued that a secession that does not meet se four principles “may be given as a political fact, but not as a result of exercise of a right recognized by international Law”.
indeed, resolution 2625 of UN, 1970, points out in its articles, which should not be construed “in sense of authorizing or encouraging any action aimed to violate, or disparage, in whole or in part, territorial integrity of sovereign and independent States (...) endowed with a government representing whole people belonging to territory without distinction by reason of race, creed or color.” Ten years before, in 1960, resolution 1514 states in its point 6 that “any attempt aimed at partial or total disruption of national unity and territorial integrity of a country is incompatible with purposes and principles of Charter of United Nations”.
In ir study, Perea warned that a unilateral declaration of independence, that would be illegal in domestic Spanish, “it is not illegal in international law according to Court of The Hague” and pointed out that its effectiveness “will depend on mainly that Spain will cease to perform administration of Catalonia, creating thus, in fact, a new State”. However, this exercise unilaterally would constitute “an abuse of law, a violation of this right of self-determination” and thus, “in face of this breach of a basic standard of international Law, international community should not recognize such a State”.