Professor of Constitutional Law (UB). Editorial Committee of EL PERIÓDICO
If we have come close to political realism in seeking solutions to the Catalan problem, we now need to add some legal realism to it
The Catalan government is calling for a referendum and the pro-independence movement insists on the right to self-determination. Both claims are legitimate and go back a long way. Now unilateralism seems to have been ruled out, and that is positive. However, as in 2017, we sometimes see arguments that are not very nuanced being presented as if they were truisms. And this can generate false hopes in some sectors, who come to believe that Catalonia’s right to self-determination has indisputable international legal protection, or that a referendum on self-determination is possible under the 1978 Constitution. I believe that both ideas are mistaken, and I would like to
To begin with, there is no right to unilateral secession. This seems so clear that the Consell Assessor per a la Transició Nacional, formed by experts from various disciplines at the initiative of Artur Mas’ government, said that this right “is only regulated by international law in cases of decolonisation”. It can be read on page 12 of Report number 4, 2013. The Law on the referendum on self-determination, approved by the Parliament in the ill-fated session of 6 September 2017, invoked in its preamble the international covenants signed by Spain in which the right of self-determination of peoples is recognised. It added that these international covenants were binding on it, in accordance with the provisions of article 96 of the Constitution. And she was not wrong. But it omitted to add any reference to Resolution 2625 of 1970 of the United Nations General Assembly, which gives a restrictive interpretation of the right to self-determination of peoples. It sets its limit by stating that this right cannot be understood as authorising the infringement or disregard of the territorial integrity of states “endowed with a government representing the whole people belonging to the territory without distinction as to race, creed or colour”. In short, the resolution affirms that the right to self-determination that allows for the fragmentation of a state only applies in cases where that state exercises colonial domination. Thus, it may be compatible that the Kingdom of Spain is, on the one hand, obliged to respect the right to self-determination because it has signed the international covenants that recognise it, and, on the other hand, it may have a Constitution that in its article 2 establishes the indissoluble unity of the Spanish nation.
Article 2 can be modified, as can the entire Constitution. But as long as it is in force, I believe it prevents a Scottish-style referendum on self-determination. Although international law does not endorse the right to self-determination outside situations of colonial rule, neither does it prohibit a state from deciding to organise one, as happened in the UK. But the British constitutional framework is like ours, in which a referendum on self-determination could not be legally binding because it would run afoul of the aforementioned article 2.
Sometimes, as an alternative to a referendum on self-determination, a substitute is proposed: a consultative referendum, as provided for in Article 92 of the Constitution. This precept allows them on “political decisions of special importance”, with the authorisation of Congress. In theory, the same questions could be asked as in a referendum on self-determination without the answer being binding. However, the Constitutional Court’s ruling STC 103/2008 seems to exclude this possibility, when it indicates that this can only be raised within the framework of the constitutional reform procedure. Although we disagree with this ruling, the difficulties of a consultative referendum are obvious. It is not possible to avoid the vote of Congress, not even ignoring Article 92. It would be necessary to modify the Organic Law on the modalities of referendums, and there the appeal of unconstitutionality can be taken for granted.
These considerations are not intended as dogmas. What they seek is to encourage critical reflection in the face of arguments which are presented as indisputable. If we have approached political realism in the search for solutions to the Catalan problem, it would now be necessary to add some legal realism to it.