Helena Torroja – 5-11-2019
Helena Torroja is a professor of public international law at the University of Barcelona
This is an analysis of the situation aimed at my friends and colleagues who support the process.
These days there are many voices that claim to find the future solution to the Catalan crisis. Now, without knowing where we are, there will be no possible right decision. A basic principle of the good navigator is to look at the compass before defining the heading. This should be the beginning of every good politician and every good citizen when choosing his vote.
As a conceptual compass that helps to name the times we live and at the same time indicate the path we are going to, the discipline of public international law is very helpful. There can be no doubt that we are in a secessionist revolutionary process and, as such, not peaceful against (liberal) democracy. Let’s see why.
1.- It is a revolutionary process because it is based on disobedience to the Spanish Constitution of 1978 (EC) and is aimed at its modification by de facto means and not by its legal channels of change.
This process was varnished as legal and peaceful by the invention of the “right to decide”, euphemism for the right of self-determination, which the Catalan people would have under international law. I have no interest in lying. There is no international norm that gives Catalans a right to self-determination of their destiny apart from the rest of Spanish citizens, a right to independence. This right, that of self-determination, was created by the States in the 60s for the colonial peoples. If it had been attributed to minorities, today we would have more than a thousand African states. If the Catalans were their owners, the General Assembly of the United Nations (UN) or the European Commission would have already come out in our defense. It has not been like that. The facts speak.
Therefore, without an international standard that covers disobedience to the EC, the adoption of the laws of September 6 and 7, 2017, was another step in the revolutionary process. And 1-O, 27-O, other steps that followed. Given these facts, the Supreme Court (TS), in exercise of its obligation not only constitutional, but also international (as European law obliges member states to ensure respect for the rule of law, as well as international law requires effective exercise of state functions), proceeded to examine the special case initiated by the Prosecutor. It is the characteristic of a liberal democracy.
The ruling of the TS of 14-O has considered the EC values as legal goods under criminal guardianship. Therefore, the rejection of the Judgment by the state powers in Catalonia, today chaired by Mr. Torra, is another step in the revolutionary process. As are the so-called marches for the freedom of Catalan citizens (whether they know it or not), the violence of the CDR and Arran, the manifests against the Sentence of various public or private institutions, the actions of the hooded in the faculties , even preventing other students from going to class, the current camping on Gran Vía in front of Plaza Universidad, or the recent statements of Mr. Oriol Junqueras notifying the State that “we are halfway through”.
Why? Because its nature and purpose is to continue opposing the Constitution and force its change through de facto means. It is now about “forcing the negotiation” between the autonomous – and revolutionary – Government of Catalonia and the Government of the Spanish democratic State, from equal to equal. This fact has a legal name: coercion, force, material or immaterial, to modify the will of the other party. Wanting to change the Constitution in this way, on the street and through coercion, outside the Spanish Parliament and against the rules, remains an expression of a revolution.
2.- It is a revolution also secessionist, because the end is the independence of a territory of a State against the will of the sovereign powers and, most seriously, against the will of the entire population of that State, which is the owner of the collective human right to internal self-determination according to the true meaning of international norms (common article 1.1 of the Human Rights Pacts of 1966, which includes a customary international norm).
Secession must not be confused with the notion of separation of territories by transfer of sovereignty (devolution). This concept means the transfer of sovereignty freely agreed by the parent State to a fraction of its population. It is not imposed by the international norm, but rather freely chosen by a State in its constitutional order. It is a hoax to the population to give the Catalans examples of possible or effective transfers of sovereignty (Quebec, Scotland …) The constitutional order of Spain does not allow it without a previous modification of its Fundamental Law according to a regulated procedure that revolves around the fundamental axes: the General Courts and the referendum of the Spanish citizens.
3.- It is a non-peaceful process, although its designers have been commissioned to qualify it otherwise.
The concept of peace in the 21st century, according to the UN and the European Union (EU), is not that of a period between two wars, as in the 19th century. The notion of peace today includes all those measures aimed at maintaining and building it. This idea of a culture of peace is sealed in the main international and European organizations after World War II.
To violate the fundamental norm of a society whose function is to guarantee peace and order is to attempt against that peace and that order. It is frivolous to underestimate the consequences of the breach of the EC, whose essential values are to configure a Social and Democratic State of Law.
We are facing the first revolution in Europe against liberal democracy! This is not peaceful nor is it pacifism.
At this point, more conceptual compass is necessary, since the population has also been deceived with the use of a concept of democracy that cannot be other than the populist or communist, since it is certainly not the democracy we are talking about in Europe and which has given us all such a long historical period of peace: liberal democracy, a requirement to be a member of the EU.
Liberal democracy is a broad concept that includes the inseparable principles of respect for the rule of law, fundamental freedoms and rights without discrimination, the division of powers and universal suffrage for the free election of political representatives (representative democracy in the strict sense). After World War II, the reconciled European states agreed on this notion in the conviction that the peace of Western Europe would be built through liberal democracies; the experience of the atrocious war left no room for doubt. In democracy these fundamental principles are respected as a guarantee of peace. The revolution against liberal democracy is a direct cause of destruction of the peace on which it is the foundation.
So this is where we are in international legal terms. Of course, those who brought us here, very little or nothing have loved Catalonia and the Catalans.
The immediate problem is to face the peace or non-peace dilemma, before we think together about the solution.
Either the peaceful channel of the dialogue in the constitutional framework is retaken, even to reform it, or the attempts at revolutionary, non-peaceful secession continue.
If you want to continue navigating this random course, in which we are already going, it is very likely that we will end up in a social implosion. Peace is inextricably linked to the values that liberal democracy holds.
You know where we are. Choose now where you want to go.