RESPONSE TO THE COMPLAINT BY THE ELECTED REPRESENTATIVES OF SENT TO THE UNITED NATIONS, THE , THE EUROPEAN COMMISSION, THE COUNCIL OF EUROPE AND THE OSCE

MAY 2015

On 9 November 2014 in Catalonia (an Autonomous Community of Spain) a sham referendum was held in which the citizens of this Spanish region were asked:

Do you want Catalonia to be a State?

Voters who answered ‘Yes’ had to answer a second question:

Do you want that State to be independent?

The Spanish Constitutional Court had suspended the decree that authorised the holding of this consultation. However, premises opened on that 9 November for the purpose of voting. On some of the premises there was a document, entitled:

"Citizen Complaint to the United Nations, The European Parliament, The European Commission, The European Council, and the OSCE"

Enclosed is the content of the document and our response to the alleged complaint sent to the United Nations, the European Parliament, the European Commission, the Council of Europe and the OSCE

Sociedad Civil Catalana (SCC) is a private association comprised of people of varying ideologies and political sensitivities that was created to speak for a part of society and to make the point that there are many people who disagree both with secession and with the secessionist process that exists in Catalonia.

CITIZEN COMPLAINT TO THE UNITED NATIONS, THE EUROPEAN PARLIAMENT, THE EUROPEAN COMMISSION, THE COUNCIL OF EUROPE AND THE OSCE

The undersigned elected representatives, who represent a large majority of the Catalan people in the Catalan Parliament, the European Parliament, in the Spanish Parliament, and in Catalan municipal councils, address the United Nations, the European Parliament, the European Commission, the Council of Europe and the Organisation for Security and Cooperation in Europe (OSCE), make our complaint against the Spanish state for violating the right of the Catalan people to decide their political future by preventing them from exercising democracy by means of a referendum or internationally recognized consultation.

1. The people of Catalonia have, for reasons of democratic legitimacy, political and legal sovereignty, and as such, the right to decide their political future for themselves because: a) The Catalan people have, throughout history expressed and democratically exercised the desire that Catalonia govern itself, with the aim of improving the progress, welfare and equality of opportunities of all its citizens, and of strengthening its own culture and its collective identity. b) The self-government of Catalonia is also based on the historic rights of the Catalan people, on its ancient institutions and on the Catalan legal tradition. c) In recent years, on the pathway towards deepening democracy, a majority of the political and social forces in Catalonia have put forward measures for the transformation of the political and legal framework. The most recent of these took its shape in the process of reforming the Catalan Statute of Autonomy that was approved by the Catalan Parliament in September 2005, considered and approved by the Spanish Parliament, and backed by the citizens of Catalonia in June 2006. Four years later, the Constitutional Court amended it substantially, contrary to the will of the people. The Constitutional Court clearly showed its politicisation, acting as if it were a parliamentary chamber and thereby infringing one of the basic principles of democratic systems, the division of powers and its independence. d) Since then, Catalonia has been governed by a Statute of Autonomy that is not what was approved by its citizens. On 10 July 2010 in Barcelona there was a demonstration of more than a million citizens protesting against the judgment of the Constitutional Court.

Objection 1: The Catalan people do not represent a sovereign political and legal entity. Art. 2 of the Spanish Constitution attributes national sovereignty to all Spanish citizens as a whole, who, acting as the constitutive power, wrote and ratified this Basic Law, which was put to a referendum in 1978 and supported by a very large majority of Spaniards, and also of Catalans, who voted in favour of the Constitution by an even larger margin than in Spain as a whole. The Constitution grants the regions and nationalities the right to autonomy, which is enshrined in Part VIII through the establishment of a constitutionally guaranteed federal system of territorial distribution. That is to say, in Spain, as in Germany or the United States, the constituted powers (central state and autonomous communities) cannot have a block of legal instruments (constitution and statutes of autonomy) that set out the basic rules relating to the allocation of powers and institutionalisation of self- government. It follows that there are no historic rights under which Catalan self- government could be claimed, as is recognised by the Spanish Constitution in the framework of Additional Provision 1 for the territories of Navarre and the Basque Country, but not for Catalonia. Finally, the Catalans are Spanish citizens who live for administrative purposes in the Autonomous Community of Catalonia.

From the point of view of international law Catalonia is not a sovereign entity understood as an entity of international law. Nor does it have the capacity to act autonomously externally but it must respect the principles of unity of external action of the Spanish state, the institutional loyalty, the co-ordination and the co-operation that are enshrined in Spain’s legal system.

The Constitutional Court did not substantially amend the 2006 Catalan Statute of Autonomy; it struck down a small number of sections and reinterpreted others as a consequence of complying with the obligations that it holds under Art. 161.1 of the Spanish Constitution and the Organic Law with regard to appeals of unconstitutionality presented by parliamentary groups and the ombudsman. The fact that the Statute was ratified by means of a referendum does not represent any attack on the democratic principle, since this institution is established in the Spanish constitutional system as a control mechanism and not for taking decisions. Moreover, in the USA and Switzerland, countries where direct democracy is well established, it is common for courts to annul laws that originate in referendums if their content is contrary to the constitution. Therefore, the action of the Constitutional Court is also beyond reproach from the point of view of comparative law.

In a democracy demonstrations, however many people may take part in them, do not override the decisions taken by the institutions of the state, which enjoy the legitimacy of the ballot box in electoral processes that take place in accordance with the law.

2.- In recent years the Catalan people have repeatedly expressed their wish, either directly or through political representatives, to decide their political future: a) On 11 September 2012, the National Day of Catalonia, the streets in the centre of Barcelona saw the biggest demonstration in the history of Catalonia, led by the slogan "Catalonia, new European state". On the same date in the two following years the general public showed their capacity for mobilisation and organisation with the Vía Catalana, a human chain that ran across the country for more than 400 kilometres, forming a human "V" that filled the two main roads of the country’s capital. b) On 25 November 2012 elections were held for the Catalan Parliament, leading to an unequivocal mandate: to exercise the right to decide the political future of Catalonia. This will of the Catalan Parliament was stated in the “Declaration of Sovereignty and of the Right to Decide of the Catalan People”, which was approved in January 2013 with the support of more than two thirds of the members of the Parliament. This declaration was challenged by the Spanish government in the Constitutional Court, which partially annulled it.

Objection 2: The Catalan people express their will through the institutions. In democratic political systems demonstrations and freedom of expression are regarded as cornerstones of the right to public participation, provided that they are exercised in conditions of institutional neutrality and plurality in the media and are used as a means of connecting the representatives with the people that they represent. Notwithstanding that, the will of the general public is given practical meaning through the bodies that make up the Catalan democratic institutions, which have the necessary legitimacy to take decisions within the scope of the competencies that the Constitution and the Statute have granted them. Anything outside these competencies would consist of an arbitrary will.

It is not true that the elections of 25 November produced an unequivocal mandate with regard to the right of self-determination of Catalonia, among other reasons because not all the parties included this claim in their election manifestos. In fact, the party that stresses the question most strongly, the one that has led the Catalan government since 2010 (CiU), lost 12 of its 62 seats in the Catalan Parliament. The “Declaration of Sovereignty and of the Right to Decide of the Catalan People”, which was approved in the regional Parliament in January 2010 by a large majority, was appealed by the Spanish government to the Constitutional Court, which ruled that it was not a simple resolution with political effects but that it also had effects in the world of the law. Likewise, it decided that it was contrary to Art. 2 of the Spanish Constitution, which states that national sovereignty resides in the Spanish people (in

the entirety of the citizens of Spain). The court added that the right to self- determination of a territory is a possible and legitimate political option in the Spanish constitutional system, but that it is possible only by means of a constitutional amendment that allows recognition of the Catalan people as a distinct legal entity that is capable of separating from Spain. To achieve that would necessarily require respect for the democratic process; that is to say, respect for the procedures and majorities that are necessary to amend the Constitution, through basic principles of dialogue and institutional loyalty.

As for the “Declaration of Sovereignty and of the Right to Decide of the Catalan People”, approved in January 2013, this did not have “the support of two thirds of the Parliament”, although it did clearly achieve an absolute majority. In other words, it did not even obtain the necessary majority to amend the Catalan Statute of Autonomy, which contains and sets out the competencies that the region has.

3.- The Catalan Parliament and Government have taken all the necessary steps to comply with the democratic mandate resulting from the elections of 25 November 2012 and have at all times followed the principles of democratic legitimacy, dialogue, negotiation, legality and social cohesion, as is set out in the Declaration of Sovereignty: a) In December 2013, the political forces in favour of exercising the right to decide agreed on the date of 9 November to hold the referendum and on the question that would be presented to the electorate. b) In April 2014, a delegation of members of parliament appointed by the Catalan Parliament asked the Spanish Parliament to transfer the power to call a referendum on the political future of Catalonia. The Spanish Parliament refused to transfer this power. c) In September 2014, the Catalan Parliament approved by a large majority a law of non-referendum consultations. Under this legal framework the Catalan First Minister signed the decree calling the consultation for 9 November. The Spanish government appealed both the Law of Consultations and the decree calling the election to the Constitutional Court. The Court admitted the appeals and provisionally suspended the law and the decree. d) In view of the impossibility of voting on 9 November under the Law of Consultations a participative process was initiated so that the public could express their opinion. In this case too the Spanish government challenged this process and

the Constitutional Court admitted the appeal for consideration, once again following the dictate of the government.

Objection 3: It is important to state that for more than a decade the nationalist parties in some regions of Spain, such as the Basque Country and Catalonia, have been coining new legal and political concepts in order to recover the principle of nationalities, which, in the way in which it was proposed in the interwar period, would imply that each minority could have a state of its own to defend its culture and its language. This point of view has been discarded in the Europe that developed after the Second World War. It is important to bear in mind in this context that the Spanish Constitution, which is unquestionably federal in nature, as is recognised by the majority of international doctrine, already recognises the right of autonomy of the nationalities and regions, which supposes the establishment of a constitutionally guaranteed system of political and cultural decentralisation.

However, an intention to hold a referendum under the aegis of a law made by the Catalan Parliament implies that the citizens of Catalonia can decide on the sovereignty that corresponds to all Spanish citizens (including those who are located in Catalonia for administrative purposes). That is why in April 2014 the Spanish parliament rejected by a very large majority the possibility of the state ceding the right to exercise a competency that corresponds to all Spanish citizens in their entirety. In this regard there is scientific unanimity, even among jurists who defend the independence of Catalonia, that the secession of a Spanish territory can only be brought about by means of an appropriate constitutional amendment, a power that cannot lie with any single autonomous community. The fact that a consultation of this kind can be held in the United Kingdom or Canada is due fundamentally to the fact that in those countries the sovereignty resides in the Parliament itself, which can amend the Constitution at any time without the need for an amendment procedure, for which reason the exercise of constitutive sovereignty can be ceded to a region without questioning the constitutional system as a whole. In Spain, on the other hand, for a part of the territory to be able to become independent it would first be necessary to amend the Constitution, a power which, as we have reiterated, belongs to the Spanish citizenry as a whole represented in the bicameral Spanish Parliament.

In spite of all that, the regional government of Catalonia finally organised a referendum with no kind of electoral guarantee, even though the Spanish Constitutional Court had temporarily suspended the Law of Consultations and the executive decree under which it was being held. The referendum was held without institutional neutrality and using the public and private media to campaign in favour of the independence of the region. But in spite of that, the turnout on the electoral roll, which was artificially enlarged, was barely a third of the eligible voters. The result, while being highly favourable to secession according to the figures supplied

by the organisers, was not guaranteed by the electoral institutions legally established for that purpose. In February 2015 the Constitutional Court struck down part of the Catalan Parliament’s Law of Consultations of September 2014 and the executive decree that accompanied it as being flagrantly in breach of Arts. 92 and 149.1.32 of the Spanish Constitution. The Constitutional Court did not consider whether or not a consultation of this kind could be held in Catalonia or any other region of Spain, but it stated that the democratic process means that the institutions must take decisions with respect for the legal provisions that establish the competencies of the public authorities (Constitution and Statute), which the Catalan government did not do by supplanting the state in the regulation and authorisation of the holding of a referendum.

4.- The Spanish position contravenes the international practice of democratic states of multinational composition and international law, because: a) Firstly, it is contrary to the opinion of the Canadian Supreme Court, which indicates in its judgment of 20 Augusto 1998 that, while the Canadian Constitution did not provide for the right of self-determination, the democratic principle that inspires it justifies the holding of a referendum on this matter, in the clear understanding that the two interested parties undertake to negotiate peacefully the consequences of the result of the consultation, including secession. These are the same principles that led to the agreement between Great Britain and Scotland to hold the referendum in September 2014. b) Secondly, it is contrary to the fundamental points of the International Covenant on Civil and Political Rights. In this regard it must be borne in mind that the International Court of Justice concluded in its judgment of 22 July 2010 that the right to self- determination of peoples has evolved and that no norm or custom has appeared contrary to this evolution in the international order. This has permitted new practices of the right to self-determination in the 21st century under which certain peoples or political communities have democratically chosen their political future.

Objection 4: The position of the Spanish institutions does not contravene any usual international practice of democratic states with complex structures. Firstly, because there are presumably states consisting of several nationalities that do not recognise the right of self-determination of their parts: the USA, Switzerland, Belgium and Bolivia. The Scottish and Canadian exception derives from their particular constitutional tradition; they are states, as we have pointed out, in which sovereignty resides in the Parliament, which can dispose of it without the need for constitutional reform. However, there are countries such as the United States, which are very close to the Spanish federal form, in which secession is prohibited by the constitution

(Supreme Court ruling Texas v. White, 1869 and the fourteenth amendment to the United States Constitution). On the other hand, it is important to remember that the Canadian formula does not end with the 1996 Supreme Court ruling but is enshrined in the 2000 Clarity Act, which regulates possible secessionist referendums in Quebec. This act gives the Canadian House of Commons the power to verify whether the question is clear and the required majority is sufficient in order to permit the start of negotiations with the aim of recognising the right of self-determination of the francophone region. If either of these points is not met, the referendum can be annulled. Moreover, it requires the participation of all the Canadian territorial entities in these negotiations, as well as that of the federal government.

With regard to international law, the statements made in the above claim can be refuted completely. Two different levels should be considered: international and particularly European. In terms of the European law it is important to mention that as of 1975 with the Helsinki Act, which set up the OSCE collective security system, the European states began a new era of legal recognition of national minorities, trying to depoliticise its content in order not to repeat the tragic experience of the period between the wars. That is to say, the Helsinki Act started a process in which self- determination adopts a concept of institutionalised democracy, provided that the minorities have constitutional recognition from a cultural and political point of view.

Spain has always been in the forefront of those processes. In fact, unlike other European countries, its Constitution is a model that is quoted for enshrining special linguistic characteristics through the recognition of a legally guaranteed political autonomy that is completely comparable to the federal systems. The “OSCE model” reached its culmination in the Council of Europe with the European Charter for Regional or Minority Languages (1992) and the Framework Convention for the Protection of National Minorities (1995). The protection of minorities is proposed once again as a stabilising element for the continent, not the opposite. Spain has not only ratified these treaties but is seen as a model of institutional integration in these matters, so it does not seem appropriate to raise the question of multinational composition as a factor that legitimates processes of territorial fragmentation, which must be avoided after the Yugoslavian experience or the failed state that Ukraine has become.

As for international law, the peoples that have a right to free determination, i.e. to decide their political condition, which could comprise secession from the mother state, are peoples subjected to colonial domination and peoples subjugated by a foreign power (United Nations General Assembly Resolutions 1514 (XV) Declaration on the granting of independence to colonial countries and peoples (1960) and 2625 (XXV) Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United

Nations (1970). The international jurisprudence and doctrine recognise unambiguously that peoples of this kind have this right.

From this point of view and despite the fact that article 1 of the International Covenant on Civil and Political Rights (ICCPR) proclaims the free determination of peoples without specifying the kind of people that it refers to, this right is not absolute and is subject to limits. General Observation No. 12 of the ICCPR’s Human Rights Committee, the body responsible for interpreting the articles of the Covenant, provides that this right and its implementation are interrelated with other provisions of the Covenant and with the rules of international law. Thus it is clear in this regard that the principle of self-determination of Arts. 1 and 55 of the United Nations Charter is not applicable to Catalonia. Nor are Resolutions 1514 (XV) and 2625 quoted above which limit this right with respect to the territorial integrity of the states. Also, this case does not fall under what has come to be known as the right of humanitarian self-determination (right to secession as a remedy), which is emerging as a new concept in cases where the population of a territory is treated violently by the powers of the state that it forms part of. In any event, such a case cannot arise in any member state of the European Union. This is so because Art. 2 of the Treaty of the EU establishes respect for human dignity, freedom, democracy, the rule of law and human rights, including the rights of people who belong to minorities.

Finally, it must be mentioned that the International Court of Justice, the highest interpreter of international law, ruled indirectly on the principle of free determination in its Advisory Opinion on Kosovo in 2010. In this question it made it clear that the matter of entities that have the right of self-determination, other than for peoples subjected to colonial domination and peoples subjugated by a foreign power, was a controversial question that had raised radically differing opinions among the participants in the process presented before the Court. In other words, it means that any extension to other holders of the right of self-determination apart from the above-mentioned two cases is not consolidated law. Therefore, and bearing in mind the most recent opinion given by the Court, Catalonia would not have any right at all to free determination under the auspices of international law.

Barcelona, Mayo de 2015

FOR MORE INFORMATION: [email protected] Telf +34 93 445 17 93 Societat Civil Catalana, 2015