Daniel Turp-en CONCLUSION. THE EMERGENCE OF A DEMOCRATIC RIGHT OF SELF-DETERMATION1
(i) Aldaketa garrantzitsu bat autodeterminazio eskubideari buruz
1. A SIGNIFICANT SHIFT TO THE RIGHT OF SELF-DETERMINATION
The right of peoples to self-determination has been acknowledged and enacted in international instruments as important as the Charter of the United Nations2, the International Covenants on Human Rights3 and the United Nations Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations4, to which we can also add – and this is of particular interest to the peoples of Europe – the Helsinki Final Act and other texts issued by the Conference of the Organization for Security and Cooperation in Europe. Yet, during the second part of the 20th century, there were attempts to contain this right within the colonial sphere and to refuse non-colonial peoples its benefits. Whether it be the peoples of Eritrea or Eastern Timor, or the republics of the former Soviet Union or Yugoslavia, there were repeated attemps to deny the right to self-determination and the achievement of independence in accordance with such right.
Yet, towards the end of the 20th century, the international community witnessed the accession to independence of all these peoples and republics. It also saw the United Kingdom recognize the right of the inhabitants of Northern Ireland to determine their own future and to decide, if such was the will of the majority, that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland5. The year 2000 saw Canada’s acknowledgement of the right of Quebec to “cease to be part of Canada” in a Clarity Act6 adopted in response to the Reference re Secession of Quebec7 in which the Supreme Court of Canada had affirmed the “the right of the government of Quebec to pursue secession”8. Adopted in 2007, the United Nations Declaration on the Rights of Indigenous Peoples9 affirmed the right of such peoples to self-determination. With the support of several member states in the international community, Kosovo unilaterally declared its independence in 2008, and in an advisory opinion of July 22nd, 2010, the International Court of Justice maintained that this declaration was not illegal10. The early 21st century also saw South Sudan take its place in the community of nations, and the United Kingdom explicitly recognising the right of the Scots to organise a referendum and to become an independent state if such was the wish of the people. Several contributions to the present collective work show that recognition of the democratic right to decide one’s political and constitutional future is gaining ground: in Belgium when we think of Flanders and Wallonia; in Denmark when we consider the peoples of Greenland and the Faroe Islands; and in the United Kingdom when we take the example of Northern Ireland.
But we cannot silently ignore the difficulty the Palestinian people have in fully achieving their right of self-determination11, not to mention the peoples of Western Sahara or Kurdistan, whose struggles for freedom face obstacles that have so far proved insurmountable. And what can we say of the obstinate refusal of the Spanish state to recognise the right of the Basques, Catalans and Galicians to consult their populations freely about their political and constitutional future, or about the iniquitous sentences of the Spanish Constitutional Court in these matters? As for the attitude of the French and Italian states to the nations and people that constitute them, to take the examples of the treatment of claims of self-determination by Corsica and South Tyrol, it is far from exemplary when it comes to guaranteeing the collective rights that arise from their right to self-determination.
Despite the continuing obstacles to the full achievement of the right to self-determination, it is nonetheless the case that a democratic right to self-determination is emerging in this century, whose major attribute is “the right of peoples to choose”, with the essential corollary of “the obligation for States to negotiate”12.
(ii) Negoziatzeko betebeharra
2. THE RIGHT TO CHOOSE AND THE OBLIGATION TO NEGOTIATE
In accordance with the right to self-determination guaranteed in Article 1, common to both International Covenants on human rights, peoples may “freely determine their political status and freely pursue their economic, social and cultural development.”
But it is also important to stress that the affirmation of the right to self-determination of peoples is accompanied in the same International Covenants on human rights by the imposition of an obligation on States. Therefore, “the States Parties to the present Covenant shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.” This requirement has not been more closely defined either in the Declaration on Friendly Relations or by other international instruments. It gives states a duty to negotiate with peoples who have chosen to exercise their right of self-determination and to enter into discussions about the political status that the peoples desire. (…)
(…) could not Flanders invoke the principle of federalism as a basis for its right to choose? And is there no place for the Basque, Catalan and Galician peoples to base their right to decide on an analogous principle of democracy? Indeed, all the peoples of Europe who are seeking self-determination, could remind the governments of their States that their right to choose rests on a democratic principle, and that the exercise of such a right has as its corollary their obligation to negotiate.
The democratic principle is entrenched in many constitutions and should be seen as the source of the right to self-determination and has provided the basis for some peoples who organised self-determination referendums.
(iii) Autodeterminazio eskubide demokratikoaren sormena (eta Brexit)
3. THE EMERGENCE OF A DEMOCRATIC RIGHT OF SELF-DETERMINATION
To determine their political status, peoples have chosen to involve their populations in a democratic process culminating in a referendum relating to such status, and notably that of a sovereign and independent State. Quebec has twice chosen to take this route. Scotland followed a similar path, which led to the organisation of the referendum of 18 September 2014. Catalonia also attempted to choose such a route. While this approach has been the preferred option in recent exercices of the right to self-determination, a new approach of a democratic nature is also emerging as an alternative.
To implement its right of self-determination, and achieve national independence or greater autonomy, a people can rely on its constituent power and initiate a process aiming to give the people their own fundamental law. This is the avenue that the Catalan government and parliament appear to have chosen, adopting a roadmap that focuses around a constituent process and the drafting of a Constitution for an independent Catalonia13. (…)
… the results of the referendum held in United Kingdom on its future relationship with the European Union show that a majority of voters (51,9%) favored the “Brexit” option and expressed their will to leave the EU. This act of British self-determination clashed with the wishes of the peoples of Scotland (62%) as well as of Northern Ireland (56%) who voted in favor of the option of remaining in the EU.
After Brexit, and because of their own acts of self-determination, the First Minister of Scotland Nicola Sturgeon has suggested that a second referendum on independence is highly likely and Northern Ireland’s First Minister Martin McGuinness called for a referendum on a united Ireland14. This suggests that the democratic right of self-determination of peoples, which has emerged is well and alive. And to use Ernest Renan’s brilliant metaphor, that it is a “plébiscite de tous les jours”.
1 In DANIEL TURP eta MARC SANJAUME-CALVET-en THE EMERGENCE OF A DEMOCRATIC RIGHT TO SELF-DETERMINATION IN EUROPE (DIRECTORS / COORDINATORS. CENTRE MAURITS COPPIETERS. 2016).
2 C.N.U.C.I.O, vol. 15, p. 365.
3 See International Covenant on Economic, Social and Cultural Rights, (1976) 993 UNTS 3 and the International Covenant on Civil and Political Rights, (1976) 999 UNTS 171 [hereinafter International Covenants].
4 GA Res. 2625 (XXV), UN GAOR, 25th Sess., UN Doc. A/8082 (1970) [hereinafter Declaration on Friendly Relations].
5 See The Northern Ireland Peace Agreement, 10 April 1998, art. 2 (Constitutionnal issues) and the comments of this Agreement by Alex Schwartz, supra p. 127.
6 Statutes of Canada (S.C.), 2000, c. 26.
7  2 Supreme Court Reports [S.C.R.] 217 [hereinafter Québec Secession Reference].
8 Id., par. 88.
9 A/RES/61/295, UN GAOR, 61st sess., U.N. Doc. A/61/49 (2007).
10 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, I.C.J. Reports 2010, p. 403.
11 See Robert P. Barnidge, Jr., Self-Determination, Statehood, and the Law of Negotiation : The Case of Palestine, Oxford, Hart Publishing, 2016.
12 For a detailed analysis of the right to choose in a Québec context, see Daniel Turp, Le droit de choisir : essais sur le droit du Québec à disposer de lui-même/The Right to Choose : Essays on Québec’s Right of Self-Determination, Montréal, Éditions Thémis, 2001, p. 814-821.
13 On the constituent process, the Roadmap to Catalan Independence contains the following statement: “Setting up a project of writing a constitutional text in a term of approximately 10 months, by way of a participatory mechanism that facilitates gathering more voices around the project through an open constituent process in which there is direct citizen participation (a Catalan Constitutional Convention), and which is later subjected to a referendum”. The full text of the roadmap is available at http://www.newscatalonia.com/2015/03/road-map-to-catalan-independence-signed.html. On this aspect of the roadmap, Catalan President, Carles Puigdemont, commented on Catalonia’s process for becoming a new state in these terms: “[O]ur citizens, will […] need to decide at the ballot box whether they want to choose a new constituent parliament and move towards a definitive proclamation of independence”, and the Catalan government, “will not take this definitive step without democratic validation”: see Catalan News Agency, “Puigdemont explains Catalonia’s roadmap towards independence to the international audience at Chatham House“, May 11, 2016
14 See Aljazeera, ‘’Brexit: Scotland and Northern Ireland reconsider ties to UK – Nationalist leaders in both Scotland and Northern Ireland ponder independence refe rendums foolowing Brxit ‘’, June 24, 2016.