Barcelona Bar Association defends Unilateral Declaration of Independence if Spain prohibts referendum

Originally published in Vilaweb, January 7, 2013. (I'll admit that the translation of the legal language is a little wobbly, but I believe the meaning is correct.)

The Committee for the Defence of People's rights of the Barcelona Bar Association (Il·lustre Col·legi d'Advocats de Barcelona, or ICAB) contends that self-determination is Catalonia's inalienable right. (Note that the Barcelona Bar Association was founded in 1833 and currently has 20,000 members.)

The Committee for the Defence of People's rights and the Free Legal Practice of the Barcelona Bar Association says that self-determination is one of Catalonia's inalienable rights since it is a fundamental and universal right of all peoples, according to international law. The committee confirms that the current framework of the Spanish Constitution does not allow Catalonia to exercise its right to self-determination but it stresses that in a democratic society the law is nothing more than the expression of the popular will. The Barcelona Bar therefore defends the convocation of a referendum as well as a unilateral declaration of independence, if the Spanish government prevents a referendum from being held.

The Defence Committee of the Barcelona Bar remarks that the right to self-determination is recognized internationally and as a result the number of sovereign states has quadrupled since 1900, and it underscores the fact that 20 of these states are the result of a secession of one part of a territory, as in the case of Norway, Finland, Ireland, Iceland, Lithuania, Estonia, Latvia, Slovenia and Montenegro.

The Barcelona Bar dismantles the Spanish argument that popular sovereignty resides in the totality of the citizens of the Spanish State with the reminder that the Charter of the United Nations attributes the right of self-determination to peoples, not states. Therefore, the Bar affirms, "the concept of the Catalan people as the political subject with the right to decide is unquestionable".

On the other hand, the Bar notes that the Spanish Constitution does not permit the exercise of the right to decide and therefore declares that that is in contradiction with "the democratically demonstrated will of the national community". Therefore, the Bar maintains that "this concept cannot accept the kidnapping of the people's will in name of a legality that is coactively imposed."

For all of that, the committee considers that "the Spanish government would have no recourse for opposing the decision of the Parliament of Catalonia to give voice to the citizenry so that they can, freely and as a majority, express their will, in favor or against, with respect to the creation of a sovereign Catalan state." If the option in favor of independence were to win, it adds, "the Spanish government would have no legitimate standing for opposing entering into a process of negotiation in order to establish conditions for the secession."

If the state prevented the celebration of a referendum on self-determination or it refused to accept the results of a referendum, the Barcelona Bar Association believes a Unilateral Declaration of Independence proclaimed by Parliament would be feasible. If that were to occur, they say, "the Declaration of Independence would go into effect immediately in order to make the new state exist," because it would "follow the minimum criteria of a constant population, specific territory, and its own political authority," the characteristics that define a state.