Referendum law based on international treaties justifies unilateral action

The law regarding the referendum to be presented on Tuesday by the Catalan government refers to resolutions by the UN and the International Court of Justice in The Hague in order to justify a unilateral declaration of independence, several newspapers published on Monday. The final draft foresees that this law will stand above any other with which it might otherwise conflict.

The law is being presented as the democratic answer to the frustration provoked by the sentence regarding the Catalan Statute of Autonomy (regional legal framework) in 2010 by Spain's Constitutional Court.

International legal framework

The preamble of the referendum law refers to the judgments by the International Court of Justice during the second half of the 20th century in cases of new states that have exercised the right to self-determination in situations not having to do with the end of imperialism. According to the text of the law, the International Court asserts that "the right to decide of the people has evolved and that no new rule or habit has appeared in the international order that forbids these new practices".

The Catalan law regarding the referendum points out that the charter on civil and political rights approved by the General Assembly of the United Nations on December 19, 1966, recognizes the right of the people to self-determination as one of the most basic of human rights. Article 96 of the Spanish Constitution states that the international treaties ratified by Spain, such as the civil and political rights described in the UN charter, are part of its internal jurisprudence, and in article 10.2, establishes that the rules related to fundamental rights and freedoms will be interpreted in accordance with the applicable international treaties in this matter.

Therefore, the Catalan referendum law argues that the resolutions of the United Nations, such as the right to the self-determination, are part of Spain's own legal system.

The vice president of the Catalan government, Oriol Junqueras, highlighted in an interview on Monday morning that Spain is obliged to interpret its legal regulations according to the principles marked by the international laws, including that of self-determination. The vice president made it clear that it was important to explain this situation to the Catalan society as well as abroad.

A democratic response and an act of sovereignty

The first three articles of the law regulate the celebration of the binding self-determination referendum on Catalan independence. They note that the Catalan Parliament acts as a representative of the sovereignty of Catalonia and recognizes the people of Catalonia as a political and sovereign subject, with the right to freely and democratically decide their political future with the most radically democratic tool possible: the vote.

The text also refers to several resolutions approved by the Catalan chamber in recent years and that had been adopted on October 6, 2016 which affirm the imprescriptible and inalienable right of Catalonia to self-determination with the approval of this law being the maximum expression of the democratic mandate derived from the elections of September 27, 2015.

The text assures that the law represents the "democratic response" to the generated "frustration" and points out that "all efforts" have been made in order to come to an agreement on a way for the people of Catalonia to decide their future freely. "The Parliament, following the mandate of the majority of the people of Catalonia, assumes the full sovereign representation of the citizens once all paths to dialogue and negotiation with Spain have been exhausted," concludes the preamble.

According to the referendum law, approving these regulations is an "act of sovereignty" and "is necessary in order to be able to exercise the Catalans’ right to decide Catalonia’s political future, especially after the breakdown of the Spanish constitutional pact of 1978, which occurred after the partial annulment and defenestration of the Statute (the autonomy law that regulates Catalonia's powers in relation to Spain)".

A legally "exceptional" law that protects civil servants

Sources from the Government say that the law foresees a referendum that will function the same way as any of the elections or referendums have functioned over the last 30 years, with two exceptions: It will have its own electoral union which will substitute the Electoral Board and it will have an International Guarantees Committee, formed by prestigious international jurists and expert political scientists. The objective is to ensure that the process is carried out democratically both before and during the day of the referendum.

Article 3 of the referendum law also states that the law will establish an "exceptional judicial regime" in order to regulate and guarantee the referendum. For this reason, it "prevails hierarchically above all those rules that could come in conflict with it, because it regulates the exercise of a fundamental and inalienable right of the people of Catalonia".

The same article exposes that "all those authorities, persons and companies that take part in the preparation, celebration and/or implementation of the result of the referendum, either directly, or indirectly, remain protected by this law since the law guarantees the exercise of the right to self-determination which is part of the valid judicial system".

Referendum preparations receive broad support from municipalities

Meanwhile the preparations for the referendum gathered municipal support despite the prohibition by the Constitutional Court The mayor of Barcelona, Ada Colau, assured on Monday in an interview that Barcelona's city government will be pleased to facilitate participation in the referendum but also clarified that if there is insecurity or uncertainty she will not ask civil servants to put themselves in jeopardy. Vice President Junqueras responded to the mayor quickly saying that city government civil servants never take part in the electoral processes and, therefore, won't do so in the October 1st referendum either. Colau also said that she was waiting for the Catalan Government to clarify if the referendum will have electoral rolls, ballot boxes and equipment, and highlighted that in her opinion the most important objective is that the majority of the Catalan citizens be able to participate in a regulated way and freely vote for the option they want. The mayor called on both the Catalan and the Spanish governments to avoid an institutional showdown. However, Colau also made it clear that the referendum was unavoidable because the breakdown of the Catalan autonomic model was irreversible.

More than 500 mayors demonstrated their joint support on Saturday in an institutional act together with representatives of the Catalan government and civil organizations in favor of the referendum on independence. The president of the Catalan Government, Carles Puigdemont, said during the event at the University of Barcelona that Spain is threatening mayors precisely because “it is afraid of them”. In the president’s opinion, the mayors of the Catalan town governments are the guarantors of the referendum.

In turn, the head of the opposition in the Catalan Parliament, Ines Arrimadas, the spokesperson for the Ciutadans party, pointed out on Saturday that the mayors who had come together in favor of the October 1st referendum "represent towns with 43% of the population" and said she was convinced that the referendum will not take place.