THE ERRONEOUS ADVICE OF AN INTERNATIONAL
EXPERT
José A. de Yturriaga Ph-D.
Ambassador of Spain
I have a great respect for Bristish Foreign Service, which I consider to
be one of the best in the world. The
United Kingdon has brilliant diplomats and other not do brilliant as is the
case of Carne Ross, who was responsible for the Middle East in the British
Mission before the United Nations in New York. He left the Foreign Office in
2004 and founded the Consultancy “Independent
Diplomat” in order to advise States and entities that wanted to become States on matters of self-determination and statehood.
Ross has summed-up his experience
as an Adviser inan article in the online newspaper “The Independent”, in which he has shown a great direspect for the
rule of law and little knowledge of
International Law. His organization has given advice to movements which have
become States –like Kosovo and South Sudan-, regional Government -like Catalonia- and national liberation movements –like the Frente Polisario of
Western Sahara-. He has boasted his success in contributing to achieve the
Independence of Kosovo and of South-Sudan, a deed which does deserve much
praise, since both States are “failed
States”.
Ross considers that there is no
rulebook for independence and that lessons
about self-determination resulting in independence are drawn not from legal
analysis, but from gritty experience. Many States, from Niger to Spain –thanks
for the comparison- worry about breaking-up
and he has been Adviser to the Governments and the parties of some of those who
have failed to win independence, like Palestine and Catalonia –thanks again for
the parallelism-. For him, self-determination has very little to do with the
law. “You only become independent by
pushing for it yourself. No one will give it to you, although ultimately it is
other States who must recognize you as State”, but this choice is always a
political one. Legal arguments can bolster polítical arguments, but they are
never primary. The legal case of Kosovo was weak, but its political case was
strong. According to Ross, you can fill a library with UN resolutións demanding
a Palestinian State or the holding of a referéndum of self-determination in
Western Sahara and, yet, Palestine is not a State and no referéndum has been held
in the former Spanish Sahara.
The decisión of a State not to recognize another State is political, but
cannot be arbitrary or outside the law.
In addition to the three classical elements in the formation of State
established in the 1933 Montevideo Convention –territory, population and
government- there is a fourth necessary element, which is the legality in the
process of its creation. As Ana Gemma
López has pointed out, if such a creation is the result of a violation of
International Law, then the “de facto” entity
would not reach the status of a
State. It has to comply with the requirements of artticle 2 of the UN Charter
and the principles enshrined in the General Assembly´s resolution 2665(XXV);
that is, territorial integrity of the originary State, prohibition of the use
or threat of forcé, self-determination of
people and respect of fundamental human rights.
Ross confuses the separate
notions of self-determination and of secession. Only people under colonial rule
or suffering a permanent violation of their basic human rights enjoy the right
of self-determination. The people of Catalonia, Scotland or Kosovo are not
entitled to self-determination for obvious reasons. The may seccess from their
mother country only if there is a political agreement between the parties. As
the Congress of the Spanish-Portuguese-American Institute of International Law
stated in 2016, Internationalo Law only
recognizes the right of self-determination and independence to people under
colonial rule or under foreign
subjugation, domination or exploitation. It does not recognize the right to
secession. The people forming part of a State have only right to internal
self-determination and the territorial integrity of the State where they find
themselves is to be respected. Any unilateral declaration of independence
violating the fundamental principles of International Law has no legal effect,
since “ex injuria nec oritur ius”
–right cannot derive from injustice-. States and International Organizations
should not recognize unilateral declarations of independence contrary to
International Law.
Ross pays undue credit to
violence and the use of force. According to him, the threat of war was decisive
in the successful self-determination of Kosovo and South-Sudan. It was violence
that triggered their independence. The
commitments of the International Community, such as those like International
Law, do not count for much. Both States had to come into being otherwise there would be war. In Kosovo, the
Security Council refused to do anything about the country´s final status for
several years. In 2004 there were deadly riots and the province seethed with
violence. He told the US and the European Union officers:”Make this place independent or you will get more of this and worse”. It
was the use of violence what allowed to reach the final status process, that ended
with Kosovo´s declaration of independence in 2008. Concerning South-Sudan, he
has quoted the answer of a Sudanese leader to the question of a Saharawi
politician about why the Sudan´s referéndum had been held, whereas the
referéndum in Western Sahara has not taken place yet: ”Because we told everyone, very clearly, that if we did not get it, we would go to war the next
day”. For Ross, the lesson can hardly be clearer. He seems to ignore,
however, that war is illegal, since it has been banned by the UN Charter.
Ross has adequately pointed out
that, in all the recent cases of contested self-datermination, the US has been
crucial. Kosovo and South-Sudan became independent because the American decided
so and brought with them a good part of the International Community. Concerning
Kosovo, they were not completely succesful due to the opposition of Russia and
China –who ,being permanent members of the Security Council, vetoed the entry
of the new country in the UN-, several non aligned States and five members of
the EU, including Spain. In this case, the political arguments prevailed over
the legal ones, because Kosovo´s unilateral declaration of independence was
contrary to the decisions of the Security Council and to International Law.
Russia has also tried to play the
role of State-maker in the cases of Abkhatia and Suout Ossetia, regions which
seceded from Georgia after the occupation of their territories by the Russian
Army. They declared themselved independent under the sponsorhip of Russia and
have been recognized only by five States. Russia may be tempted to do the same
in other contested áreas close to its borders, such as Trandsniester
(Moldavia), Nagorno-Karabaj (Azebaijan) or the regions in Ukrainian which have
revolted against the central Government with the support of Russian forces. despite
its poor success so far. According to Ross, in this realm. The multipolar world
has yet to manifest itself. Another blatant case of unrecognized statehood is
that of the Turkish Republic of North Cyprus, which has been recognized as a
State only by Turkey.
The United States is equally
decisive to prevent the completion of self determination in countries, such as
Palestine or Western Sahara. In the case of Palestine, there is also a break
between legality and “real politik”.
There are several UN resolutions condemning the occupation by Israel of part of
the West Bank and Jerusalem and demanding the creation of a Palestinian State,
but they have not been put into practice due to the opposition of the US
Government, which has backed unconditionally the illegal position of Israel.
Concerning Western Sahara, Ross
has stated that the Front Polisario has pursued nearly 30 years of peaceful, yet fruitless, diplomacy in
demanding the fulfilment of the UN decision of a referéndum of
self-determination. It has refused to return to a liberation struggle by
military forcé, despite the provocation of the annexation by Morocco of most of
its territory. It has shown endless patience and commitment to a peaceful
solution, to the result of no referéndum and little prospect of one. As long as
the US and France support Morocco´s positión, there will be no referéndum. The
recommendation of the bellicose Adviser would be probably for the Polisario to
ressume the guerilla warfare against Morocco.
Ross has also been an Adviser to
the Catalonian Government between June 2013 and September 2015. In spite of
that, he has not learned much about the reality of Catalonia and about the
legal and political issues involved in the procees of the región toward independence. He has
remarked that the British Government´s decisión to allow a referéndum on Scottish
Independence was excepcional and wise, in contrast with the Spanish punitive
response to Catalonian nationalism, since several of those who organized a
peaceful vote in Catalonia are in jail. He does not know much about European
History either. Although there are some similarities between Scotland and
Catalonia, the differences between the two countries are considerable, as John
Elliott has shown im his book “Scots and
Catalans. Union and Disunion”, and the situation of the two referenda can
hardly be compared. Scotland was an independent kingdom before it freely joined
the United Kingdon, British laws do not forbid the holding of referenda on
self-determination, and the British Government agreed with the Scottish
Government to hold a referéndum in Scotland. On the contrary, Catalonia never
was an independent kingdom, but an earldom successively under the rule of France,
Aragon and Spain, the Spanish Constitution does not allow to hold referenda
unless they are authorized by the central Government, which has neve given any
authorization, while the Constitutional Court considered it illegal. I wonder which
what Ross´s opinión would be if the Scottish Government decided to hold a
referéndum of self-determinatión in order to make Scotland independent, against
the will of the British Government and with the decisión of the Supreme Court
declaring illegal the said referéndum.
Ross
has stated that the Catalans had no other option for reaching a dialogue
with the Spanish
Government than holding a referéndum of self-determination on the 1st Octobre 2017. In the event, “hundreds”
of peaceful people were injured by baton-wielding policemen as they intervened
to close polling stations. There are quite a few inaccuracies in this
statatement. To start with, there were other alternatives. Unlike other European
States, the Spanish Constitution does not forbid independentist parties, and
there some of them represented both in the Spanish and in the Catalonian Parliament,
where they have a slight majority. A coalition of separatist political parties
leads the Catalonian Government and control the political, economic and social
life in Catalonia. They have the possibility to modify the Constitution in
order to include in it a clause allowing them to hold a referendum of
self-determination and eventually declare the independence of the región, but
they have not even tried, and their demands of dialogue limited themselves to “referéndum or referéndum”.
The
Constitutional Court declared the referéndum illegal and several Catalonian
judges ordered the judicial police to prevent its holding by closing the
polling-stations and seizing the polling-boxes. Many participants tried to
prevent the pólicemen to comply with these judicial orders and opposed the them
by peaceful and non-peaceful means. There were some clashes, which were considerably
magnified by the well greased nationalist “agitprop”.
Of those “hundreds” of persons supposedly injured, only two required
hospitalization.
The
Catalonian Government, unilaterally and illegaly, declared the independence of
Catalonia and the competent Spanish courts –the “Audiencia Nacional” and the
Supreme Court opened a ciminal investigation and ordered the provisional imprisonment
of the persons responsible for the organization of the illegal referendum and
for the declaration of independence. The President of the “Generalitat” and some of his Counsellors eluded the Justice and
flew to Belgium. Several persons accused of the crimes of rebellion, sedition,
embezzelment and disobedience have just been judged by the Spanish Supreme
Court and are in provisional imprisonment pending the rendering of their
sentences.
Ross has,
at least, 7 recognized that. in order that a región may separate itself from
the country o0f origin and declare independence, it is necessary for it to count
with a clear majority and -as things currently stand- Catalonia does not have
such a clear majority. Even more, a majority of Catalans are against
independence and want to continue to be both Catalans and Spaniards, as well as
Europeans.
Madrid, June 28th 2019
