The erroneous advice of an international expert

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