Alfred De Zayas: “to claim that a referendum is ‘illegal’ is absolute nonsense.” 

Transcript of the video interview with professor Alfred de Zayas held on November 9th, 2017 by Huib J. Lirb, Sofia J. Lirb and Maria Feliciana Coll

For this video and the related videos, please follow the links at my webpage “Six:Catalunya”. For a Dutch translation, see the parallel post on this weblog.

Alfred De Zayas during the interview in front of the Spanish Embassy at the Lange Voorhout in The Hague ©2018 Huib J. Lirb

Introduction to the interview

The Catalan Question and International Law. Conference on the Right of Self-Determination, The Hague, The Netherlands, 9 November 2018. An international symposium organised by ANC Nederland. Afred De Zayas. Professor of international law, writer, historian and a leading expert in the field of human rights and international law. Formerly UN Special Rapporteur on the Promotion of a Democratic and Equitable International Order.

Transcript

My name is Alfred De Zayas. I am the former United Nations independent expert on the Promotion of a Democratic and Equitable International Order. I served six years, from 2012 to 2018. I presented fourteen reports to the General Assembly and to the Human Rights Council. And one of those reports, the 2014 report, is devoted entirely to the theory and practice of the right of self-determination. Before that, I have been professor at numerous universities, in Canada, in the United States, in Germany, in Spain. And I was the secretary of the United Nations Human Rights Committee. And the chief of the petitions department in the office of the UN High Commisioner for Human Rights. 

– The Spanish State (judiciary and executive) rejects the validity of the 1 October 2017 referendum on the independence of Catalonia, claiming that is was “illegal”. What is your opinion on this?

[01:23] De Zayas:
Well, governments, politicians, journalists can say whatever they want. A professor of international law will tell you that the right to decide, the right to express your desire for self-determination, whether it be internal or external self-determination, is a fundamental human right. Now, you have article 1 of the Covenant on Civil and Political Rights, article 1 of the Covenant on Economic, Social and Civil Rights, not without reason. The drafters of the two covenants placed self-determination as the principle first right. As you know, human rights are universal, interrelated, and interdependent. So, if you violate the right of self-determination, almost inevitably you are going to be violating a host of other human rights. Certainly, if a population wants to hold a referendum: thát expression of their wishes is protected by article 19 of the Covenant on Civil and Political Rights. It is also protected by the European Convention on Human Rights. That doesn’t mean that, by virtue of that referendum, you are going to obtain greater autonomy, or you are going to obtain secession, independence. One thing is holding the referendum. Another thing is: what are the consequences thereof. That must be according to the rule of law. That must go through a certain process. And the process must conform with international law, must conform with human rights law, must conform with the Covenant on Civil and Political Rights, etcetera. But to claim that a referendum is “illegal” is absolute nonsense. 

– Nevertheless, the Spanish judiciary and government maintain that the referendum was illegal and a host of people are being prosecuted for their involvement. 

[03:45] De Zayas:
Well, the fact that there are political prisoners in Spain is really scandalous. And the fact that the European Commission in Brussels and the European Parliament has not clearly condemned this is  also a scandal. They have actually become complicit in a very grave violation of international law, and of human rights law and in particular article 9 of the Covenant on Civil and Political Rights. These persons who are currently in jail in Spain: their only offence is the excercise of a ius cogens right, to wit, the excercise of the right of freedom of expression in order to achieve a referendum and to achieve what every people is entitled to. Article 1 of the Covenant on Civil and Political Rights says: all peoples…. It doesn’t say “some peoples”, it doesn’t say “peoples who have been under colonial rule” have a right to self-determination. All peoples have that right. And my colleague at the University of Geneva, professor Nicholas Levrat, who is the head of the international law department at the university of Geneva, he published a book last year called “The Right to Decide”, which, better than anybody else, has explained the parameters of the right of self-determination, in particular in the case of Catalonia. 

– “All peoples have the right to self-determination”. But what constitutes “a people”?

[05:40] De Zayas:
There is no agreed definition of a people. In an article that I published some years ago and also in my 2014 report to the General Assembly, I go into the various definitions of what constitutes a people. Probably the most widely accepted definition is what is termed “the Kirby-definition”. Kirby was an Australian judge and he argued objective and subjective elements of a people. Obviously, the objective elements are common history, common culture, language, ethnic group, what you want. But also there is a subjective element of “identification”. When you have all those elements together you have “a people” . And these persons, who belong to this people, do have a right to determine their future. That’s what self-determination means. They can decide not only whether they have a status of autonomy, or of federalism, or of independence but also the kind of government and the kind of education that they want to give to their children. So a… the definition of a people is not something that is an impediment to the appplication of article 1 of the Covenant. I mean, I have no difficulty in stating, as professor of International Law, that the Catalan people are a people. And not only the population of Catalonia, those who today reside in Catalonia, but all those who identify themselves with the Catalan language, with the Catalan history, and with the Catalan culture. 

©2018 Huib J. Lirb

– About the added subjective element of the wish to be identified as a people and the consciousness of being a people: is this compatible with the concept of “civic” nationalism? 

[07:56] De Zayas:
Not sure what you imply by “civic nationalism”. We are all Europeans. And we are all bound by the European Convention on Human Rights. There is, shall we say, equality in dignity, equality in rights, and you can be, simultaneously, a patriotic Catalan and a patriotic Spaniard. But the civilised thing to do, first of all is to just sit down and discuss. See what are the options. I could see very well, if Spain were to modify its constitution to make Spain into a federal state – there are plenty of examples in the world of that – in which each federal state has a large measure of autonomy, including fiscal autonomy, which is very important: not only education, and not only relations with other states or other entities… but fiscal autonomy. That is a model that can be discussed. But what you cannot do is adamantly and intransiently say “no, the constitution forbids that”. The constitution, the Spanish constitution, pursuant to article 10 paragraph 2 and article 96 of the Spanish Constitution, incorporates the international human rights treaty regime into Spanish Law. Including article 1 of the Covenant on Civil and Political Rights. So, it is fatuous of Spanish professors to say, that the Spanish constitution forbids a referendum or that the Spanish constitution does not recognise self-determination – of course it does! And the question is: how are you going to apply it in a way that is peaceful and democratic. 

– How could Catalan self-determination be achieved in practical and political terms?

[10:32] De Zayas:
In a civilised situation, you are going to have negociations between those who want internal self-determination and those who would prefer external. What is particularly shocking is that the desire for self-determination, the expression of self-determination, has been criminalised and that politicians who have advocated self-determination have been either driven into exile or have been imprisoned. Just imagine what the reaction of the world would have been if the independentists of Scotland had been jailed by the United Kingdom. Or if the independentistst in Quebec had been jailed by Canada. It’s simply outrageous, outrageous that there are political prisoners in Europe, namely in Spain, and that the European Commission is not doing anything about it.
       The European Commission likes to micro-manage states. They get into the affairs of Poland, and into the affairs of Slovakia, the affairs of Czech Republic, the affairs of Poland, they cry foul because of threats or so-called threats to the rule of law in Poland or the rule of law in Hungary. And they are completely silent about what’s going on in Spain which is many times worse. What does that tell me? International law is applied à la carte, is being applied arbitrarily. And what consequences derive from that? The credibility of the European Union. The credibility of the European Commission. The credibility of the European Parliament is at stake. It’s not just the breakdown of the rule of law in Spain. It is the breakdown of the credibility of the organisation that should safeguard and guarantee the human rights of all Europeans, including the Catalans.

 

©2018 Huib J. Lirb

– The European states seem quite accustomed to ignoring the so-called “internal affairs” of Spain. Some claim from as far back as the 1930s even …

[13:30] De Zayas:
 As I say, there are a whole host of arbitrary moments here. It’s an arbitrary application of international law and of human rights law and also an arbitrary focussing on certain countries like Hungary. It is politically correct to criticise Victor Orban, but it is not politically correct to criticise prime minister Sanchez for instance. So there are here differences that cannot be rationally explained. What I’d like to say in this context of selectivity is that Europeans, especially the big powers, are concerned about the precedent that the independence of Catalonia could mean for them. The French are worried about the Bretons, and they worry about the Corsicans. The Italians may be worried that Veneto wants to separate. Or that the Lombards would want to separate, or that the Germans of the southern Tirol want to separate. The Belgians and the “Flamands” might want to split. And I say, if they want to separate, is it not more civilised to have a friendly divorce? In 1993, the Czechs and the Slovaks went seperate ways and they have been perfectly functioning, democratic societies, democratic governmenst since 1993. There is no problem. Now, the Catalans are 7,5 million people. According to the Montevideo Convention, the elements of statehood are: a population; a territory; a government – 131 presidents of the “Generalitat”; and, of course, relations with other international entities. Catalonia has it all. And it is a viable potential state, with 7,5 million people, with a vigorous industry and with a very, shall we say, efflorescent population. It would be a perfectly functioning independent country in the European Union. But it’s the precedent value that is here at stake and the Europeans, in particular the French, are afraid. 

  How authorative or immutable is a constitution if it turns out that parts of it may be at odds with International Law?

[16:51] De Zayas:  

Well, there is no constitution that is written in stone. I mean all constitutions are subject to modification. And in the case of Catalonia and in the case of self-determination, you really do not have to amend the constitution, because pursuant to these two articles I have already mentioned, 10 paragraph 2 and 96, self-determination is part of the Spanish legal order, is part of the legal order of every country in the European Union. So, if the Catalans want to hold the referendum and if the Catalans want independence, they have the right to have it. Now, there is a tendency in the public toward “status quo” – leave things the way they are, don’t rock the boat. Now this tendency to a form of conservatism can be modulated, can be mellowed, with a little bit of good will and a little bit of cooperation from the media. I have found that the reports on Catalonia in El País, in El Mundo, in the ABC, in Le Monde in France, in Le Figaro, in the NZZ [Neue Zürcher Zeitung] in Switzerland, in the Weltwoche etcetera, has been quite biased, quite one-sided. And it has not served the interests of the Spanish, of the Catalans, or in general of the Europeans. I keep saying: the Catalans are Europeans. They are good Europeans. They believe in human rights and they have given the world an example of how you can democratically and peacefully demand your right to self-determination. Unfortunately it’s being suppressed and unfortunately for whatever, probably geo-economic reasons, it’s being “freiné”, it’s being stopped, it’s being slowed down, because certain interests are worried that maybe there might be unforeseable economic consequences.

©2018 Huib J. Lirb

– On the progressive development of the right of self-determination, the concept of territorial integrity and the right of secession.  

[19:49] De Zayas:
In 2014, I presented a report to the General Assembly [of the United Nations], a report devoted entirely to the doctrine of self-determination and to the experience of the international community in handling it. Now, what is important to understand is that international law is not static. International law is dynamic, it’s always progressing. And there are certain things that have occurred since 1945 that have seen the right of self-determination evolve. We are not at the stage of de-colonisation, we are not at the stage of 1960, 1965, 1970, etcetera. We are in the 21st century, 2018. We have seen the dissolution of the Soviet Union into 15 republics. We have seen the dissolution of Yugoslavia into seven state entities. And we have had jurisprudence. Among that jurisprudence, most importantly, is the advisory opinion of the International Court of Justice, 2010, on the unilateral declaration of independence by Kosovo. It is not so much the fact that a unilateral declaration of independence does not violate international law, that is pretty obvious. So, I mean, that is not the crux of the matter. That is not where the focus should be.

     The focus should be: where are the obstacles to obtaining self-determination? And then Spain will tell you: “ah, territorial integrity!” And they’ll say: “the principle of territorial integrity is absolute!” It isn’t. It has never been absolute. But then the International Court of Justice put this question to rest. It answered the question. Is territorial integrity somehow hierarchically more important than self-determination? Answer: no. And then the International Court of Justice goes beyond. It says: in the United Nations Charter, article 2, article 4, in resolution 2625, in resolution 3314, in the Vienna Declaration and Programme of Action, in the Millennium Declaration. Even the OSCE in the Helsinki Declaration of 1975. Whenever the principle of territorial integrity is invoked, it is invoked in the context of inter-state relations. Meaning: state A cannot encroach on the territorial integrity of state B; state A cannot occupy the territory of state B; state A cannot aggress state B. Never, néver is the principle of territorial integrity to be used internally, because that would immediately nullify the right of self-determination and it would nullify the right of the Slovenes to their independence and would… because obviously, what happened when Slovenia declared itself unilaterally independent? It broke the territorial integrity of the [Socialist] Federal Republic of Yugoslavia. Ditto when Croatia declared itself independent. Ditto when Bosnia and Herzegovina declared itself independent. And in the case of Kosovo, it’s even more, shall we say, more obvious and more crass: here, in order to obtain the separation of Kosovo from the rest of Yugoslavia, from Serbia, NATO actually carries out an illegal use of force, bombs the hell out of Belgrade and the hell out of Serbia in order to destroy the territorial integrity of a European State. It’s absolutely surrealistic how anyone could say that territorial integrity is sacrosanct when the Europeans themselves and NATO itself destroy the territorial integrity of European country. So, I don’t want to hear about that. 

      I mention all of that in my report. And what’s important in my report – it’s A/69/272. What’s important in the report is that I develop 15 criteria “who?”, “what?”, “when?” How can you invoke the right of self-determination? What are the consequences? Who may invoke the right of self-determination and what are the obligations that ensue for the international community to help that country be incorporated into the international community as a functioning democracy that respects human rights? And I see absolutely no problem for an independent Catalonian state if indeed that is what the Catalans want. I am not a Catalan. So, if they want to hold a referendum and a majority wishes to separate, that is their good right and I will respect it. If a majority wants to remain within Spain, so be it. But it is essentially a decision that belongs exclusively to the people of Catalonia. 

– Competing “Nationalisms” and “Patriotism”

[28:37] De Zayas:
Epithets and neologisms are flung about all the time in the political debate. It’s… When you dislike someone you call them a “populist”. And then if the government dislikes you, they will call you a “terrorist” or an “insurgent” or something of that nature. So as to, you know, put an odium on you. I mean, there is nothing wrong with being a patriot, there is nothing wrong with loving your country. I mean, I am thinking of a poem by Rainer Maria Rilke, called “In dubiis”, meaning “In doubt”. It’s a wonderful poem in which he… The first three strophes is totally cosmopolitan and “the world”, etcetera etcetera. And how does it end? He says he doesn’t bow to flags unfurled, he doesn’t bow to these ideas of patriotism. He will fight for his community. He will fight for his family, for his people. That is his kind of patriotism. So, there is nothing wrong with that.That’s actually very healthy. Because only if you love your homeland, only if you love Catalonia or you love Spain, will you work constructively for it. And it is unfortunately this culture of fear, this culture of “what if?”, that prevents progress in the relations between peoples. And I can only wish the Spaniards, Madrid and Barcelona, that, with time, they will reach a compromise that will satisfy the desires and the needs of all Spaniards, whether Catalans or Basques, or Galicians, or Andalusians.