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International Law

Unilateral Declaration of Independence by Catalonia: Examining Legality under International Law

Abhishek Trivedi

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October 2017 has been marked a historic month for the people of Catalonia, as Catalonian Parliament passed a resolution by a vote of 90% in favour of independence out of 43% of potential voters who took part in voting.The unilateral declaration of independence by Catalonia has laid down the foundation of an independent ‘Catalonia Republic.’

The demand of the Catalonian people for the independence and separation from Spain has been a long controversial issue in this region of Europe. Catalonia is a home to 7.5m people (16% of the total) and accounting for 19% of national GDP, Catalonia is one of Spain’s richer regions. It has formed an integral part of Spain since the 16th century (and of the Kingdom of Aragón before that), but it has its language and culture. Until recently Catalan nationalists were content with home rule. Two things led to increasing support for independence. First, Spain’s Constitutional Tribunal rejected parts of a new statute that would have given Catalonia more autonomy. In 2006, the Spanish government backed Catalonia’s calls for greater powers granting “nation” status and financial control to the region, but that status was rescinded by the Constitutional Court, which ruled that while Catalan is a “nationality,” Catalonia is not a nation itself.Second, more importantly, nationalist politicians in Barcelona succeeded in deflecting against Madrid widespread anger at the austerity that followed the bursting of Spain’s housing and financial bubble in 2009.

Legality of Unilateral Declaration of Independence under International law

This question for the first time came before International Court of Justice (hereinafter ICJ) for consideration in 2010. The issue was brought up by General Assembly of United Nations Organization under Article 36 paragraph 1 of ICJ Statute and Article 96 paragraph 1 of United Nations Charter. ICJ admitted this request of General Assembly under its advisory jurisdiction and laid down the legal position of international law on the point of unilateral declaration of independence.

This request before ICJ was brought up in special reference to Kosovo where Kosovo declared independent from Serbia in 2008 and founded itself as the Independent Republic of Kosovo. Till now there are 111 member States of UNO which have recognized the independence of Kosovo.

ICJ in its advisory opinion has laid the foundation of legality which attaches to the independent declaration of independence by any country. In reply to the question whether the declaration of independence is in accordance with international law, ICJ has said that according to State practice there is no prohibition of declaration of independence. The general international law contains no applicable banon anindependent declaration by a State—making Kosovo declaration not violative of international law. One of the critical, contentious argument placed before the Court was that prohibition of unilateral declaration of independence is implicit in the principle of territorial integrity. But the Court limited and confined the scope of this argument only to the sphere of relations between States, as the same has been reflected from Article 2(4) of the UN Charter and Article IV of Final Act of Helsinki Conference on Security and Co-operation in Europe, 1975

Moreover, ICJ in the cases of South West Africa case, 1971, East Timor case 1995, and Construction of Wall case, 2004 also noted that during the second half of the twentieth century, the international law of self-determination developed in such a way as to create a right to independence for the people of non-self-governing territories and for the peoples who are subject to alien subjugation, dominion and exploitation.

In this entire process of making aunilateral declaration legal, several questions have to be answered and examined in the light of facts and circumstances in which such declaration of independence by Catalonian Parliament was pronounced. Such as who were the authors of the declaration of independence? What is the legal identity of the authors of aunilateraldeclaration? Whether they were acted under the auspice of Spain government within the constitutional framework of Spain or acted ‘together’ in their capacity as representative of the people of Catalonia outside the constitutional framework of Spain, or whether the author of the declaration was bound by the legal framework of powers and responsibilities established under Spanish constitution to govern the conduct of the Catalonian parliament. However, justification to all these questions is necessaryfor thepurpose ofdomestic law onlyto attach the legality to such declaration. Under international law, amere declaration of independence is enough to attach legality, provided it has not been, otherwise, declared illegal. Under themunicipal legal system of Spain, the referendum might have no legal status as Spanish Constitutional Court has prohibited it. The court said thatSpain’s democratic constitution of 1978, approved by more than 90% of Catalan voters, gave extensive autonomy to the Catalonia regions but affirmed “the indissoluble unity of the Spanish nation.” Only the Spanish parliament can change the constitution. The referendum is, therefore, illegal under Spanish Constitution.

Under international law, the referendum is one of the modes, among other things, of exercising the right to self-determination, and in a contemporary era where people regard democracy as the best form of government in which people directly chose their representative. Referendum or plebiscite, on the other hand, is nothing but an expression of the will of mass people in deciding an important social or political question. In the case of Catalonia where 90% of the 2.26 million Catalans who voted in favour of independence in a referendum held on 1st of October. The region has 5.3 million voters; officials said 770,000 votes were lost due to disruption which resulted in polling stations being raided by Spanish police. It follows that the referendum to be one not represented the will of even majority of potential Catalans voters, as only 43% of the potential Catalans voters voted inthe referendum and out of this only 38% (90% of 43%) voted in favour of independence.

It mustbe noted that legality of theunilateral declaration of independence in international law is different from itslegalityunder domestic law. As under the domestic legal framework, theconstitutional court of Spain has struck down the referendum, but the same might have been declared legal if examined through the lenses of international law.

A way forward for Catalonia

The existence of self-determination as a right under international law is different from its being operationalization under municipal law. Mostly during the peacetime, aclaim for self-determination of people gets implemented through thedomestic procedure. Thus, it requires the claim to be operationalized in strict compliance with the domestic legal framework of a country of which the ‘people’ form a part of it. Catalonia referendum might be held illegal under thedomestic law since it is not in accordance with the constitutional framework of Spain, but it does not preclude the possibilities of being legal under international law. Under international law, it might get legality as well as legitimacy, regardless of its illegality under Spain law, depend upon the de-facto recognition of it by other States. The existence of a State under international law, for the purpose of establishing friendly relations with other States, depends upon its capacity, among other things, to develop and maintainpolitical and diplomatic relations with other States in international discourse. Therefore, if other States start to recognize Catalonia as an independent sovereign State, then it may get a status of being an independent sovereign State in relation to those States only.

Abhishek Trivedi is pursuing his LL.M. degree in International Law from Faculty of Legal Studies, South Asian University-an International University established by SAARC Nations, New Delhi. His fields of interest and research in academics are Public international law, Law of International Organization, Human Rights law, Conflict of laws, commercial arbitration and International Environmental Law

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International Law

Human Rights Council election: 5 things you need to know about it

MD Staff

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The United Nations General Assembly held secret-ballot elections for the Human Rights Council (HRC) on Friday.  As of 1 January next year, the 18 newly-elected States will serve for three years on the UN’s highest inter-governmental body, mandated to protect and promote human rights worldwide.

While the institution has been the subject of controversy since its creation in 2006 – culminating in the withdrawal of the USA this past June – UN Secretary-General António Guterres reiterated that it plays “a very important role” in the UN’s human rights architecture.

1. First of all… how does it all work?

Elections to the Council happen annually, with countries serving for three years on a rotational basis, as some of the seats expire on 31 December every year. There are 47 seats, equitably distributed according to five regional divisions.

Countries need a minimum of 97 votes to get elected, and everything happens by secret ballot. This year, 18 seats were up for election:  five for Africa, five for Asia-Pacific, two for Eastern Europe, three for Latin America and the Caribbean, and three for Western Europe and other States.

2. So… who’s in and who’s out?

After Friday’s election, here’s how the Council will look from 1 January:

IN, elected this year: Argentina, Austria, Bahamas, Bahrain, Bangladesh, Bulgaria, Burkina Faso, Cameroon, Czech Republic, Denmark, Eritrea, Fiji, India, Italy, Philippines, Somalia, Togo and Uruguay.

IN, continuing their terms: Angola, DRC, Egypt, Nigeria, Rwanda, Senegal, South Africa, Tunisia, Afghanistan, China, Iraq, Japan, Nepal, Pakistan, Qatar, Saudi Arabia, Croatia, Hungary, Slovakia, Ukraine, Brazil, Chile, Cuba, Mexico, Peru, Australia, Iceland, Spain, and United Kingdom of Great Britain and Northern Ireland.

OUT, because they didn’t apply for a second consecutive term: Belgium, Burundi, Ecuador, Georgia, Kyrgyzstan, Mongolia, Panama, Slovenia and Switzerland.

OUT, because after two consecutive terms, they’re not eligible for re-election: Côte d’Ivoire, Ethiopia, Kenya, the Republic of Korea, the United Arab Emirates, Venezuela and Germany.

3. What does the Council actually do?

In a nutshell, the HRC is a multilateral forum to discuss anything relating to human rights issues around the world.

In addition to launching fact-finding missions and establishing commissions of inquiry into specific situations, it meets three times a year to review the human rights records of all UN Member States, in a special process designed to give countries the chance to present the actions they have taken, and what they’ve done, to advance human rights. This is known as the Universal Periodic Review.

This video explains it all in a simple way:

4. How come some countries accused of human rights violations still serve?

The HRC was created in 2006, following a proposal by former Secretary-General Kofi Annan. In a report titled “In Larger Freedom”, he noted that the Commission on Human Rights, created in 1946, was suffering from “declining credibility and professionalism” and was “in need of major reform”. Subsequently, based on his recommendations, the Human Rights Council was established by the General Assembly to replace the Commission and several measures were put in place to try and avoid the same problems that eventually arose with the Commission.

For example, as it is understood that the Council can only be as effective as its Member States, the election process was placed directly in the hands of the General Assembly, the only UN organ where every one of the 193 countries has equal voting weight.

In addition, the geographical group divisions and seat allocations are meant to prevent disproportionate focus on just a handful of regions and countries, and ensure that every country has a chance of fair consideration.

Finally, during the elections for each regional group, the General Assembly allows extra blank slates: this should theoretically ensure there are more candidates than available seats, enabling a competitive process. However, if – as was the case this year with 18 candidacies for 18 available seats – no extra countries apply, then no competition occurs, and whichever Member State applies, is likely to get elected.

5. So does the HRC make a difference for human rights worldwide?

Although human rights have always been a very sensitive matter for Member States, the Human Rights Council remains an essential part of the UN’s human rights architecture.

The Council has the power to adopt resolutions, launch fact-finding missions and investigations, and establish commissions of inquiry. In particular, the HRC can appoint independent experts on specific issues. At the moment, there are 44 thematic experts and 11 country ones appointed to monitor and report on human rights issues as requested.

All these mechanisms allow for grave violations to be highlighted and brought up on the global stage for examination, discussion and, whenever feasible, action.

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International Law

Unilateralism Vs Multilateralism

David Ceasar Wani

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During the 73rd sessions of the general assembly at the UN, the crunch of unilateralism and multilateralism between US and China kicked off, in which Trump’s unilateral visualization of the world likely to hurt the US, but it might undermine his presidency. As the competitions between unilateralism and multilateralism are viewed inversely. According to the international relations scholars, unilateralism has defined an approach in international relations in which states act without regard to the interests of other states or without their support. Unilateralism is usually contrasted with its opposite approach, yet multilateralism is acting cooperatively with other states. Though unilateralism is often used in a negative way, experts agree that there are positive aspects to occasionally acting unilaterally, such as in issues of national self-defense.

Some politicians and international experts support unilateralism, at least for certain issues. An example of a unilateral action is the U.S. President Donald Trump’s decision to withdraw from the Paris Climate Accord in 2017. The Paris Climate Accord was actually negotiated and approved by nearly 200 nations around the world, and the issue of climate change is impossible to be handled significantly without united efforts of all the countries, particular the major ones. Trump withdrew from the Paris Climate Accord, saying that it hurt American jobs and American interests as well. Trump’s decision was opposed by many experts and average people around the world including the United States.

Nevertheless, it is believed that unilateralism is a policy of dealing with affairs that may be violent, regardless of the will of other countries or nationals. Given this, the most prominent feature of multilateralism is the negotiation since it can pay close attention to the shared interests of the majority and take practical and reasonable measures to deal with affairs in international affairs. The U.S. adopts unilateralism as a kind of closed rather than open behavior. Self-interest is the American priority mentality that Trump previously reiterated, and this approach seems to be a good way to safeguard the interests of the United States, but in fact, it is inconvenient for American nationals, and for the United States.  Conversely, politics, diplomacy, and trade all have disadvantages and this disadvantage can be a hindrance to domestic investment, risk from political changes negative influence on exchange rates, higher costs, economic non-viability, expropriation, negative impact on the country’s investment, modern-day economic colonialism and etc.

From this point of view, it can be said unfavorable to Americans. The reason why the United States has become strong from a dispersed federation compared with the confederation is mainly between states. Improvement of politics and other status has enabled the United States to develop and be strong because of a strong government. If the United States 1787 Constitution was originally formulated by the founding fathers’ generation, and then adopted unilateralism and did not negotiate, it is unimaginable that there would be a powerful United States today. So now Trump adopts unilateralism, which is contrary to the spirit and method adopted by the U.S. Constitution. The threat to his presidency is great because unilateralism is difficult to promote the cooperation and development of national economies. The interests generated by the United States are very short-lived, but they pose great threats to their long-term development and the long-term interests of their citizens. Therefore, when dealing with state affairs or international affairs, multilateralism should be adopted and negotiated. The problem is that we can better safeguard the interests of all parties, maximize the benefits, and promote the development of countries and their own economies.

In conclusion, it is important to understand the evolution of China’s concept of multilateralism, because one has to begin with China’s particularly humble experience with multilateral institutions e.g. it’s being kept out of the United Nations (UN) and its institutions during its preliminary decades as also for it is being the target of UN criticism and sanctions (for Korean War) during those years. The things were to begin to change following the Sino-US rapprochement and China’s entry into the UN and other multilateral institutions from the 1970s. Another crunch change to overlap with the late 1970s was the rise of Deng Xiaoping to power in China. Deng’s economic reforms and openness become the driving force behind China’s conclusive shift toward multilateral institutions.

According to Zhang Baijia, expert at the Chinese Communist Party’s (CCP) Central School, numerous internal and external developments during the first half of the 1980s were to expressively influence Deng’s strategic thinking in three major ways: (a) Deng aborted the long-held view that world war is inevitable’ and instead stresses on ‘peace and development’ as central theme for China; (b) Deng acknowledged that the contemporary world is heterogeneous in nature and that conflicts coexist with cooperation and competition with interdependence; and (c) Deng maintained that independence does not equal isolation and self-reliance does not mean rejecting all foreign things as had been the case during Mao’s times. Change in Deng’s worldview was to result in the change in China’s approach towards international institution and towards the whole idea about multilateralism.

As a result, the whole of the 1980s witnessed extraordinary qualitative and quantitative changes as China gradually involved itself in not only international organizations in the political domain but also expanded its participation in economic and security types of multilateral forums. As regards China’s future vision on multilateralism, it has been motivated primarily by China’s felt need (a) for undermining the basis of United States’ unilateralism and its global power profile and (b) for making efforts to become acceptable as the benign rising power amongst its immediate neighbors and amongst the world at large. By far these two remain China’s most important foreign policy challenges through its rise as a major power has already been accepted as a given reality in general. The conditions have also been facilitated by external dynamics, especially following the collapse of former Soviet Union which has shifted the focus of international relations and led to the widening of the whole understanding of security and strategic calculations amongst major players therefore moving the dynamic of international power politics beyond two superpowers to include new actors like China.

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Strengthen UN, Implement UN Charterer in true spirit

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Humanity is suffering everywhere whether it is Syria or Yemen, Afghanistan or Libya, Iraq or Myanmar, Palestine or Kashmir. The one who are being killed are human beings, irrespective of his or her race, color, religion, nationality, its human lives which are being lost. Last couple of decade, around 2 million people have been killed, 6 million have been made refugees in their own country or forced to migrate to other countries. Threats and tension is felt in Iran, Turkey and North Korea, Ukraine, and many other parts of the world.  If one switches on TV or read or listen to News, it is all about War, Killings, Blasts, hate and suppressions. People are fed-up of bad news all the time. Everyone is suffering with mental torture. Geo-political situation is deteriorating rapidly. The world is less safe than few decades ago. Insecurity feelings are rising exponentially. What is new world order? On the name of World new order, we have made this world more hostile and fragile. Who is suffering, humanity! Who is the beneficiary, end of the day, no one will be winner.

United Nation General Assembly is busy in its 73rd session. Leaders from all over the world are meeting each other and making speeches one after another, but what will be the out-come or result?

United Nation was founded on 24 October 1945, just after the World War II, in replacement of League of Nations. Its head quarter is at New York, USA. The United Nations is an intergovernmental organization tasked to promote international co-operation and to create and maintain international order. The charter of UN was very well drafted and very comprehensive. Its charter was formulated on justice and equality. It was hard work of genius people.

But with the passage of time, it is losing its effectiveness and failed to maintain world order. Some nations became so strong that, they put aside the UN and act unilaterally. Some nations are so stubborn, that they violate UN charter openly and feel no guilt. Some countries are so feeling-less that the whole world condemned them but they keep criminal silence.

Should we stay calm and just became spectators and watch what so-ever will happen? Should we leave all the issues to our next generations to suffer? Should we close our eyes and do not acknowledge the issues? Can we escape? Can we be ignorant? Can be we so cruel to our kids and leave them to be humiliated?

I believe, it is time to think and raise our voice, and struggle for a better tomorrow, better tomorrow for everyone, better tomorrow for my kids, better tomorrow for your kids, better tomorrow for our next generation, better tomorrow for everyone. We should struggle to make our tomorrow better than our yesterday. Think positively, act smartly and be optimistic.

We demand, respect of the UN , we demand for implementation of UN charter, We demand for justice, We demand for equality, We demand for fair-practices, We demand respect for human kind, We demand for a stoppage of killing, we demand stoppage of violence, We demand for protection of weak, We demand for uniformity etc.

It is natural, when we live together, the differences may rise among us. It can be among individuals or nations. It is very much normal and was happening since ages. We quarrel with our kids, brothers and sisters, parents, spouse or friends, boss or subordinates or colleagues. It is understandable. But we live in a civilized world. There are mechanisms to resolve the differences. In our day to day life we are over-coming on many issues and resolve with each other. The same approach may be followed to resolve the differences or misunderstanding among nations. UN is the right platform, UN charter is the proper guidelines for resolving the issues. Diplomacy is the weapon of civilized world. We all must respect UN, and its charter and resolve all issue through peaceful manner and dialogue. No one should have the right to by-pass UN or impose its decisions unilaterally.

I suggest, the International Community may join hands and strengthen UN and implement its charter in true later and spirit. UN may investigate the history of almost 7 decades and point out all the violators and let them declare responsible for their wrong doings. Force them to rectify their mistakes, compensate their wrong doings. UN should strengthen to the extent that any country how strong it might be, should not dare to violate UN charter. Any sanctions without UN approval may be declared null and void. Any military action without UN approval may not be recognized and declared criminal acts. They must be punished for their heinous crimes and war like crimes.

Let us struggle to make this world a place of “Peace, Harmony, Justice, Equality and Prosper” place for our generations to come. We may sacrifice but our next generation may enjoy Peace, Harmony and Prosperity.

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