Letter in reply to a nationalist’s desires
No fundamental right is unlimited or free of controversy. Any rights must be balanced with the rights of others and the community’s safety and stability. In the case of the self determination rigth, the dilemma lies in determining the circumstances which justify such extremes as independence or secession.
In international law, secession and self-determination are not even remotely synonymous. Secession is categorically proscribed and self-determination is contemplated, bar colonial situations, only through self-government within an existing state. The latter occurred in Spain when the 1978 constitution, which recognises the diversity of the country’s national identities, was adopted with overwhelming popular support. Just ten years later, a federal-type system with a very high degree of local and fiscal autonomy was in place. Indeed, the right to self-government and identity rights were so thoroughly guaranteed that the pro-independence Catalan government had to acknowledge in its 2014 White Paper on national transition that ‘neither EU nor international law has any provision for a procedure […] to convene a consultation of the sort the majority of the people in Catalonia are demanding.’
Which brings us to one of Mrs López’s more reasonable desires: one day an international conference should be convened to review the right to self-determination and establish the criteria needed to implement it. Although she informs us that these criteria will need to be broader —(alas) she fails to say what these criteria might be— than the ‘all-too Canadian’ Clarity Act, which recognises the possibility of secession provided that the decision is not unilateral, has the support of a clear majority and respects the rights of minorities, which may involve the redefinition of borders.