In relation to the debate on the right to decide and self-determination that once again looms large over the national political scene, it is advisable to make some considerations that shed light on its legal viability in our system. Recognized by international law, the exercise of the right to self-determination appears linked to situations of colonial domination and systematic violation of the rights of the subject population. Only in such a repressive context do international resolutions legitimize their use and their legitimacy is recognized. Thus, in the framework of a democratic State of law like the Spanish one, in which the standards of freedoms and rights established at the international level are respected, the right of self-determination does not have the protection of said area. This route, no matter how much it is appealed to by pro-independence sectors, is impassable. A similar conclusion is reached based on our regulatory framework. Indeed, the Constitution affirms that sovereignty resides in the Spanish people from whom all powers emanate. It is a statement that assumes the citizenry as a whole as a subjective reference, avoiding an approach in fragmentary terms (other peoples or other nations). This is not an obstacle, however, to recognizing, along with the principle of unity and indivisibility of Spain, the existence of nationalities and regions that enjoy political autonomy. And, as the Constitutional Court stated very early, “autonomy is not sovereignty.”
A related but different issue from these general premises is whether it is feasible in legal terms for an autonomous community to unilaterally call a referendum in which it asks its members whether or not they are in favor of independence. Already on the occasion of the failed Ibarretxe plan, but above all, in the wake of the process, the Constitutional Court in a long saga of resolutions has closed the way to such a possibility. Firstly, from a general perspective, pointing out that issues related to sovereignty are beyond the scope of competence of the Autonomous Communities. Likewise, specifically, stating that they lack the power to call, on their own initiative, a referendum or popular consultation on such an issue.
Now, to obtain a complete image of the issue raised, it is essential to draw attention to the fact that the Constitutional Court has indicated the legal path that any territory that intends to raise its independence or self-determination should follow: present a proposal for constitutional review before the General cuts. Given that, unlike what happens in other systems (Germany or Italy), our Constitution does not establish material limits on its reform (there are no intangibility clauses), it is possible to activate processes to alter any of its precepts, including those related to the sovereignty and the unity and indivisibility of Spain. Whether these initiatives prosper and are approved will depend, therefore, not on whether a self-determination referendum is held in a territory nor on the activation of a constitutional convention in which the State and one or more Autonomous Communities (whether historical or forals), but of an arduous and complex process of constitutional review, whose final point refers us to the necessary ratification by the Spanish people through a referendum. There are, therefore, no legal shortcuts that allow the right to decide, self-determination or the establishment of a confederal State to be simply exercised. Once the legitimate political discussion has been raised on the substance, when the time comes for its effective materialization, the corresponding forms will have to be respected.
Ana M. Carmona is a professor of Constitutional Law at the University of Seville.
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