Sprašuje Veronika Cukrov

1. What sort of role, if any, should political criminal prosecution have in the modern society? 14 Catalan cabinet ministers were prosecuted and some jailed for rebellion, sedition and embezzlement. It is a common consent that some forms of political criminals still exist, such as terrorists. Do you agree with jailing separatist movement members, such as those from Catalonia?

It is difficult to abstractly answer on this question. Virtually all criminal legal systems, including those of well-established constitutional democracies, know of certain criminal acts, which are, broadly speaking, conceived as the threat to the established constitutional order. This is a grey area of intersection of law and politics, which is becoming even blurrier in situations like the present one in Spain. If one rephrases this question in the following way – should a mere separatist rhetoric, as a platform for an organized political action, be criminally punishable – my answer would be no. As long as political activity, including the separatist one, is not based on violence, it should receive protection under the freedoms of expression and association. This stance is confirmed by the ECtHR’s jurisprudence in a series of cases regarding several Kurdish political parties (Socialist Party and Others v. Turkey; 20/1997/804/1007; 25 May 1998; Freedom and Democracy Party (Özdep) v. Turkey; 23885/94; 8 December 1999; Yazar and Others v. Turkey; 22723/93, 22724/93, and 22725/93; 9 April 2002), which were banned by the Turkish Constitutional Court on account of unconstitutionally fostering ethnic distinctiveness of Kurds and, thus, promoting separatism. In all the aforementioned cases, the ECtHR used the ‘violence test’, arguing that as long as no violence is used as a means for reaching political goals, even a secessionist political agenda enjoys the protection under the freedom of assembly and association (Art. 11). In Court’s words, the essence of democracy is “to allow diverse political projects to be proposed and debated”. All this does not by default exclude the possibility that some separatist party officials or members are individually involved in certain criminally punishable acts, which are not necessarily political in nature (e.g. embezzlement). However, in such cases it is of the utmost importance that such criminal charges are not mere cover for the hidden political prosecution.

2. Does mere declaration of independence in your view have, or let's say should have, legal consequences? The famous advisory opinion of the International Court of Justice stated that Kosovo's declaration of independence wasn't illegal, since it in some way posed no legal consequences.

It is first important to note that the ICJ rephrased the question that had been submitted to it. Whereas it was asked to assess whether the Kosovo universal declaration of independence (UDI) was “in accordance with international law”, the ICJ somewhat laconically concluded that “[t]he answer to that question turns on whether or not the applicable international law prohibited the declaration of independence” (Advisory Opinion, par. 56) According to many commentators, including Judge Simma who drafted a separate Declaration, with this specific reformulation in mind the ICJ resurrected the outdated Lotus principle, which favorites “anachronistic, extremely consensualist vision of international law”. Once it had decided to narrow down the question as to investigate the existence of a general prohibitive rule of international law, the ICJ concluded that the state practice “points clearly to the conclusion that international law contained no prohibition of declarations of independence.” (par. 79) Despite being so, the ICJ stated that a UDI, including the one in the Kosovo case, would be deemed illegal either if it were issued in connection with some violation of general international legal norms of jus cogens, or if it were as such prohibited by some special legal regime, like the Security Council Resolution 1244. And yet, The ICJ’s overall argumentative strategy was to separate the fact of issuance of the declaration of independence from the purported legal effects of that act. It supposedly focused only on the former issue, while leaving aside the letter. However, one can reasonably ask whether an entity can declare independence without violating international law, but then find itself in the violation of international law, when it manages to effectuate independence by seceding and creating a new state. Since this reasoning seems hardly consequential, one may infer an implicit ICJ’s conclusion regarding unilateral acts of secession. It is that the principle of effectiveness will eventually determine if a declaration of independence has resulted in the creation of a new state. Hence, while it remains open whether the Kosovo Advisory Opinion indeed provides a first-help tool kit for various secessionists around the globe, as was back then also believed by Catalan separatists, it is far clearer that the ICJ’s Opinion can hardly advance the cause of international rule of law in self-determination conflicts.

3. How do you think international law will develop in light of current events? Is public opinion likely to shift modern paradigms into favoring Catalan independence?

I will refrain from making any prognosis of such a nature. Instead, I will leave readers to test their intuitions regarding these questions in light of my analysis of the ICJ’s Kosovo Advisory Opinion, which I have published some five years ago. There I argued that some of the Court’s findings were of rather general nature. Apart from finding in which circumstances a UDI would be in the contravention of international law, the Court also concluded that “the scope of the principle of territorial integrity is confined to the sphere of relations between States” and, hence, did not concern non-state actors, including secessionist groups. Moreover, the Court found that “persons who acted together in their capacity as representatives of the people” of some territory under the UN interim regime of governance were not bound to act within the framework of powers and responsibilities established to govern the conduct of provisional institutions. I thought back then – and I am still thinking – that these findings of the Court might have quite troublesome consequences for the future of self-determination conflicts. First, by being excluded from the duty to respect the jus cogens norm of territorial integrity, secessionist groups, as non-state actors, might be inclined to use all possible means, including the violent ones, to seize as much power as possible over delineated piece of territory of the recognized state. Second, secessionists may now even more relentlessly resort to the issuing of UDIs, while simultaneously searching for some patron(s) among Great Powers, which would at the critical moment back up their strive for statehood, by formally recognizing the new entity as a state. While the Catalan case in that respect is not so illustrative, let us not forget the dynamics of the secessionist tale of Abkhazia and South Ossetia, which occurred only six months after the western recognition of the Kosovo UDI. Finally, less stable states, drawn into prolonged self-determination conflicts with their rebellion minorities, will be dissuaded from entering into provisional UN-mandated conflict-settlement, which is hardly in line with the purposes of the world organization, enshrined in the opening article of its charter.

Dr. Miodrag Jovanović je redni profesor na Pravni fakulteti Univerze v Beogradu.

Posebna zahvala Matiji Žguru.

[1] Vir: http://misamajic.com/wp-content/uploads/2016/06/P5290019-tekst-m.jpg