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The Scope and Limits of the European Arrest Warrant: The Case of Catalan Exiles

[Editor’s Note: We welcome comments in response to this post, as we do to all posts. Please contact Richard Albert and David Landau by email to submit a response for publication consideration.]

Antoni Abat i Ninet, Professor Constitutional Law, Faculty of Law – University of Copenhagen and Joan Queralt Jiménez, Professor of Criminal Law, Faculty of Law – University of Barcelona

Sixteen Catalan representatives and the leaders of two grassroots associations are currently facing severe criminal charges in Spain for organising and celebrating a referendum of self-determination of 1 October 2017. This consultation was banned by the Constitutional Court and repressed violently by the Spanish armed police.

Unlike the previous criminal charges against former Catalan representatives for organising a symbolic popular consultation on independence on 9 November 2014,[1] nine people have to this day been imprisoned for more than 175 days, in pre-trail detention and facing charges of rebellion (among others) which carries a maximum sentence of 30 years in prison, if found guilty. The pre-trail imprisonment of these political leaders and grassroots activists in undignified and inhumane conditions is unjustified in the view of many. The nine political prisoners are imprisoned in the Madrid area at 600 km from home. The policy of dispersal under which prisoners are removed from their families is in addition a punishment for the prisoner’s family and loved ones, since they are forced to undertake long and difficult journeys, involving a high risk of accidents.

The rest of seven accused are currently “in exile” and the judiciary of Belgium, Scotland and Germany have been asked to execute the European Arrest Warrants and to deliver these Catalan representatives to the Spanish justice. Switzerland, a non-member of the European Union will apply the Treaty of extradition with Spain of 1883, the European Convention of Extradition of 1957 and the Swiss Federal Act of 20 March 1981 on international Mutual Assistance in Criminal Matters.

As is usual in any procedure of involving the European Arrest Warrant (EAW), the competent judicial institution will analyse whether the request fulfills some basic legal requirements in order to be executed. As the European Commission remarks, the EAW is a judicial decision enforceable in the Union that is issued by a Member State and executed in another Member State on the basis of the principle of mutual recognition.[2] The grounds for refusal of execution are limited and exhaustively listed in Articles 3, 4 and 4a of the Framework Decision on EAW. There is no verification of double criminality as a ground for non-execution and non-surrender with regard to 32 categories of offences listed in Article 2(2) of the Framework Decision on EAW, as defined by the issuing Member State, where those offences are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years.[3]

The Spanish Supreme Court first issued an EAW to arrest President Puigdemont and other members of the former Catalan Government residing in Belgium. In an odd decision the Magistrate in charge of the procedure, Llarena, decided to withdraw the EAW. The withdrawal was justified basically with three arguments. The first was the possibility that the exiles in Belgium would return (which seemed to be more wish-full thinking than a real possibility). The second argument focused on the multi-subject character of the cause, specifically that there are many imputed that have to be treated equally. Finally, a third reason was the need to avoid the risk of a potential refusal of any surrender to the Spanish justice due to the lack of sufficient guarantees being given.

Months later, and in a different stage of the criminal procedure but still in the pre-trial stage, the same Magistrate issued a new EAW ordering the arrest of the Catalan representatives in exile. President Puigdemont was arrested in Northern Germany after crossing different EU countries and with a GPS tracker in his car. The second EAW was then initiated and the Spanish judiciary, political parties and media celebrated the capture of the fugitive and expected a fast hand over to the Spanish authorities.

However, on 5 April, the High Court of Regional Land of Slesvig-Holstein decided to release on bail the Catalan President and not to grant the extradition for the charges of rebellion (the worst charge). The fears that had motivated the withdrawal of the first EAW increased.

Today there is real anxiety that the Spanish request will not overcome the screening process of democratic justices on matters of rebellion, sedition and misappropriation. To this we might add serious concerns with breach legal and procedural guarantees for the prosecuted (such as the assignment of the case to a judge predetermined by law).

The German decision on the EAW request on President Puigdemont will be limited to the charges of misappropriation. It would be imprudent to predict a result but this decision and the forthcoming judgments in Belgium, Scotland and Switzerland can prompt a recognition within the Spanish government that the solution to the Spanish-Catalan conflict is political and not criminal.

Suggested Citation: Antoni Abat i Ninet & Joan Queralt Jiménez, The Scope and Limits of the European Arrest Warrant: The Case of Catalan Exiles, Int’l J. Const. L. Blog, Apr. 20, 2018, at: http://www.iconnectblog.com/2018/04/the-scope-and-limits-of-the-european-arrest-warrant-the-case-of-catalan-exiles


[1] http://www.iconnectblog.com/2017/02/catalan-political-representatives-stand-criminal-trials.

[2] Commission Notice of 28.9.2017, Handbook of How to Issue and Execute a European Arrest Warrant.

[3] Ibid.

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Published on April 20, 2018
Author:          Filed under: Developments
 

20 Responses

  1. […] ANTONI ABAT I NINET and JOAN QUERALT JIMÉNEZ describe the conflict over the Catalan secessionists in "exile" and their arrest warrants and extradition proceedings, and hope that the expected court decisions from Germany, Belgium, Scotland and Switzerland will lead the Spanish government to seek a solution by political rather than criminal means. […]

  2. Natividad Fernández Sola

    Natividad Fernández Sola
    Distinguished Visiting Professor
    Georgetown University

    Professor of Int´l law and Int’l relations
    Universidad de Zaragoza – Spain

    The idea of this comment is not to refute one by one the numerous and intentional inaccuracies that creep into the Antoni Abat & Joan Queralt’s text.
    There are no politicians exiled, but only criminals fleeing from the justice. Exile is a serious situation that can take place within dictatorships where people with different ideas are prosecuted. It is not the case of Puigdemont and his mates. The arrest warrant for them is for grave crimes against the Constitution and the public treasury, not for their political ideas. The ones already in prison enjoy the best conditions and assistance. The ones who leaved the country are living in luxurious villas and hotels in Switzerland and Belgium, payed by nobody knows who.
    Puigdemont is not President, as you said, as on December 21st, 2017 new elections took place in Catalonia. The political party Ciudadanos won the elections but the lack of consensus, political division in Catalonia and Puigdemont’s intrigues from outside has made impossible by now to appoint a new regional president.
    And, finally, you cannot say that the Tribunal Supremo (Highest Court) is not the judge predetermined by law; it is the Spanish highest judicial instance, as it corresponds to crimes such as rebellion and embezzlement of public funds.
    The most surprising in your post is the absence of any reference to the criminal offenses that the separatists committed. In 2012, the then President of the Catalan region, Mr. Mas, reached a deal with the Republican Leftish leader, Mr. Junqueras, to create a new Catalonian republic, ignoring the Spanish national unity, a principle recognized by International law and guiding the political live of most countries in the world. They prepared a roadmap to independence through an attack on the constitutional foundations of the State, without parallel in Spain.
    In September 2017, the leaders of the Catalan regional Parliament passed a “transition law” to independence (showing the authoritarian trend of the new Republic, by the way) without any enabling legislation, simply ignoring the rule of law. The same can be said for the illegal referendum to celebrate on October 1st .
    The Spanish Constitutional Court, on September 7th, suspended the Catalan independence referendum. This rapid action taken by the Court forbade the Catalan Parliament from ignoring or avoiding the Court’s suspension, appointing election officials or taking any action geared towards promoting the referendum. The Court also warned the regional Parliament of the potential criminal ramifications for failing to follow the Court’s order. The Catalan government and parliament (from which all members of the opposition had gone) acted in defiance of the Constitutional order, implemented the unconstitutional referendum, unilaterally declared independence and incited violence against the police and Guardia Civil, riots, vandalism and siege of thousands of people.
    There is a high risk of continuation of these illegal activities against the Spanish law, the Constitutional Court and the International law; hence the arrest warrant.
    As you perfectly underline, the European Arrest Warrant (EAW) “is a judicial decision enforceable in the Union that is issued by a Member State and executed in another Member State on the basis of the principle of mutual recognition. The grounds for refusal of execution are limited and exhaustively listed in Articles 3, 4 and 4a of the Framework Decision on EAW”.
    As a consequence, the April 5th decision by the High Court Regional Land of Schleswig-Holstein to release on bail Puigdemont, refusing the charges on rebellion, constitutes an inacceptable meddling in domestic judicial decisions, against the text and the spirit of the EAW.
    The action of the justice will continue because it is the way a democratic country has to prosecute the law offenders willing to break peaceful living, under the law, and recognizing the legal and political way to solve any dispute: always according to the law.

    • John

      Interesting point of view. I was reading it with lots of curiosity till I reached the following statement: “… The ones already in prison enjoy the best conditions and assistance …”. Sorry, you can go fuck yourself. Someone can think that’s an insult and therefore not acceptable in a serious discussion, but your reply is also an insult, even worst, as you try to disguise it with all sort of rational and well structured judiciary arguments. Your whole reply is biased and therefore not valid. I have a very good Turkish friend, who decided just two weeks ago to start in a newly created political party. I was surprised to learnt it, as he was enjoying a very good position in a multinational company. What he told me he wanted to fight is exactly the way you’ve described your political views ( and unfortunately the views of the Spanish government ).

  3. Mariano J. Aznar. Professor of Public International Law, Universitat Jaume I

    I fully subscribe, word by word, what my colleague Natividad Fernandez has said in her previous post. But I should like to underline something: pro-separatists in Catalonia and elsewhere (including those trying to legal fuel their arguments) adamantly maintains that there are ‘political prisoners’ in Spain or on ‘exile’. This is plainly false, and lawyers like those writing these kind of thing should review their professional ethics. Unfortunately, in Spain we perfectly know the exactamente meaning of ‘exile’ and ‘political prisoners’.
    The separatists in provisional prison in Spain or those fugitive (not in ‘exile’) in several European countries have been accussed of grave offences by the judged, under a strict compliance of the rule of law and with all their personal and political rights fully respected under that rule of law.

  4. antoni abat i ninet

    Prof Fernández, thank you very much for your comment on our entry. Let me for the sake of a dialogical approach respond some of the most interesting remarks that you are posing. I presume, even more, I am completely sure, that you are very respectful with all the fundamental rights (procedural and material) that people have (inherently and mandatorily) when facing a criminal proceeding in a democratic regime. Among these principles, the presumption of innocence. Your qualification of the politicians exiled as “criminals” is an evidence of how this presumption is breached by Spanish stakeholders, media and even some academics. So far, there is no condemnatory sentence not even a judgement against the representatives of millions of my fellow citizens that in a pre-trial situation are already in jail for more than 150 days. This laxity is a very serious matter in a democracy and it generates awful predictions that they will have a fair trial. About the definition of the term exile that appears in the text in quotation marks, I refer to the Oxford definition of the term (A person who lives away from their native country, either from choice or compulsion).

    Following the dominant repressive discourse in Spain, you also define President Puigdemont and his “mates” as fugitives. However, President Puigdemont and all the members of the Catalan Government never escaped justice and voluntarily appeared before Court in Belgium, Switzerland, Scotland and Germany.

    In your comment, you are arguing that President Puigdemont is not more a President. Well, first you will need to explain that after the last elections called by the Spanish Government on December 21st, 2017, abusing of article 155 of the Spanish Constitution, read as a carte blanche, President Puigdemont is the candidate with more Parliamentary supports. Even the Catalan Parliament has issued a resolution stating this fact and claiming that President Puigdemont cannot take office because of a breach of his political rights (United Nations and Amnesty international are clear in this extreme). Please also note that the Catalan Parliament in its resolution of March 1st, 2018 acknowledged that President Puigdemont was illegitimately and illegally destitute. And, in terms of treatment, please let me remember you that article 18 of the Catalan decree 189/1981 of July 2 on protocol and ceremonial rules states that the treatment of a President once he/she ceases to hold office remains as President.

    I agree that the principle of national unity is recognized by international law, as it is the principle of self-determination (also by Spain) and that in case of collision what prevails is the second one (See. Advisory opinion on Kosovo).

    To conclude, what you define as an “inacceptable meddling in domestic judicial decisions, against the text and the spirit of the EAW” I consider it as a safeguard of the most basic democratic rights.

    In any case, let me thank you again your comments and time to respond our entry in the blog.

  5. antoni abat i ninet

    Prof. Aznar, I also want to thank you very much your comment. Even that we have an antagonistic perspective of the facts, I won`t recommend you to review your professional ethics. The fact that Catalan representatives in exile and in prison are political prisoners is for many academics, politicians and judges beyond doubt especially after the decision of the Supreme Court Magistrate (Pablo Llarena) denying Jordi Sánchez to assist to the plenary of his investiture as President. A denial that contravenes the request of the interim measure of the UN Human Rights Committee requiring Spain to “take all necessary measures to ensure that Mr Jordi Sánchez i Picanyol can exercise his political rights”, citing article 25 of the International Covenant on Civil and Political Rights. (REFERENCE: G/SO 215/51 ESP(140)CE/AP/ma3160/201823 March 2018)
    About all these severe accusations that you are referring, so far, the accusation of rebellion has been denied in Germany, we will see briefly what other jurisdictions consider, and the accusation of embezzlement has been already refuted by the Spanish Ministers of Finances and the President of Spanish Government.

    Thanks again for this interesting academic discussion.

  6. Pablo De Lora

    In their original piece Professors Abat and Queralt claim that the so-called political prisoners do suffer from “undignified and inhumane conditions” in prison. Is that because of the distance from Barcelona to Madrid? What other reasons allow your substantiating such a strong accusation?
    As Professor Fernández Sola argued, there are some crucial elements missing in your report, namely the enactment of the “Leyes de Transitoriedad” and “Ley del Referendum” on September 6th and 7th. As renowned legal scholars, how would you describe the legislative process that lead to the formal promulgation of the above mentioned laws? Would you deem those laws as compatible with the Estatut de Catalunya (not to mention the Spanish Constitution)? In your final remarks you refer to a political conflict between Spain and Cataluña in need of a political, and not criminal, solution. Would not it be fair to say that there is a conflict among Catalonians? Would you be so kind to give the reader some hint as to what the “political” solution should be in your opinion, and to what extent that solution would satisfy the legitimate aspirations of the not-in-favour-of-independence majority of Catalonians? Thank you.
    Last but not least: John says that by stating “…you can go fuck yourself”, “someone can think that’s an insult and therefore not acceptable in a serious discussion”. Your are only partially right, John. It is not “someone” who might find your comment as unacceptably denigratory, but “anyone” who aims at having a civilized conversation. I think you owe an apology to Professor Fernández Sola.

  7. Antoni

    Dear (If I may) Prof. De Lora, it really a pleasure to have your comment in this forum. I agree that some elements need to be explained but there is a limitation of words that we overcome in the entry. Our intention was to focus on the EAW and therefore I do not consider as crucial the elements that we did not include. I propose that we organise a workshop/conference with Professors Queralt, Aznar and Fernández to debate these issues. I have also restrained my answers otherwise I would refute the statement: “the Catalan government implemented the unconstitutional referendum, unilaterally declared independence and incited violence against the police and Guardia Civil, riots, vandalism and siege of thousands of people.”

    Our claim that political prisoners do suffer from “undignified and inhumane conditions” in prison as you mention is because of the distance from Barcelona to Madrid. The dispersion of prisoners was (as you perfectly know) approved by Socialist ministers Enrique Mugica and Antonio Asuncion to struggle against ETA. Now, this treatment is unjustified and breaks the same spirit of the polemic legislative measure (according to art. 25 Spanish Constitution, arts. 12.1 and 51 LOPJ). I also refer the report Bergeron of July 6, 2017, on prison systems and conditions (2015/2062(INI) Committee on Civil Liberties, Justice and Home Affairs. Rapporteur: Joëlle Bergeron

    The distancing it also contributes to the political discourse that tries to place terrorism and secessionism at the same level.

    I would also add as a ground for sustaining the claim the fact, that one of the political prisoners, Joaquin Forn, developed tuberculosis in the Prison of Estremera. Forn, who resigned of his Parliamentarian office and his political activity, stills in prison, in a pre-trial situation.

    Thanks again for your comment.

  8. Dear colleagues:

    I could not agree more to the sound arguments that Professors Fernández Sola and De Lora have appropriately stated above. On the contrary, Antoni Abad’s last post looks quite misterious to me. With all due respect: Do you mean that Spain is torturing Mr. Forn and some other Catalan politicians, who have seriously broken the law, because they are not allocated where they would love best, say, close to the seaside, e.g. Costa Brava?
    With regards to Mr. Forn’s sickness. Prof. Amat is quite ambiguous when saying that Mr. Forn has “developed tuberculosis in prison”. Mr. Forn’s blood analysis has shown that he has been in touch with the TB bacterium at some moment of his life. This does not entail that he is sick. This fact does not entail either, that he has been infected in prison. May I remind you that according to WHO, one in three people in the world is infected with dormant Mycobacterium tuberculosis, the TB bacterium? What it is quite clear to me is that Mr. Forn is too overwieghted. Obviously, the right thing for him to do would be dieting during these days there. After all, Spain has one of the best health systems in the world. He is good hands.

  9. Ángel J. Sánchez Navarro

    Unfortunately, this is all about the rule of law and the limits of power. The former Catalonian rulers just ignored the law (the Catalan and the Spanish) which they were supposed to respect, on the basis that they won the regional elections. But under the rule of law principle, any citizen (holding public power or not, winning elections or not) has to respect the law, and judges are to decide on difficult cases. After that, the debate on the legal system is permanent in open societies, as the Spanish one. All our world is based on the principle that Mr. Puigdemont, his government, his party and his supporters have consciously and expressly ignored… I suppose that if they can do that, someone shoud define who is to respect the law from now on.

  10. Alphonse Redoutable

    Another gross inaccuracy in the piece: It says repetedly that the supreme court issued the first EAW. That’s absolutely and categorically false, and intent on sowing confusion on due process in the Spanish justice system. The authors should know better, come clean with their audience, and stop unfairly decrying the Spanish justice system. Shame on you.

  11. AGM

    Dear Professors Abat i Ninet and Queralt Jimenez,

    Following the editor’s invitation to submit comments on this post, I would like to express my strong disagreement with the arguments you express therein.

    I have found four statements particularly striking.

    The first is that ‘It would be imprudent to predict a result but this decision and the forthcoming judgments in Belgium, Scotland and Switzerland can prompt a recognition within the Spanish government that the solution to the Spanish-Catalan conflict is political and not criminal’. Let me say that this statement does reach a conclusion on the basis of a purely speculative assessment of the referred decisions’ potential content. In this respect, it is indeed an ‘imprudent’ statement.

    The second one is that ‘The pre-trail (sic) imprisonment of these political leaders and grassroots activists in undignified and inhumane conditions is unjustified in the view of many’.

    My question is: who are these ‘many’ voices and on which legal and factual basis do they make such a finding? Moreover, why are 175 days, or 200, or one year of pre-trial detention per se arbitrary? Let me recall that, according to the European Court of Human Rights, ‘the question whether or not a period of detention is reasonable cannot be assessed in the abstract but must be assessed in each case according to its special features, there is no fixed time-frame applicable to each case’ (see inter alia, McKay v. the United Kingdom [GC], §§ 41-45). Why is the case of Catalan leaders so different ‘in the abstract’ that it can be assessed summarily without a proper analysis of the case file?

    Third striking statement: ‘on 5 April, the High Court of Regional Land of Slesvig-Holstein decided to release on bail the Catalan President and not to grant the extradition for the charges of rebellion (the worst charge). The fears that had motivated the withdrawal of the first EAW increased’.

    My question is: which ‘fears’ are those? The ‘fears’ that Mr. Puigdemont and ors. will not receive a fair trial in Spain? If so, how may the decision of a German Court not to surrender a person due to the absence of double incrimination trigger such fears, all the more since the German Judge expressly rejected the defence’s argument that Spain is prosecuting him for political reasons?

    Fourth striking statement: ‘Today there is real anxiety that the Spanish request will not overcome the screening process of democratic justices on matters of rebellion, sedition and misappropriation. To this we might add serious concerns with breach legal and procedural guarantees for the prosecuted (such as the assignment of the case to a judge predetermined by law)’.

    I would reiterate here the abovementioned questions, plus the following: if the situation of the Spanish judiciary is as serious as the authors describe, why is it that there is no report/decision/judgment/pilot judgment from any human rights body condemning Spain for the serious flaws of its judicial system? Why is it that no European state or institution has questioned Spain’s membership of the EU and the Council of Europe? Why is it that its judges and prosecutors participate on a daily basis in EU organs for judicial co-operation? And last but not least, how is it possible that the prosecuting court was only a few years ago a model for the fight against impunity when it prosecuted foreign politicians under the principle of universal jurisdiction but has suddenly become a ‘political’ body without any credibility when it prosecutes Catalan leaders for their unilateral attempt to disintegrate the Spanish constitutional order?

    The only authority pro-independence voices are able to refer to in support of their arguments is the decision of the Human Rights Committee to order provisional measures in relation to Mr. Jordi Sánchez. Indeed, this is something, but it is nothing more (and nothing else) than a provisional measures order, made by a quasi-judicial organ in relation to Mr. Sánchez’ political rights (as opposed to his fair trial rights). Pro-independence forces’ over-reliance on such a decision shows how desperate they are in their search for an international legal basis to support their secessionist claims. In my opinion, Professors Abat i Ninet and Queralt Jimenez, your ‘purportedly-academic-but-based-on-unverified-accusations’ analysis does not add anything to this sad scenario.

    Kind regards,

    AGM.

    P.s.: I agree that driving may be dangerous, but to base a legal claim on the fact that the journey from Madrid to Barcelona ‘involv[es] a high risk of accidents’ is simply not serious. I would recommend the authors to post this argument on TripAdvisor and wait for reactions.

  12. Antoni

    Dear Prof. Sánchez, I agree that the rule of law and the limits of power are quintessential elements of our constitutional democracies and everybody has to respect the rule of law, also the State institutions and more concretely Magistrates. I am sure that you will agree with me that proportionality and democracy are also core elements of our system. Thanks for your comment that opens a huge and very interesting debate on the concept and elements of the rule of law in constitutional democracies. Professor García, honestly when talking about this serious issue your arguments on overweight and Costa Brava seems inappropriate. I did not intend to be ambiguous on the contrary. I agree with you that Spain has one of the best health systems in the world that need to prevent that an innocent until there is a firm sentence to the contrary and other inmates become infected.

    • Alphonse Redoutable

      Are you suggesting preventative prison for Junqueras et al is not ‘proportionate’? The Supreme Court pronouncement can not be clearer on the grounds for it. Are you denying it and on what grounds? Do you possess the statistics for preventative prison in Spain and the typical grounds for it? Can you please relate why you think the Catalan politicians accused of serious crimes against their people should have any better treatment than the others?

  13. antoni abat i ninet

    I beg your pardon but I do not answer entries that are anonymous. Have a nice day.

  14. Dr. Francisco Pascual-Vives Universidad de Alcalá Visiting Scholar (American University – Washington College of Law)

    Dear colleagues:

    Just a few lines to discuss part of the reply given by Prof. Abat to Prof. Fernández, in particular, the part in which he asserts that “the principle of national unity is recognized by international law, as it is [sic] the principle of self-determination (also by Spain) and that in case of collision what prevails is the second one (See. Advisory opinion on Kosovo)”.

    After reading the “Advisory Opinion on Kosovo” rendered by the International Court of Justice, I could not find such a statement anywhere in the text, nor can I ascertain any arguments supporting this view in the reasoning of the Court.

    The fact is that the Court did not delve into this issue at all, since the “Court is not required by the question it has been asked to take a position on whether international law conferred a positive entitlement on Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers an entitlement on entities situated within a State unilaterally to break away from it. Indeed, it is entirely possible for a particular act — such as a unilateral declaration of independence — not to be in violation of international law without necessarily constituting the exercise of a right conferred by it. The Court has been asked for an opinion on the first point, not the second” (see Advisory Opinion on Kosovo, para. 56).

    The United Nations General Assembly put forward a question concerning the accordance with international law of the declaration of independence made by the provisional institutions of self-government of Kosovo. As a result of the wide margin of discretion when exercising its advisory jurisdiction, the Court interpreted this question narrowly. In doing so, the Court missed (or intentionally avoided to deal with) an excellent opportunity to explain how these two fundamental principles of public international law (territorial integrity and self-determination) interact in contemporary international law vis-á-vis with the institutional law of the United Nations (Kosovo was under the international administration of the United Nations when the declaration of independence was issued). As one of the judges lamented in his Separate opinion “it is regrettable (…) that the Court decided not to address the first point, particularly in the sense of assessing the possible existence of a right to self-determination in the specific situation of Kosovo” (see Judge Yusuf’s Separate Opinion on Kosovo, para. 4).

    It is true that the Court concluded that the adoption of the unilateral declaration of independence did not violate any applicable rule of international law, because “general international law contains no applicable prohibition of declarations of independence” (see Advisory Opinion on Kosovo, para. 84). Following the Court’s reasoning, one must conclude that declarations of independence are not regulated under general international law, and are only a matter of domestic law. International law deals with their effects ex post facto, only if as a result of such declarations a new State is recognized (principle of effectiveness).

    Notwithstanding the self-imposed legal short-sightedness of the Court in the Advisory Opinion on Kosovo, in particular with regard to the scope and application of the principles of territorial integrity and self-determination, it is very interesting to study (at least from the academic perspective) the position of the States that participated in the written and oral proceedings before the International Court of Justice in that Advisory opinion, in particular the position of those supporting the legality of the declaration of independence of Kosovo. A careful analysis of their statements reveals that even these States, while accepting unplanned secession under very exceptional circumstances (in cases of serious denial of internal self-determination and the human rights of the population, along with the existence of no other better recourse to settle the dispute), did not support a general right to secession and independence by parts of a State under contemporary international law (see, in particular, the written comments of the United Kingdom and the oral statements of the United States and France).

    To sum up, from the perspective of public international law, and following contemporary State practice, it is incorrect to conclude that the Advisory Opinion on Kosovo recognized that the principle of self-determination prevails over the principle of territorial integrity on a general basis.

    Two final notes: on 12-13 April 2018 the Spanish Association of Professors in International Law and International Relations (AEPDIRI, in Spanish) held an academic seminar entitled “Secession of States and self-determination of peoples in contemporary international law” at the University of Alcalá, the results of which will be published in English language in due course. Finally, for those interested in the topic I suggest to read the “Statement on the lack of foundation on International Law of the independence referendum that has been convened in Catalonia”, issued by a group of members of the AEPDIRI on 19 September 2017 (available at https://voicesfromspain.com/2017/09/27/statement-on-the-lack-of-foundation-on-international-law-of-the-independence-referendum-been-convened-in-catalonia/).

  15. Antoni

    Professor Pascual-Vives, thanks for your correct remark on the conclusions of the Advisory Opinion on Kosovo. Again, our post was first to focus on the EAW but of course many other legal and political aspects emerged. You state: “To sum up, from the perspective of public international law, and following contemporary State practice, it is incorrect to conclude that the Advisory Opinion on Kosovo recognized that the principle of self-determination prevails over the principle of territorial integrity on a general basis.” This is true and I acknowledge that. Let me, simply for the sake of the conversation to state that this is currently an open debate, self-determination can be a remedial tool and it has been linked with the principle of democracy and I´m trying to link it with the principle of human dignity in a collective sense.

    The ICJ in its advisory opinion on Kosovo expressly limits the scope of the principle of territorial integrity to the sphere of relations between states and neither there is a prevalence of territorial integrity over self-determination. As I said previously, this interesting debate deserves more than a blog response, as many of the responses and questions that some of the colleagues are posing.

    Thanks again for your remark and I will be delighted to read the link that you provide. Prof. Vives-Pascual I do not know if you can read Catalan but maybe the publication that I co-authored with Princeton Professor Carles Boix and Human Rights Attorney Gil de Matamala on the advisory opinion on Kosovo is of your interest:
    https://www.amazon.es/porta-g%C3%A0bia-Tribunal-Internacional-Just%C3%ADcia/dp/8493841560

    Best Regards

    Antoni

  16. Simon Drugda

    Dear Colleagues,

    To those of you based or visiting in the UK, you might be interested to attend a talk at the Oxford Centre for Socio-Legal Studies on “https://www.w3schools.com/html/tryit.asp?filename=tryhtml_links_w3schools,” to be held on May 10.

    Kind regards,
    Simon Drugda

  17. Simon Drugda

    Dear Colleagues,

    To those of you based or visiting in the UK, you might be interested to attend a talk at the Oxford Centre for Socio-Legal Studies on “CATALONIA: A Constitutional Debate,” to be held on May 10.

    There was a mistake in the code in my previous comment. I apologise for the inconvenience.

    Kind regards,
    Simon Drugda

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