The Emergence of a Democratic Right to self-determination in Europe

Feb 16 2017

To determine their political status, peoples have chosen to involve their populations in a democratic process culminating in a referendum relating
to such status, and notably that of a sovereign and independent State.

Quebec has twice chosen to take this route. Scotland followed a similar path, which led to the organisation of the referendum of 18 September 2014. Catalonia also attempted to choose such a route. While this approach has been the preferred option in recent exercices of the right to self-determination, a new approach of a democratic nature is also emerging as an alternative.
To implement its right of self-determination, and achieve national independence or greater autonomy, a people can rely on its constituent power and initiate a process aiming to give the people their own fundamental law. This is the avenue that the Catalan government and parliament appear to have chosen, adopting a roadmap that focuses around a constituent process and the drafting of a Constitution for an independent Catalonia.

There are many reasons that might favor an initiative to draft a basic law in the exercise of the right of self-determination. They relate to the necessity of defining one people’s own constitutional identity, but also of resolving the constitutional stalemate that often explains demands for independence and autonomy. In describing the values on which a political community
rests and which guide institutions in the governance of the State, a constitution may become an instrument that gives a people an identity, both among citizens themselves and in the international community. A constitution is, first and foremost, a document aiming to establish the basis on which the life of a nation rests. It organises public life around a founding
text that can become a tool for which a people desirous of taking part in the democratic life of the nation can take ownership.

The exercise of constituent power can lead a people to draft a basic law which implies increased autonomy and the need to reform the constitution of the State to which the people belong. But it may also generate a confrontation between two constitutional orders and contribute to demonstrating that only additional autonomy or national independence will allow the people to fully express its constitutional identity. The adoption of a constitution and its approval by the people in a referendum as is envisaged in Catalonia can thus become a valid exercise of the right of self-determination. This approval could compel a state to fulfil its obligation to negotiate in response to the exercice by a people of their right to choose expressed in its first constitution.

The results of the referendum held in United Kingdom on its future relationship with the European Union show that a majority of voters (51,9%) favored the “Brexit” option and expressed their will to leave the EU. This act of British self-determination clashed with the wishes of the peoples of Scotland (62%) as well as of Northern Ireland (56%) who voted in favor of the option of remaining in the EU.

After Brexit, and because of their own acts of self-determination, the First Minister of Scotland Nicola Sturgeon has suggested that a second referendum on independence is highly likely and Northern Ireland’s First Minister Martin McGuinness called for a referendum on a united Ireland.260 This suggests that the democratic right of self-determination of peoples, which has emerged
is well and alive. And to use Ernest Renan’s brilliant metaphor, that it is a “plébiscite de tous les jours”.

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