Comparing constitutional adjudication of self-determination claims

AuthorMarkku Suksi,Xabier Arzoz
Date01 August 2018
Published date01 August 2018
Subject MatterArticles
Comparing constitutional
adjudication of self-
determination claims
Xabier Arzoz* and Markku Suksi**
The judicial resolution of claims of self-determination by national courts is still exceptional, but
rulings seem to be increasing. This paper aims to compare the adjudication of claims of self-
determination by constitutional or supreme courts. It will look at three judicial pronouncements
from three jurisdictions: the Judgment of the Constitutional Court of the Russian Federation
concerning the sovereignty of Tatarstan (1992), the Opinion of the Canadian Supreme Court
concerning the secession of Quebec (1998), and the Judgment of the Spanish Constitutional
Court concerning the declaration of sovereignty of the Parliament of Catalonia (2014). The paper
will draw parallels in the way constitutional or supreme courts have tackled the tension between
democracy and constitutionalism.
Constitutional adjudicatio n, self-determination, sover eignty, referendums, Quebec, C atalonia,
1. Introduction
International relations have seen a number of both historical and more recent claims of self-
determination, from Kurdistan, Palestine, and West Sahara to Kosovo and Scotland. However,
the legal analysis of claims of self-determination that is, through judicial or quasi-judicial bodies
is relatively rare, and on those rare occasions it does occur, decisions or opinions are mostly
handed down by international judicial or advisory bodies.
* University of the Basque Country, Spain
** A
˚bo Akademi, Finland
Corresponding author:
Xabier Arzoz, University of the Basque Country, Barrio Sarriena, s/n, 48940 Leioa, Spain.
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(4) 452–475
ªThe Author(s) 2018
Article reuse guidelines:
DOI: 10.1177/1023263X18796980
As early as 1920, the Council of the League of the Nations entrusted an ad hoc International
Committee of Jurists with the task of giving an advisory opinion on the legal aspects of the Åland
Islands question, a question in which the principle of self-determination of peoples with a seces-
sionist objective was raised.
After the Second World War, the acknowledgment of the principle of self-determination was
enhanced at the international law level: both the Charter of the United Nations (UN; Article 1(2)
and 55) and the two 1966 UN Covenants on Civil and Political Rights and on Economic, Social
and Cultural Rights refer to the self-determination of peoples. In particular, according to Article 1
common to the two aforementioned UN Covenants, all peoples have the right to self-
determination. The right to self-determination was no longer limited to the exercise of self-
determination in colonial situations as prior to 1966; all peoples had this right. The difficulty,
however, was to know what exactly constituted a people. Thus in 1995, the International Court of
Justice accepted that the right of peoples to self-determination, as it evolved from the Charter and
from United Nations practice, has an erga omnes characterand is one of the essential principles
of contemporary international law.
Nevertheless, the sound status of self-determination as a right under international law has not
sparked an increase in the international resolution of self-determinations claims through judicial or
quasi-judicial bodies. On the one hand, the content of the right to self-determination remains
insufficiently determinate, at best alleged. On the other hand, it is a collective right that can only
be exercised collectively and its legal enforcement and judicial guarantee at the international level
has not advanced as much as that of other international human rights. The lack of international
protection and guarantee mechanisms is an obstacle to further development of the content, scope
and modes of implementation of the right to self-determination.
Naturally, the international community has been involved in many stat e-creating processes
which implied the exercise of the right to self-determination.
Nonetheless, this right is often
regarded as one that escapes pronouncements by national and international courts.
on occasion the issue has also reached international bodies. In 1995, the African Commission
of Human and PeoplesRights adjudicated in the case of Katangese PeoplesCongress v. Zaire.
held on the basis of Article 20 of the African Charter on Human Rights and PeoplesRights
that no such violation of human rights had taken place in relation to Katanga that it would justify,
under the right to self-determination, disturbing the territorial integrity and sovereignty of Zaire. In
2009, in the Kevin Mgwanga Gunme v. Cameroon, the African Commission again confirmed said
1. Official Journal of the League of Nations, Special Supplement No. 3, October 1920, p. 6, 12, 14. Later, a separate
Commission of Rapporteurs was appointed to deal with, inter alia, the issue of whether a minority has the right to
separate itself from a state. See The Aaland Island Question: Report Submitted to the Council of the League of Nations
by the Commission of Rapporteurs 16 April 1921, League of Nations Council Doc B.7 21/68/106.
2. East Timor (Portugal v. Australia), Judgment, I.C.J. Reports 1995, p. 90, para. 29.
3. See the case of Gillot v. France, UN Human Rights Committee, Comm. 932/2000, UN Doc. CCPR/C/75/D/932/2000,
where the HRC did not find a breach of Article 25 of the UN Covenant on Civil and Political Rights, although a
residence requirement of up to 20 years had been set under the law as a qualification for the right to vote in an
independence referendum in New Caledonia, because the aim of the law was to facilitate the exercise of self-
determination of the aboriginal Kanak population.
4. M. Suksi, Keeping the Lid on the Secession Kettle a Review of Legal Interpretations Concerning Claims of Self-
Determination by Minority Populations,12International Journal on Minority and Group Rights (2005), p. 205.
5. Katangese PeoplesCongress v. Zaire, African Comm. Hum. & PeoplesRights, Comm. No. 75/92. On this case see
ibid., p. 209210.
Arzoz and Suksi 453

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