1. Self-Determination as an expression of Human Dignity
Course title
Self-Determination as an expression of Human Dignity
El Dret a l´Autodeterminació al Segle XXI.
Professor Antoni Abat Ninet
Centre for Comparative and European Constitutional Studies
Faculty of Law
University of Copenhagen
Centre de Cultura Contemporània de Barcelona
Barcelona, 13 i 14 de Juliol 2017
14th July 2017

2. Self-Determination as an expression of Human Dignity
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Self-Determination as an expression of Human Dignity
Epistemological reconceptualization of the Right to Self- Determination
Evolution – Postcolonial Right? Justa Causa? Democratic Right – Human Dignity
Individual and Collective Rights debate- Self-determination / Human Dignity
Legal Nature - A customary norm with a Jus Cogens nature, an absolute/limited Human Right, a Legal and Political Principle, an Aspirational Concept)
The Role of Constitutions in Self-Determination – Constitution says no.
14th July 2017

3. Self-Determination as an expression of Human Dignity
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Self-Determination as an expression of Human Dignity
Evolution of the right to Self-Determination Contested/ Programmatic / Aspirational / Illusionary –Right Objective elements (human right, treaties ratified by Constitutional Democracies, Communitarian Acquis, part of the international and national legal body) The limitation of the applicability of the right to colonial situations - it is, has been and will be untruth. There is no mention in the treaties limiting the right to colonial situations.
14th July 2017

4. Self-Determination as an expression of Human Dignity
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Self-Determination as an expression of Human Dignity
The way to limit the “Threaten of Self-Determination” of non colonial situations– different fronts:
a) Inapplicability and lack of enforcement to eliminate the rational legal normativity of law. Seems to force to a De facto but no de Iure enforcement.
Source of conflict that precisely wanted to avoid Woodrow Wilson and the codification and recognition of self-determination as a human right.
Slovenia, Lithuania, Croatia or Ukraine were colonies? – also playing with the indeterminacy of the term “Colony”.
Are Quebec and Scotland colonies? And "is Catalonia a colony? – Kymlicka differentiation of these sub-state entities and Native Americans Nations.
b) denial of its normativity and lack of legal hierarchy– Self-determination is a customary law that cannot attempt against national integrity (ICJ on Kosovo)

5. Self-Determination as an expression of Human Dignity
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Self-Determination as an expression of Human Dignity
  Justa Causa
It has been used to justify the use of war, intervention, force.
Polemos dikaios und bellum iustum: Versuch einer Ideengeschichte Silvia Clavadetscher - Thürlemann
Cicero (iusta causa) – related to war
Natural law listed the rights whose violation legitimatizes the launching of a war. Hugo Grotius – De Jure belli ac Pacis.
Also - Thomas Aquinas - Summa Theologiae - Justa causa (an - objective – good reason)
Idea- analogously and in Bonam Partem can justify the exercise of the right of self - determination.
Article 2 TEU (Human Dignity) - Article 7 TEU
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6. Self-Determination as an expression of Human Dignity
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Self-Determination as an expression of Human Dignity
Human Dignity Self-determination as a remedy to protect Human Dignity The question whether Human Dignity applies to the protection of groups has not yet been decided. Human Dignity is a theological term in origin – Legalized mainly after in Second World War – after the holocaust. Human Dignity appears explicitly or implicitly in State constitutions worldwide. – German constitutional identity- eternal constitutional clause Also in international acquis: the preamble of the Charter of the UN, The Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
14th July 2017

7. Self-Determination as an expression of Human Dignity
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Self-Determination as an expression of Human Dignity
Contested elements of this on-work theory
Individual to group rights (Waldron et al. – The Dignity of Groups)
What triggers the self-determination justification in terms of Human Dignity:
German BverfG – very restrictive vs. Group Humiliation – Margalit / Statman / Other Constitutional Jurisprudence.
- Who decides that dignity is breached and is time to apply self-determination?
- Time limitation to apply self-determination to protect Human Dignity
The legal comes after massive aggressions were groups were targets – the protection cannot be reduced to individuals.
Dignity is a social value
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8. Self-Determination as an expression of Human Dignity
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Self-Determination as an expression of Human Dignity
Self-determination – Paul Ricoeur – Derrida - Benveniste Ipséité: l’identité ipse (l’identité comme fait d’être soi-même à travers le temps) – Being Oneself Mêmeté: l’identité idem (le fait de rester le même) – to be the same as others élément volitionnel: Referendum – Democratic Element Human Dignity - Aharon Barak / Morris / Gerwith / Donelly Bioethics, LGTB, Euthanasia Group rights
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9. Enhedens navn
From Individual
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10. Enhedens navn
To Dignity of Groups
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11. Self-Determination as an expression of Human Dignity
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Self-Determination as an expression of Human Dignity
A legal Nature under dispute
A customary norm with a Ius Cogens nature;
An absolute Human Right;
A limited Human Right;
A Legal and Political Principle;
An Aspirational Concept;
A legal paradox: is not a constitution the highest legal expression of a nation’s self-determination ? (Sieyès, Condorcet, American Founding Fathers). How can deny a constitution its raison d'être to others?
14th July 2017

12. Self-Determination as an expression of Human Dignity
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Self-Determination as an expression of Human Dignity
The democratic elements of a self-determination theory
Justa Causa
Human Dignity
Self-determination
Democracy
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13. Self-Determination as an expression of Human Dignity
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Self-Determination as an expression of Human Dignity
The role of constitutions on self-determination is, in the best case-scenario, relative. The recognition of self-determination it is a political decision. (Polis) International pressure to constitutional recognition. The Vienna Convention of 1978 implications – the Constitution of Ethiopia and other modern constitutional experiences. Practical experience shows that constitutionalization or constitutional silence of the right to self-determination is not decisive for its exercise. Example of Yugoslavia and the USSR. Neither the territorial nature of the state (federal, mixed or decentralized) because, the acceptance of the self-determination demand it is more linked to the maturity and democratic quality of the state.
14th July 2017

14. Self-Determination as an expression of Human Dignity
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Self-Determination as an expression of Human Dignity
Examples: Unitary states that allow the right of self-determination (selective). France (Nouema agreement for New Caledonia - amending the constitution. Denmark (for Greenland and the Faroe Islands) - against the constitution. The Netherlands (Aruba, Curaçao and Sint Maarten - 4 Constituent countries) on the constitution - Papua New Guinea and Bougainville, Liechtenstein; municipalities. Moldova - Gagaúsia (external self-determination).
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15. Spain´s response to the Catalan demand of referendum?
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Spain´s response to the Catalan demand of referendum?
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