Communication addresed to the Committee on Economic, Social and Cultural Rights (CESCR)

1. The authors

The authors of the communication are members of civil society, citizens of the European Union of Catalan nationality. They are victims of violations of articles of the International Covenant on Economic, Social and Cultural Rights (ICESCR). In particular, they invoke the right of self-determination of all peoples (Art. 1). The Catalan population objectively and subjectively meets the criteria of the “Kirby definition” ¹ of peoples and possesses the right to freely determine their political status and to freely pursue thier economic, social and cultural development, as well as the right not to be victims of spoliation and plunder.

Bearing in mind that the right of self-determination is not self-executing and that the Kingdom of Spain has used and continues to use force to prevent the Catalan people from exercising their rights under the ICESCR and under the Spanish Constitutionj, the authors petition the Committee to register this case, affirming that they are victims of multiple violations of the ICESCR, and in this document will substantiate the systemic discrimination, structural violence, persecution, prosecution and arbitrary detention to which they have been and are being subjected to because of their efforts, by peaceful means, to assert their rights and their identity.

They further assert that they have no effective recourse in the domestic courts, since on matters of self-determination and minority rights Spanish tribunals have never wavered from their denial of the right of self-determination and displayed a serious lack of independence (see 3. below).

The authors are represented by Professor Alfred-Maurice de Zayas, a former Independent Expert of the United Nations Human Rights Council and former Secretary of the UN Human Rights Committee.

2. Object and purpose of the communication

The present communication is submitted to the Committee with the request that it establish the existence of serious violations of ICESCR and other international norms, in particular, Art. 1 (points 1, 2 and 3) and Art. 2(2) of the Covenant to the detriment of the European Union citizens of Catalan nationality. The discriminatory law and practice of Spanish authorities vis-à-vis the Catalan people also entail direct and indirect violations of articles 6, 8, 10, 11, 12, 13, 14 and 15 of the ICESCR.

The authors petition the Committee to make specific recommendations to the State party with a view to stopping the ongoing violations of ICESC and providing adequate remedies to the victims.

3. Further requests

While the authors are aware that the Committee’s competence focuses on the progressive implementation of the rights laid down in ICESCR, the authors consider that not only the Kingdom of Spain, but also all EU members states that are parties to the ICESCR and to its Optional Protocol should be encouraged to take measures consistent with their obligations under ICESCR and refrain from any action that adversely impacts the enjoyment of ICESC rights by the people of Catalonia.  is also requested to instruct the EU member states and institutions, and in particular the EU Concretely, EU institutions, and in particular the EU Commision, should be urged to put an immediate end to the discrimination in economic, social and fiscal matters, and cease interfering with the linguistic and cultural rights of the Catalan population.

The EU Members States have transferred powers and competences to the Commission and the CJEU, which have the responsibility to actively defend and protect the rights of European citizens against violations of the human rights enshrined in the ICESCR (and embedded in the Treaty on European Union), including the right not to be discriminated against and the right to exercise self-determination (arts. 1 and 2 of the ICESCR).

In the case of European citizens of Catalan nationality, the responsibility of the organs and bodies of the EU is especially relevant, since it constitutes the only effective remedy against the systematic direct and indirect discrimination they suffer, in the political, economic, social and cultural spheres, as a national minority forced to form part of the Spanish State 2.

Furthermore, the Committee is requested to recognize the legitimacy of the actions of civil objection and peaceful insubordination, including in the economic, social, fiscal, cultural and linguistic fields, carried out or that may be carried out by members of civil society of Catalan nationality to protest against the current status quo in the EU which aims to relegate Catalonia indefinitely to the status of a colony of Spain and to submit a request to the Secretary General of the United Nations to include the situation of Catalonia and the legitimate claim of the members of the population of Catalan nationality in the list of decolonization territories dealt with by the Committee of 24.

4. Exhaustion of domestic remedies

According to the established jurisprudence of numerous human rights including the UN Human Rights Committee (see Jakob Möller/Alfred de Zayas, United Nations Human Rights Committee Case Law, N.P.Engel 2009, Chapter 3), the Committee Against Torture, and the Committee on the Elimination of all Forms of Racial Discrimination, only those domestic remedies must be exhausted that are both “available and effective”, and whose application is not unreasonably prolonged. (case 4/1977, William Torres Ramirez v. Uruguay, 359/1989 and 385/1989 Ballantyne et al and McIntyre v. Canada, 89/1981 Paavo Muhonen v. Finland; 309/1988, Orihuela Valenzuela v. Peru, etc.)CERD also confirms this rule (e.g. L.R. et al. v Slovak Republic, CERD/C/66/D/31/2003 (2005), para. 6.1; Gilberg v. Germany, CCPR/C/87/D/1403/2005, para. 6.5).

Also with respect to inter-State complaints, it is assumed that the non-exhaustion of domestic remedies must be raised as an objection by the Respondent State. In particular in case of a “generalized policy and practice” expert Committees expressly provide for an exception to the domestic remedies rule. In the Admissibility decision in Palestine v. Israel, CERD further elaborated on the exception to Art. 11 (3) CERD in case of a “generalized policy and practice”. When there is an “administrative practice” of rejecting any claim e.g. related to self-determination, it is evident that victims are deprived of available and effective remedies. This is the case with the Catalan people.

Even the International Court of Justice has similarly found an exception to the domestic remedies rules with regard to the procedure initiated under Art. 22 CERD (Ukraine v. Russian Federation, Judgement (Preliminary Objections, para. 130). ICJ’s admissibility decision in Palestine v. Israel turned on the question of proof with regard to the existence of such a “generalized policy and practice”.

Consequently, in accordance with the provisions of the Optional Protocol to the ICESCR in relation to the non-existence of effective remedies, taking into account the present situation of «decapitation» of the government and parliament of Catalonia and the ongoing repression, coercion, imprisonment and blackmail that the Catalan political leaders and activists have suffered and continue to suffer, perpetrated with the complicity of the Spanish courts that continue to treat peaceful demonstrators as “terrorists”, and taking into account the lack of standing of civil society members of the Catalan minority to initiate proceedings before the Court of Justice of the European Union to complain about the discrimination, the spoliation and the repression to which they are subjected, the authors respectfully request the Committee to consider that this communication raises a serious and systemic problem of general importance, given that it concerns and affects the whole civil society of European Union citizens of Catalan nationality.

5. Explanation

The outright refusal of the central government in Madrid to the demand of the majority of the population of Catalonia to allow the exercise of freedom of expression in the form of a popular referendum, the refusal to put an end to the colonial status and the economic spoliation and discrimination was one of the main factors in the rise of the civil society movement that led to the organization of the independence referendum on October 1, 2017. The brutal repression by the Spanish police and the Madrid-controlled courts and the intervention of the Spanish central state (invoking Art. 155 of the Spanish Constitution) de facto dismantled Catalan self-government. Political leaders were arrested and convicted of treason, rebellion and similar spurious charges. Thousands of criminal and administrative cases were opened against political leaders and pro-independence activists (many of them are still pending).

These figures and the images of the repression ³ attest to the magnitude of the aggression perpetrated by the Spanish state against the EU citizens of Catalan nationality, unprecedented in an EU member state. The political leadership of the Catalans was to be dismantled («decapitated», as stated the then vice-president of the Spanish government).

The current situation, characterized by repression, intimidation and also the betrayal by the main leaders of the pro-independence political parties and parliamentarians, will continue until a new political leadership can emerge in Catalonia. Therefore, action by civil society organizations, acting as defenders of the human rights of EU citizens of Catalan nationality, is urgent and imperative, to counter the discrimination and continued economic and social impoverishment of Catalan society and to put an end to the linguistic and cultural oppression by the Spanish state with the acquiescence and the complicity of the EU institutions and bodies.

6. The historical background

The Catalan population of Catalonia, numbering more than seven million human beings, are not a mere “minority” living in the Northeast of the Kingdom of Spain, but constitute a “people” with a distinct identity, culture and language, and should be considered as a “people” for purposes of article 1 of the ICESCR and within the meaning of the “Kirby definition” of a “people” ⁴ . The Catalan people possess the objective and subjective characteristics of a “people” and because of this very reason they and their leaders have been subjected to oppression, discrimination and in some cases criminal prosecution for the mere exercise of the right of freedom of opinion, expression and peaceful association ⁵ .

Catalonia, and by extension the Catalan Countries (all territories where the population has Catalan as its own language ⁶) and Castile (sometimes erroneously equated with Spain) have a different historical origin. While the Kingdom of León and later Castile were the product of the reconquest carried out by the Visigoths in the north of the Iberian Peninsula, Catalonia, which later became the Catalan-Aragonese Confederation, was a creation of Charlemagne and the Franks. Throughout the Middle Ages, this distinction was maintained and generated a great differentiation between institutions, the legal and judicial system, the state and public administration and, above all, a clear division of the languages used by the inhabitants of the respective territories. The attacks on the economic and cultural rights of the Catalans date back to the accession of the House of Habsburg to the throne of both the Kingdom of Castile and the Catalan-Aragonese Confederation, but took on a genocidal character with the accession of the House of Bourbon at the end of the War of the Spanish Succession, with the imposition on Spain of a foreign monarch, Philippe d’Anjou, born in Versaillles, grandson of Louis XIV, an obsessive and violent ruler. With the Treaty of Utrecht of 1713, Catalonia after being betrayed by its allies (England, Austria and Holland) effectively became a colony of Spain, or as the Spanish say an «assimilated territory» through brutal military occupation, repression and massacres that today would qualify as genocide. The repression, military occupation and colonial rule of the Catalan territories has continued since the promulgation in 1718 of the «Nueva Planta Decree» (referring to the new organisation of the judicial system in the Catalan Countries which became totally subordinate to Castile), in order to prohibit and erradicate the Catalan language, culture and institutions of government.

During the last four centuries, there have been several attempts to re-establish Catalonia’s political independence and/or its detachment from the Castilian centralist regime, namely the Catalan Republic of Claris in 1641, the Catalan Republic of Macià in 1931, the Catalan Republic of Companys in 1934, as well as the incorporation of Catalonia into France, as a «former territory of the Franks», by Napoleon in 1808). All Catalan leaders who have tried to achieve independence have been executed, assassinated, imprisoned, demoted or disqualified by Spanish courts or have had to go into exile. Catalonia has been held in subjugation and annexed to the Spanish monarchy as a colonial territory by military force and by the use of threat and coercion since 1640. Military campaigns and interventions have been carried out against Catalonia, such as the bombardment of Barcelona by Espartero and Prim (according to the doctrine that, in order to solve the «territorial problem» of the Catalans, their capital had to be shelled every 50 years) and the dictatorship of Primo de Rivera (1923-30), which eventually led to the so-called Spanish Civil War (1936-39) and the Franco Regime, one of whose main purposes was to perpetuate the political, economic, linguistic and cultural Castilian hegemony over the Catalans.

After the so-called «transition» to democracy, the Spanish Constitution «approved» under the scrutiny of the “guardians” of Franco’s legacy (the latter boasted shortly before his death of having this matter «tied up and well tied up») refers to the existence of «historical nationalities», but without defining them or recognising their national rights. On the other hand, the Constitution does expressly «prohibit» any kind of federal or confederal cooperation agreements between the Catalan territories of the former Crown of Aragon, even in cultural or linguistic matters ⁷. Despite the attempt to present the Kingdom of Spain, a product of the Bourbon restoration brought about by Franco, as a «quasi-federal» or at least decentralised regime, the true reality is shown by the statistics: despite having approximately 16 per cent of the total population, the percentage of people of Catalan nationality holding high positions in the administration, the diplomatic corps, the security services and the armed forces, the judicial apparatus, the corps of notaries or the public prosecutor’s office and the state attorney’s office, for example, is absolutely insignificant (around or within 0.1 per cent).

This is the result, on the one hand, of the profound and insurmountable disaffection that European citizens of Catalan nationality feel for the Spanish state, which they do not consider as their own and from which they continue to want to separate, as was demonstrated in the referendum of 1 October 2017. And, on the other hand, it is a consequence of the profound contempt, animosity and discrimination to which the Catalans and their language continue to be subjected, 50 years after the death of Franco, by the population of Castilian culture and language and, especially, by the «custodians» of Spanish nationalism, who see them as «foreigners» (assimilated by force) and do not trust them.

7. Specific complaints addressed to the Committee

7.1 In relation to Art. 1 (1) of the Covenant: Horizontal, vertical, direct and indirect discrimination of the EU citizens of Catalan nationality in relation to the exercise of their right to self-determination and to freely decide their political, economic, social and cultural status.

«All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development» (Art. 1 (1) of the International Covenant on Economic, Social and Cultural Rights)

After the referendum and declaration of independence in October 2017 ⁸ , the Madrid government, with the acquiescence of the rest of the EU member states and the complicity of the European Commission, prevented the exercise of the right to self-determination and brutally repressed the European citizens of Catalan nationality, including the right of freedom of expression guaranteed in article 19 of the International Covenant on Civil and Political Rights. In fact, the combined intervention of police and military forces (such as the «Guardia Civil») and judges under the direct orders of the Spanish excutive with the blessing of the Bourbon monarch (who openly pressured the main Catalan companies to boycott the Catalan economy) was an unparalleled «putsch» against democracy, an unprecedented violation of an acquis of the European Convention on Human Rights, incompatible with EU law and article 2 of the Treaty of the European Union (TEU) ⁹ . This discrimination of Catalan nationals with respect to other European peoples or nationalities has deprived them of their basic political rights and has deeply affected the enjoyment of their most fundamental economic, social and cultural rights. It is difficult to believe that the discrimination and repression of the rights of the Catalans, including the right to decide their political status as an EU territory, can be justified by the EU’s support for Madrid’s plan for Catalonia, namely to keep it relegated to the status of a colony, and to plunder the European citizens of Catalan nationality, in a condition of a despised but profitable money-making «assimilated» minority, within the borders of the Spanish State.

Let us then analyze the «legal doctrine» advanced by the Spanish courts and accepted by the institutions and member states of the EU to justify the discrimination of European citizens of Catalan nationality. The constitution clearly favors Spanish nationalism over peripheral nationalism, leaving very little room for self-determination of the political communities it calls «nationalities». But what is more, the interpretation offered by the Constitutional Court (TC) – of conservative majority since there has never been a «vetting» of Francoist judges in Spain – in national matters is the most restrictive possible: the nations of the periphery not only lack the right to self-determination, but are not even authorized to unilaterally call a consultation ¹⁰  to decide whether the majority of the population consents to continue being part of the Spanish state under the current conditions. However, when the Catalan Parliament requested such a consultation, the majority of the deputies (representing Spanish nationalist parties) rejected it, so they did not agree to the possibility of an agreed consultation either. That is to say, to a monist constitution interpreted by a radically nationalist (CastilianSpanish nationalist) and anti-pluralist TC we have to add a government and a parliamentary majority even more centralist and dogmatic. In Catalonia a demand for a referendum arose already after the TC ruling that repealed part of the 2006 Statute (STC 31/2010), but the central authorities continue to want to prevent by all means the holding of a referendum. The reasons given are basically two. The first has a «legal» tenor: the constitution forbids it. However, as the Magna Carta is susceptible to modification, a variant of the TC’s legal argument appears to appeal to the «holder» of national sovereignty: let all Spaniards vote, if at all. The second reason acquires «metapositive» overtones – although the Magna Carta is subject to modification, certain elements that form part of its essential core, such as national unity, cannot be altered – or «historical» ones – a long life in common cannot be cut short at one moment to the next in the heat of popular demand.

The “reasons” based on the law and the constitution do not stand up to an in-depth analysis, since they start from a crippled concept of democracy that is reduced to the Spanish constitution of 1978. Moreover, the Spanish constitution is not as «democratic» as its defenders maintain – especially in national matters – nor is its reform materially feasible. More serious are the consequences of a close examination of the discourse that resorts to history and supra-positive values, since it reveals the true objectivist character of Spanish hegemonic nationalism. In democracy it is not acceptable that certain questions, however fundamental they may be, become irreformable. Nor does positivist logic allow the imposition of limits to constitutional modification that are not included in the text. In the end, it seems that the rhetoric of «legality» operates as a smokescreen to hide the real reasons why Catalonia – or any other nation within Spain – cannot self-determine, much less become independent: the historical destiny of Spain is to remain indissolubly united.

The EU institutions, especially the Council, the Commission and the European Court of Justice (ECJ), have enormous resources and excellent experts with in-depth knowledge of the legal systems and jurisprudence of the various EU member states. In addition, the European Commission has delegated powers and competences to ensure compliance with European standards, especially the Treaty on the European Union (TEU), which in its Art. 2 requires respect for human rights and minority rights, thus incorporating full compliance with the obligations of the International Covenants on Human Rights. The Commission is also entrusted with the task of acting as guarantor of the rights of European citizens, including those of Catalan nationality, and of protecting them from any kind of discrimination (see references to the specific articles of the TEU below).

Therefore, the following question arises: Was the EU Commission unaware of the content of the Spanish Constitutional Court rulings denying the existence of the right of self-determination of the Catalans? Did it have doubts or concerns about the scope or consequences of this doctrine and its compatibility with the jurisprudence of the ECJ and other international courts, in particular the International Court of Justice? If not, what was the reasoning behind his «laissez-faire» or «look the other way» attitude, which made it complicit in the repression and human rights violations committed to oppress and intimidate the Catalans? How can such behavior, which has had and continues to have such serious consequences for the economic, social and cultural rights of European citizens of Catalan nationality, be justified?

7.2 In relation to Art. 1 (2) of the Covenant:

7.2.1 Economic discrimination and spoliation to the detriment of the European citizens of Catalan nationality, as a consequence of the discrepancies and the inequity resulting in the granting of “fueros” ¹¹ by the Spanish State only to some «historical nationalities» and the different fiscal regimes applied to the autonomous communities.

«All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence» (Art.1 (2) of the International Covenant on Economic, Social and Cultural Rights).

The 1978 Spanish Constitution, adopted after the death of Franco, allowed the nationalities and regions to constitute themselves into autonomous communities. Both the process by which nationalities and regions were to accede to self-government and the scope of competences were intended to be asymmetrical from the outset. One of the main differences was established in the first additional provision of the constitution, which established protection and respect for the historical rights of the territories that had been granted “chartered rights” or privileges by Castile, such as Álava, Guipúzcoa, Vizcaya and Navarre. The first three were united to form the autonomous community of the Basque Country, while Navarre was constituted as the Comunidad Foral de Navarra. The recognised and updated statutes granted them specific competences not recognised to other autonomous communities, including fiscal autonomy, which is the power to manage their own income and expenditure.

The justification for this discrepancy was based on history ¹² [9]: from the 12th to the 16th century, as the Kingdom of Castile expanded and incorporated other territories, the Crown of Castile granted them certain privileges, which were then progressively reduced or eliminated, as were the historical privileges and constitutions of the former territories of the Catalan-Aragonese Confederation (not granted by the Crown of Castile), which were abolished after the occupation and military repression of Catalonia in 1714.

During the 19th century, in the various constitutions that were drafted, such as that of 1837, the monarchy attempted to homogenise all the regions of Spain and abolish the fueros of the Basque provinces and Navarre. However, at the end of the First Carlist War, the law of 25 October 1839 once again recognised the validity of the fueros (but not those of the «assimilated territories» annexed by force of arms). Finally, the law of 21 July 1876, during the period known as the «restoration» (of the monarchy), abolished the fueros while paradoxically maintaining the fiscal autonomy of the same territories in the form of an «economic agreement». This system was abolished in Guipúzcoa and Vizcaya during the Spanish Civil War, by the decree-law of 23 July 1937, as «punishment» for taking up arms against the National Movement, the military insurrection that gave rise to the dictatorial regime of Francisco Franco. However, at the end of Franco’s regime, new laws repealed the decree-law. During the so-called Spanish transition to democracy, under the scrutiny and coercion of the military and judicial apparatus, the recognition of these “fueros” gave rise to many heated debates, but the «constituent assembly» opted to recognise them within the framework of the constitution and the statutes of autonomy that were to be created, so they were to be updated and modernised, but not for any of the “assimilated” territories of the former Crown of Aragon.

The “chartered Spain” is shown in blue while the “assimilated Spain” , the militarily annexed territories of the former Catalan-Aragones Crown where “charters” and “privileges” had been abolished, is shown in green

In exercise of the right to self-government recognized in the post-Franco Spanish constitution, the provinces of Alava, Guipuzkoa and Biskay, that historically had been known as the Basque provinces joined to form the autonomous community of the Basque Country. The Statute of the Basque Country establishes that the Community could incorporate Navarre if its population so desired, ergo, by referendum (in contrast, the constitution “prohibits” any kind of federation agreement between the Catalan speaking terriories of the historic Crown of Aragon Confederation).

In practice, what this means is that the historical territories of the Basque Country have the faculty to maintain, regulate and regulate their tax systems, including the ability to collect, manage and inspect all state taxes, with the exception of import duties and the value-added tax. The autonomous community then transfers a specific amount of money for the management of those competencies that the community did not assume but are within the central governement scope of action (military, diplomatic service, etc.). This amount is known as “cupo” or “contribution”. Navarre, on the other hand, acceded to self-government, taking as a starting point the recognition of the fueros, based on the “ley paccionada (“negotiated law”) of 1841. In lieu of a statute of autonomy, per se, the parliament of Navarre passed a law of reintegration and improvement of Navarre’s chartered regime. The law of Navarre also created its own treasury and established its own fiscal autonomy, and, as in the case of the Basque Country, Navarre collects all the taxes and then sends a “quota” or “contribution” to the Madrid government. The Basque Country and Navarre are among the richest communities in income per capita.

In contrast, in the territorial administration in Spain, the 15 autonomous communities that are not part of the “chartered regime” belong to what is known as the “common regime”, in which the central government is in charge of collecting taxes from all the communities and the redistributing them (at its discretion) for purposes of a so-called “fiscal equialization”. In practice, richer common-regime communities, such as the “assimilated” former territories of the Crown of Aragon become net contributors. This is known as the “fiscal deficit”, which in the case of Catalonia is absolutely astronomical and without paragon in any other territory of the EU. In Catalonia, one of the largest contributors of the “common regime”, the immense majority of citizens and political leaders consider that this “net contribution” (actually, a de facto confiscation of resources) and the corresponding “fiscal deficit”, ranging from 10 to 15% of the GDP, is unbalanced and absolutely disproportionate when compared to what occurs in redistribution or contribution systems in any other country in Europe. Catalan political parties have denounced for decades this situation and have demanded a change in the “common regime” system or full fiscal autonomy for Catalonia like the enjoyed by the communities in the “chartered regime”. The fiscal discrimination that Catalonia sufferes is the main obstacle for the improvement in the enjoyment of a vast number of economic, social and cultural rights of the population, incliding the access to essential goods and services, such as housing, health, education, adequate infrastructure and transportation ¹³ .

TABLE 1 : Basic statistics for the Basque and Catalan regions ¹⁴

	Basque Country	Catalonia	Spain
Area (sq km)	7234 (1.4)	32113 (6.3%)	506030 (100%)
Population (million)	2.19 (4.7%)	7.52 (16.2%)	46.52 (100%)
GDP (€bn)	65.9 (6.1%)	204.7 (18.9%)	1081.2 (100%)
GDP per capita (€)	30459 (130.8)	27663 (118.8)	23290 (100)

TABLE 2: Regional debt to regional GDP (%) ¹⁵

	2008	2009	2010	2011	2012	2013	2014	2015
Basque Country	1,5	4,1	7,7	8,6	11,4	13,2	14,1	14,4
Catalonia	10	12,7	17,5	22	26,7	29,9	32,7	35,3
Spain	6,6	8,6	11,4	13,6	18,1	20,3	22,7	24,2

The general feeling of the Catalans in the face of this situation of clear fiscal discrimination and manifest inequality with respect to other historical nationalities has been expressed in the expression “Espanya ens roba!” (Spain robs us!). The Spanish government has tried to counteract this mass clamour and hide the reality using two main «tricks»: 1) by hiding the publication of the fiscal balances, which, by themselves, are eloquent enough ( the official fiscal balances have been published only once by the Spanish government in 2008), 2) by arbitrarily modifying the calculation system with the help of like-minded academic «experts», in order to conveniently camouflage the astronomical amount of the fiscal deficit in Catalonia (which, according to the Generalitat – the autonomous government of Catalonia – was 15. 006 million euros in 2011). One does not need to be a great expert in fiscal balances or econometrics to realise the magnitude of the continuous plunder suffered by the European citizens of Catalan nationality. Especially if one takes into account the essential data shown in the above tables and compares the situation of Catalonia with that of other territories with a decentralised administration, such as Flanders, for example.

Again, the question is, how is it possible that the European Union, and especially the Commission, which has hundreds of experts in statistics and public finance and regularly publishes data on practically everything in the EU, and which has a representative office in the Catalan capital, has been able to overlook this reality?

In 2010, after the Spanish TC arbitrarily “revised” (and “chopped”) the Catalan Statute, all parties represented in the Catalan Parliament agreed to demand a new fiscal regime, to put an end to the economic expoliation and the discrimination of Catalonia with regard to the “chartered regime” communities. The proposal was articulated around the following themes:

·    Principles of efficiency, responsibility, equity and solidarity, to promote the reactivation of the economy and the economic and social progress of Catalonia and the rest of the country (Spain).

·  The recognition by the constitution of the “historic nationalities” as a way to access to specific competencies.

·  The improvement of the degree of horizontal and vertical equity among autonomic comunities and between the autonomic communities and the central state.

·   The assumption of full responsibility by Catalonia for measures oriented to achieve a full fiscal balance of all public accounts and to promote the developmet of Catalonia while maintaining a consistent and coordinated framework for fundamental economic policies with the rest of Spain.

The central government’s response was that of all Spanish nationalist governments, the same as always. The best way to sum it up is to quote the «maxim» of former Prime President Felipe Gonzalez. As González eloquently “dixit”, «we must not fall into the blackmail of minorities on the verge of extinction» ¹⁶ , thus reiterating the genocidal objective constantly pursued by the Spanish state with its “castellanisation policies” since 1714.

As confirmed by recently published secret documents, the Spanish government, with the cooperation of the police and judges, ordered the persecution of Catalan politicians and businessmen with the use of public resources to subject them to blackmail, harassment, slander and, ultimately, to combat and «decapitate» the independence movement and to intimidate and eliminate its leaders. This information, validated by witnesses who were part of the operation, shows that the Minister of the Interior, Jorge Fernández Diaz, and President Rajoy himself ordered the launch of Operation Catalonia in September 2012, after the massive Diada (Catalonia’s national day) of that year and after the then president of the Generalitat Artur Mas had unsuccessfully demanded in Madrid a fiscal pact for Catalonia.

Operation Catalonia consisted of spying on politicians and businessmen and parallel actions carried out by the National Intelligence Centre (CNI) as confirmed by some thirty briefing notes from the Spanish police between 2012 and 2014, which went directly to the heads of the Interior ¹⁷. In all likelihood, it also included the organisation of a hoax Islamist attack, organised by an imam known to be a confidant of the CNI and the Moroccan secret services on the Ramblas in Barcelona in August 2017 (just before the independence referendum of 1 October 2027), in which at least 18 people were killed. That attack has never been investigated by the public prosecutor’s office or clarified by the Spanish courts. In contrast, open cases against Catalan political leaders and pro-independence activists continue to this day. The administration of justice in Spain has been thoroughly politicized to target Catalan politicians, journalists and academics in an unprecedented and discriminatory strategy to demonize, intimidate and marginalize Catalan society.

7.2.2 In relation to Art. 1 ( 2) and Art. 2 of the Covenant: Interference with the linguistic and cultural rights and discrimination and minoritisation of the EU citizens of Catalan nationality

«The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status» Art.2 ( )2 of the International Covenant on Economic, Social and Cultural Rights).

The Kingdom of Spain, with the complicity of the EU member states and the EU authorities, not only prevents Catalans from exercising self-determination, but refuses to apply international standards for the protection of minorities and continues to perpetrate cultural and linguistic discrimination against the European citizens of Catalan nationality. In spite of the fact that the competences in matters of culture and language have been transferred to Catalonia by the constitution, the Spanish central power invokes its «exclusive rights over the fundamental bases in matters of education» using the courts at all levels to bypass the laws passed by the Catalan Parliament (let us remember that in Catalonia the courts of justice are directly controlled by Madrid since the «Nueva Planta Decree» of the 18th century). The Constitutional Court attributed to itself legislative powers to suspend or censure («cepillar» was the expression used by the Spanish Vice President) the new Catalan Statute that had been negotiated with all parties in Catalonia, approved in referendum by the Catalan population and had even been enacted as an Organic Law in 2006. Not surprisingly, as a matter of policy, the reports on minorities submitted by the Kingdom of Spain to the scrutiny of international human rights bodies make no mention of «nationalities» or «linguistic minorities». Unfortunately, the «maxim» of former President Gonzalez also applies fully to the (lack of) respect and protection of the Catalan language.

In this regard, it is important to underline that, in an urgent letter addressed to the Spanish government, the United Nations Special Rapporteur on Minorities, Mr. Fernand de Varenne, clearly points out the non-compliance with fundamental human rights standards of the Catalans and questions the «legal basis and logic applied by the High Court of Justice of Catalonia to rule against the Catalan model of immersion, which has been successfully tested by UNESCO and other international commentators» and asks for clarification on «how the rulings of the High Court of Justice of Catalonia are compatible with national legislation and international human rights instruments ratified by Spain». The Special Rapporteur’s letter is attached as Annex 1.

Thus, EU citizens of Catalan nationality who wish to exercise their right to self-determination (which the CJEU in its case law has already referred to as an «Objectively Identifiable Group» – OIG – in the context of the European Union) are victims of multiple, formal, substantive and systematic discrimination due to the combination of many of the prohibited grounds identified by the Committee in its General Comment no. 20 (2009): membership of a national group, language, culture, political opinion, economic position, origin and place of residence.  

7.3 In relation to Art. 1(3) of the Covenant: the responsibility of the member states and the authorities of the European Union, in particular of the European Commission ¹⁸

«The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations» (Art. 1 (3) International Covenant on Economic, Social and Cultural Rights).

It bears repeating that Article 1(3) does not talk about refraining from creating obstacles to self-determination, but instead imposes a positive obligation on states parties to promote the realization of this right. In this regards, it is worth recalling that Article 2 of the Treaty on the European Union (TEU) states:

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”(Art. 2 of the Treaty on the European Union)

Moreover, citing from Article 9 of the TEU:

“In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive the same attention from its Member States as from its Member States. They shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State is a citizen of the Union. Citizenship of the Union is additional to and does not replace national citizenship” (Art. 9 of the Treaty on the European Union)

It is clear and it can be empirically documented that there is systematic discrimination against Catalans at all levels in Spanish society, in contravention of Art. 9 of the European Union Treaty.

Furthermore, it is also worth recalling that the European Union clearly has the means to prevent or put an to the discrimination and the spoliation of the EU citizens of Catalan nationality. Article 7 of the TEU states:

“On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2″ (Art. 7 (1) of the Treaty on the European Union)

In disregard of the equal rights of Catalans, the European Parliament, the EU Council and the EU Commission have failed to take action to protect the rights of European citizens of Catalan nationality. As it is also stated in the TEU:

«The Commission shall promote the general interest of the Union and shall take appropriate initiatives to that end. It shall ensure the application of the Treaties and of the provisions adopted by the institutions pursuant thereto. It shall supervise the application of Union law under the control of the Court of Justice of the European Union.» (Art. 17 (1) of the Treaty on the European Union)

The absence of pertinent action by the European Union manifests the politicization of the institution and the impunity of the Spanish state for its multiple violations of the ICESCR and the European Treaty.

In relation to the issue of the violation of the provisions of the International Covenant on Economic, Social and Cultural Rights to the detriment and impairment of the rights of the European citizens of historical Catalan nationality, the authors refer to the report submitted by Professor Alfred Maurice de Zayas to the General Assembly in 2014 (A/69/272) in his capacity as Independent Expert of the United Nations Human Rights Council on the promotion of a democratic and equitable international order, which identifies the realization of the right to self-determination as an essential strategy for the prevention of internal, regional and international conflicts. Subsequently, in December 2017) Professor de Zayas completed his review of contemporary international law with some «Practical Notes» for the appreciation of activities related to the peaceful and democratic exercise of the right of self-determination of peoples. In relation to the specific case of the Catalan people, the application of the » Notes» allows the following conclusions to be drawn:

1) The right to self-determination is ius cogens, a fundamental legal right of superior hierarchical rank, recognized by the founding treaty of the United Nations, and which prevails over any contrary national or international provision. The right to self-determination consists in the ability of peoples to decide their political destiny and freely manage their resources and to ensure and promote respect for and protection of their culture, tradition and language. The principle of territorial integrity cannot be used as a pretext to diminish the responsibility of states to protect the rights of peoples under their jurisdiction. In the event of a conflict between the principle of territorial integrity and the human right to self-determination, it is the latter that prevails. The holders of the right of self-determination are all peoples without exception. A «people» is generally recognized as any group of persons with a common historical tradition, cultural homogeneity, linguistic unity, territorial connection or a common economic life, with a consciousness of being a people and a desire to be recognized as such. It seems therefore beyond doubt that, in any case, there is indeed a «Catalan people» made up of the citizens of the European Union of Catalan nationality. There is indeed more than enough historical, political, economic, legal, linguistic, cultural, identity, customary and territorial evidence to corroborate that the European citizens of Catalan nationality in the territory of Catalonia have the awareness of being a people and the will to be recognized as such, to decide their destiny and freely manage their resources and protect their culture and language. The people of Catalonia have proclaimed the Catalan Republic at least 3 times from 1641 to 2017, the last time after the organization of a democratic referendum, with the participation of international observers.

2)  The brutal and violent repression by the Spanish government, with the use of military forces and courts was unprecedented in any other country or territory of the democratic European Union. According to official reports corroborated by international observers, on the day of the referendum, October 1, 2017, the forces of repression assaulted with extreme violence more than 1066 people, caused material damage to schools and voting centers, confiscated ballot boxes and ballots, and closed polling stations and used electronic measures: Despite this, European citizens of Catalan nationality declared themselves broadly in favor of independence. Subsequently, the Spanish government, mischievously invoking art. 155 of the Spanish constitution, intervened the government and parliament of Catalonia, imprisoning and forcing into exile the leaders of the Catalan people, unleashing a campaign of coercion, blackmail and intimidation against pro-independence activists that has continued to the present day. The objective of the Bourbon state is to maintain indefinitely the Catalan people in a situation of colonial subjugation, perpetuating the discrimination, the economic plundering, the genocidal attacks against the Catalan culture and language until the assimilation project that has been applied for more than three centuries is completed. The autonomy statute of Catalonia has been «brushed» and «chopped», and its political leadership has been «beheaded». But the Declaration of Independence of the people of Catalonia is still in force, because the parliament, elected under conditions of repression and coercion, has not been repealed (the text of the Declaration is attached). As stated above, the Spanish state authorities continue to violate these same principles and values and the only justification they offer is that the Spanish constitution prohibits European citizens of Catalan nationality from exercising their self-determination. However, an EU member state cannot invoke its internal sovereignty to violate the principles of Art. 1 of the ICESCR and thus Article 2 of the TEU. Since the Spanish state is obliged to address the Catalan sovereignty process with respect for the values of Article 2 TEU, which it does not do, EU member states and European institutions are obliged to reproach Spain for the violation of the democratic principle and sanction it for the violation of the human rights of the Catalan minority, instead of trying to dissuade the Catalans from exercising their right to decide freely.

3)  The guarantors of the right of self-determination are «all states», whose institutions must not only respect the exercise of this right but also actively facilitate it, especially in relation to the peoples under their jurisdiction. This constitutes an erga omnes obligation. Peoples must exercise the right of self-determination in a peaceful and democratic manner. States must facilitate such exercise effectively, on equal terms: All organs of the state are bound. Creating obstacles will entail the responsibility of the state. The right of self-determination exists in the internal national legislation of all member states of the United Nations, including all member states of the European Union, as it is a norm of jus cogens, an imperative right of superior hierarchical position, of obligatory compliance according to the Charter of the United Nations. In this sense, it is necessary to emphasize that all EU member states are signatories to the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, including Art. 1.3 common to both covenants. Likewise, not only Spain, but all EU member states and institutions are obliged to respect the values and rights proclaimed in Article 2 of the TEU, which overlap with those contained in Arts. 1 and 2 of the International Covenant and, according to the doctrine of the Court of Justice of the European Union, are «integrated» in it. The contrary would be tantamount to sustaining an incomceivable «fragmentation» of the international law of human rights contained in the International Covenants which have the status of ius cogens.

4)  On the other hand, Article 2 of the Treaty on European Union (TEU) proclaims the values on which the European Union is based, including democracy, respect for human dignity, equality, human rights and the rights of persons belonging to minorities. As long as the people of Catalonia have not effectively achieved their independence in full exercise of their right to self-determination, there remains a minority of European citizens of historical Catalan nationality, which is recognized by the state and by Spanish society as a whole as such, as well as by the international community. The EU member states have conferred specific powers and responsibilities to the EU Commission, among other things, to defend and promote the respect of human rights and minority rights mentioned in Art. 2 of the TEU, which incorporate the rights proclaimed in the common Art.1 of the International Covenants. Therefore, a conclusive argument in favor of the right of the people of Catalonia to non-consensual secession can be based on the fact that Spain has not demonstrated good faith in responding to demands for self-determination. The stubborn refusal of the Spanish government to respond adequately to Catalonia’s aspirations for self-government or, at least for greater equity in economic and cultural matters, to stop being discriminated against, plundered and subjected to colonial treatment, and the brutal repression of the exercise of self-determination of European citizens of Catalan nationality before, during and after the Referendum of October 1, 2017 in view of its seriousness should have had the most far-reaching consequences in terms of the response of member states and EU instances. Taking into account the prohibition of discrimination and the principle of equality of all EU citizens (proclaimed in Art. 9 TEU) the EU member states and the EU institutions, and especially the Commission, should have activated the procedure provided for in Art. 7 TEU to hold a member accountable in relation to the risk of breach of the values referred to in Art. 2 TEU and the prohibition of any discrimination on grounds of nationality (Arts. 18 and 19 of the Treaty on the Functioning of the European Union).

1. Therefore, not only Spain, but all other EU member states and institutions, and first and foremost the European Commission, have failed to fulfill their responsibilities. Not only have they done nothing to promote the exercise of the right of self-determination of the Catalans, as required by Art. 1(3) of the International Covenant, but on the contrary, with their complicity, they have contributed and continue to contribute to the violation of the economic, social, cultural and linguistic rights of the minority of European Union citizens of Catalan nationality.

8. Requests addressed to the Committee.

As shown in the previous sections, the EU citizens of Catalan nationality are victims of massive and systematic violations of their political, civil, economic, social and cultural rights without precedent in a member state of the European Union. It is a kind of «apartheid in reverse» in which the victims, belonging to a millenary nationality in the very heart of Europe, are despised, denigrated, plundered and forcibly kept as «assimilated» within the kingdom of Spain for the mere fact of being profitable. To use a rural analogy, for Spanish nationalists the Catalans are like farm animals, say laying hens or dairy cows, which must be kept “inside the fence”, because they are profitable, and because if they were to escape, the «Madrid-runned farm» would go bankrupt. In the preceding paragraphs we have highlighted the main aspects of the dispossession of rights suffered by the European people of Catalonia, due to the impunity enjoyed by the Spanish nationalist state in the “EU garden of democracy and human rights” – to paraphrase the expression of the EU High Representative for Foreign Affairs, himself a Spanish nationalist, who has claimed that Catalan pro-independent civil society must be “desinfected” – namely, the denial of their sovereign and inalienable right to self-determination as a people, and the systematic fiscal discrimination, the opprobrious economic spoliation and the ongoing cultural and linguistic repression as a national minority within the EU. Is this perhaps yet another manifestation of the same rancid and «traditional» Castilian brand of colonialism, or perhaps a new and peculiar contemporary form of slavery condoned, indeed promoted by the European Union? This is a question we respectfully submit to the learned appreciation of the members of the Committee. Whatever the democidal typology by which the Catalans are oppressed, we request the distinguished Committee to correct these violations of ICESCR.

Consequently, in accordance with the provisions of the Optional Protocol to the ICESCR, taking into account the present situation of de facto “decapitation” of the government and parliament of Catalonia and the repression, coercion, intimidation, imprisonment and blackmail that the Catalan political leaders and activists have suffered and continue to suffer, perpetrated with the complicity of the Spanish courts, as well as the lack of standing of civil society members of the Catalan minority to initiate proceedings before the Court of Justice of the European Union to complain about the discrimination and the spoliation to which they are subjected, and taking specially into account the Committee’s General Comment No. 20 (E/C.12/GC/20 – 2009) on non-discrimination in economic, social and cultural rights, as well as the pronouncements of other UN human rights treaty bodies, such as the Working Group on Arbitrary Detention and the Human Rights Committee ¹⁹, in relation to the repression and imprisonment of Catalan leaders and activists the authors respectfully request the Committee, as well as the positions expressed by the UN Special Rapporteur for Minorities and the UN Independent Expert, to consider that this communication raises serious issues under the ICESCR, and request the Committee to accede to our petition and to decide:

• To identify the violations of the ICESCR committed by the Spanish Kingdom with the acquiescence and the complicity of the EU institucions and to abrogate all discriminatory practices against the EU citizens of Catalan nationality.
• To request the EU authorities to take all necessary measures to ensure that all the rights in the ICESCR are fully implemented, and, in particular, that the rights of the European Union citizens of Catalan nationality be respected and promoted at all levels.
• To demand that all EU member states and bodies fulfill their responsibility with respect to the provisions of the ICESCR and, specifically, the obligation incumbent upon all EU member states to facilitate and promote the peaceful and democratic exercise of the right to self-determination of European citizens of Catalan nationality and to put an end to the violation of their rights under the Covenant and the TEU and to the repression, plundering and subjugation of the EU citizens of the Catalan minority.
• To impress upon the EU member states and bodies, and more specifically upon the European Commission, the imperative need to put an end, in all circumstances and immediately, to the discrimination and spoliation, the cultural repression and the linguistic interference suffered by the European citizens of the Catalan minority, using all the means provided for in the Treaty on the European Union, including through the recourse to the Court of Justice of the European Union.
• To point out to the EU member states and bodies the need to bear in mind the direct relevance of the positions and precepts invoked by Spain before the United Nations in the precedents of decolonization and self-determination procedures relating to the Spanish State (independence of Equatorial Guinea, decolonization of the territory of Western Sahara, decolonization of Gibraltar with the requirement to denounce the Treaty of Utrecht), as well as those of the other member states and bodies of the European Union inter alia with respect to the integration of the former GDR into the Federal Republic of Germany, the Scottish independence referendum, the referendum in Greenland and the referendum in New Caledonia), as well as the doctrine of the International Court of Justice in the case of the declaration of independence by the Parliament of Kosovo, and, consequently, to support and sponsor the demand of the Catalan people for independence, decolonization and full self-determination, through a request submitted by the Secretary-General for consideration by the UN Committee of 24, and if appropriate, to endorse the holding of a self-determination referendum with international observers, including members of the CESCR, if the Catalan parliament so decides.
• To order all instances and member states of the European Union, and especially the Kingdom of Spain, including the forces of repression of a military nature and the courts, as well as the current government and the police of the Autonomous Community of Catalonia which are intervened and controlled by the government of Madrid, and all other organs, institutions and public officials to refrain from ordering or executing administrative or judicial actions or resolutions, whose objective or consequence is to hinder acts of peaceful and democratic exercise of the Catalan people’s right to self-determination, to freely manage their resources and to protect their culture and language, given that such actions or resolutions must be deemed as serious violations of a fundamental human right protected by the Charter of the United Nations, by the International Covenants and by the Treaty of the European Union, and, therefore, null and void.
• Finally, and as a consequence of the above, to declare the legitimacy of the peaceful initiatives and activities of civil disobedience and the demonstrations carried out by the members of the civil society of the minority of European citizens of Catalan nationality, acting as DEFENDERS OF THE HUMAN RIGHTS OF THE CATALAN PEOPLE, and to point out the need for this condition to be fully taken into account by all the authorities and bodies of the European Union.
• In the same vein, we request the Committee to take note of our decision, with a view to prevent possible reprisals, to request the distinguished jurist and former United Nations Independent Expert, Professor Alfred Maurice de Zayas, to take on the task of acting as legal representative and point of contact on behalf of the authors of the present communication. Professor de Zayas has generously accepted our request.
• The authors of this petition are prepared to submit whatever additional information is requested by the distinguished members of the Committee.

ANNEX 1

Mandate of the Special Rapporteur on minority issues

13 October 2023

Excellency,

I have the honor to address you in my capacity as Special Rapporteur on minority issues, in accordance with Human Rights Council resolution 52/5.

In this context, I would like to bring to the urgent attention of Your Excellency’s Government the information I have received in relation to the limitations imposed on the Immersion Model for teaching in the Catalan language and allegations of violations of linguistic rights in the Autonomous Community of Catalonia.

According to the information received:

Since 1983, the autonomous community of Catalonia has been using the «Catalan immersion model» in its public schools. The term «linguistic immersion» or «linguistic immersion model» refers to an educational system that uses a language other than the mother tongue. This model was applied from early childhood through primary and secondary education and was intended to guarantee sufficient learning of the Spanish and Catalan languages to avoid linguistic segregation and the assignment of students to different schools or classes based on their mother tongue.

Established by the so-called «Linguistic Normalization Law», Law 7/1983, of April 18, 1983, the Immersion Model began to be implemented at all school levels as a subject and as a means of instruction, with the support of parents, communities, civil organizations and public institutions. The Law also established some general principles, such as: i) declaring Catalan as the main language of instruction at all educational levels; ii) that all children shall have the right to receive their first education in their mother tongue, either Spanish or Catalan; iii) prohibiting the segregation of students in schools or in different classrooms based on their origin; iv) guaranteeing that all students, despite their initial language of instruction, acquire sufficient knowledge in both languages (they must be able to use them correctly and sufficiently), at the end of compulsory education.

These principles continued to be applicable in subsequent laws: Law 1/1998, on Language Policy, in particular articles 20 and 21; Statute of Autonomy of Catalonia of 2006, article 35; Statute of Autonomy of 2009, articles 18 to 19. The model was implemented thanks to the new legal framework, as well as the experience of international experts and teachers in teaching the Catalan language to non-Catalan speakers and the efforts of parents, teachers and politicians and business and trade union organizations.

In the 1980s and 1990s, the concept of the immersion model in Catalan schools enjoyed a large social and political consensus in the region, but also in Spain as a whole. The school was seen as playing a key role in promoting knowledge of the official languages, especially in a society considered to be a minority linguistic group.

On August 7, 2015, the High Court of Justice of Catalonia (judgment 312/2015) established that, in addition to subjects in Spanish language, at least 25% of all subjects taught in primary and secondary schools in Catalonia should be taught in Spanish, including at least one basic subject. Therefore, several core subjects would be taught in Spanish. Although the decision did not directly pronounce against the Catalan Immersion Model, it represented an institutional obstacle to the implementation of the model.

On September 16, 2020, the High Court of Justice of Catalonia reiterated the judgment issued in 2015 against appeal 168/2015 filed by the State Attorney’s Office (judgment 5201/2020). Although the Cortes Generales approved on December 29, 2020 the Organic Law of Modification of the Organic Law of Education (Ley Orgánica de Modificación de la Ley Orgánica de Educación (Ley Celaá, Ley Orgánica 3/2020), which had given room for the implementation of the Catalan immersion model by facilitating the linguistic immersion projects. The following year, on November 18, 2021, the Supreme Court dismissed the appeal filed by the Generalitat de Cataluña on the Ruling issued by the Superior Court of Justice of Catalonia in 2020 (Ruling 5201 of 2020) and, therefore, declared the appeal inadmissible.

On May 9, 2022 («recurso ordinario» nº168/2015), sentence passed in the Appeal filed by the association «Asamblea por una escuela bilingüe», the High Court of Justice of Catalonia ordered the Minister of Education of the Generalitat of Catalonia to execute within 15 days the measures provided for in the sentence of December 16, 2020, obliging the Generalitat of Catalonia to comply with the order and adopt the necessary measures so that students receive at least 25% of the teaching hours in Spanish.

Before the end of the mandatory implementation period, on May 30, 2022, the Generalitat de Catalunya passed a Decree Law (6/2022) which established that no linguistic percentages could be applied in the educational system and that the Department of Education had to validate the language projects of the centers to verify that they complied with the regulations establishing that Catalan must be the natural language in Catalonia. This Decree establishes the criteria applicable to the elaboration, approval, validation and revision of the language projects of the educational centers.

One week later, on June 9, 2022, Law 8/2022 on the use and learning of official languages in non-university education was approved. According to this Law, the Catalan language is the usual vehicular language in the Catalan educational system, although Spanish can be a curricular language. In practice, this means that Spanish can be used to teach non-linguistic disciplines.

Currently, Decree-Le 6/2022 of the Generalitat de Catalunya and Law 8/2022 are pending review by the Constitutional Court.

Although I do not wish to prejudge the veracity of these allegations, I express my serious concern about the above decisions and their scope, which may represent a serious trend for the Catalan minority linguistic group by limiting education in the Catalan language.

The issue of the language of instruction and related judicial pronouncements has already been raised by the mandate of the UN Special Rapporteur on Minority Issues, in his report on his official visit to Spain in 2019/11 ²⁰.

I further express my concern that the decisions of the High Court of Justice of Catalonia against the Catalan immersion model, which has been considered very successful by UNESCO and other international commentators, imply less exposure to the Catalan language. The data provided indicate that children in the Catalan immersion program have the same proficiency in Spanish, mathematics and other academic subjects as children schooled in Spanish, in addition to achieving proficiency in the minority Catalan language.

Reducing the use of the Catalan language in the successful immersion program in Catalonia, it is argued, would run the risk that children and students from Spanish-speaking backgrounds would not learn Catalan well, as it is a minority language. Moreover, since Spanish is the majority language in the country, its daily use and exposure are already guaranteed and privileged. It also appears that, in recent years, judicial interpretation and other developments have generally led to an increase in barriers to the use of minority languages in a number of public services.

In relation to the above allegations, please find attached the Annex of references to international human rights law which summarizes the relevant international instruments and principles.

It is my responsibility, in accordance with the mandate given to me by the Human Rights Council, to attempt to clarify the allegations brought to my attention. In this regard, I would be very grateful to have your cooperation and comments on the following matters:

1)  Please provide any additional information or comments in relation to the above allegations.

2)  Please provide any additional information or comments in relation to the analysis and concerns presented.

3)  Please clarify how the reported developments in relation to the Catalan linguistic minority, if confirmed, are consistent with your Excellency’s Government’s obligations under the above-mentioned provisions and what measures your Excellency’s Government intends to take to address inconsistencies with international human rights standards.

4)   Please indicate whether, and to what extent, children and students of the Catalan linguistic minority in Catalonia at different educational levels would continue to be taught in Catalan and be exposed to the language on a daily basis in order to use their own language in public life.

5)  Please clarify what is the legal basis and logic applied by the High Court of Justice of Catalonia to rule against the Catalan model of immersion, which has been successfully tested by UNESCO and other international commentators.

6)  Please clarify how the rulings of the High Court of Justice of Catalonia are compatible with national legislation and international human rights instruments ratified by Your Excellency’s Government.

I would appreciate receiving a response within 60 days. After this deadline, this communication and any response received from your Excellency’s Government will be made public through the communications reporting website. They will also be made available subsequently in the regular report to be submitted to the Human Rights Council.

Pending your response, I would like to urge your Excellency’s Government to take all necessary measures to protect the rights and freedoms of the above-mentioned person(s).

I will be able to publicly express my concerns in the near future, as I believe that the information received is sufficiently reliable to indicate that there is a matter that warrants immediate attention. In addition, I believe that the public needs to be informed of the potential implications related to the above allegations. The press release will indicate that I have been in contact with Your Excellency’s Government to clarify the relevant issues.

Please accept, Excellency, the expression of my highest consideration.

Fernand de Varennes Special Rapporteur on Minority Issues

Annex (included in the Special Rapporteur’s letter)

References to international human rights law

With regard to the facts and concerns alleged above, we would like to remind Your Excellency’s Government of its legal obligations under international law applicable to the matters raised.

I recall first of all that the Universal Declaration of Human Rights, adopted by the General Assembly on 10 December 1948, is a foundational normative document of the United Nations system, and recognizes in its article 1 that «all human beings are born free and equal in dignity and rights», which in the context of minority rights means that States must refrain from practices that discriminate against minority groups within their territory.

I would like to draw the attention of Your Excellency’s Government to the International Covenant on Civil and Political Rights, ratified by Spain on 27 April 1977, and its article 27, which states that ethnic, religious or linguistic minorities existing in States parties to the Covenant shall not be denied the right, in community with the other members of their group, to enjoy their own culture and to use their own language.

I wish to recall the obligation of Your Excellency’s Government under the Convention on the Rights of the Child, to which Spain acceded on 6 December 1990 and article 30 of which provides that a child belonging to a minority group shall not be denied the right, together with the members of his or her group, to enjoy his or her own culture or to use his or her own language. Furthermore, according to Article 29 (1) (c) of the Convention, each State Party shall ensure the education of the child, which shall be directed to the development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate and for civilizations different from his or her own.

I would like to refer to the obligation of Your Excellency’s Government under the International Covenant on Economic, Social and Cultural Rights, to which Spain acceded on 27 April 1977, and to article 13 thereof, which recognizes the right of all children not to be discriminated against.

It further provides that education shall be directed to the full development of the human personality and the sense of its dignity and shall promote understanding, tolerance and friendship among all racial, ethnic or religious groups.

In relation to Spain’s obligations under the International Covenant on Economic, Social and Cultural Rights, I would like to draw attention to General Comment No. 21 of the Committee on Economic, Social and Cultural Rights on the right to take part in cultural life, which further reiterates that «States parties should take measures and make every effort to ensure that educational programmes for minorities and indigenous groups are provided in their own language, taking into account the expressed wishes of the communities and relevant international human rights standards».

I would also like to refer Your Excellency’s Government to the International Convention on the Elimination of All Forms of Racial Discrimination, to which Spain acceded on 13 September 1968. Article 5 of this Convention commits States Parties to undertake to prohibit and eliminate racial discrimination and to guarantee the right of everyone, without distinction as to race, color, or national or ethnic origin, to equality before the law in the enjoyment of civil, political, economic, social and cultural rights and, in particular, the right to freedom of opinion and expression and the right to education. According to Article 1 of the Convention, racial discrimination means any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life, including in public schools.

Furthermore, I wish to refer Your Excellency’s Government to its obligations under article 5 of the UNESCO Convention against Discrimination in Education, accepted by Spain on 20 August 1969. Article 5(1) (a) states that education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms, and shall promote understanding, tolerance and friendship among all races. Article 5(1) (c) provides that it is essential to recognize the right of members of national minorities to carry on their own educational activities, including the maintenance of schools and the use of instruction in their own language, while Article 5(2) provides that States Parties to the Convention should take all necessary measures to ensure the application of the principles set forth in paragraph 1 of the Article.

I further recall the 1995 UNESCO Declaration of Principles on Tolerance. In particular, Article 4.2 of the 1995 UNESCO Declaration states that «[e]ducational policies and programmes should contribute to the development of understanding, solidarity and tolerance among individuals, as well as between ethnic, social, cultural, religious and linguistic groups and nations». We also remind Your Excellency’s Government of the UNESCO Universal Declaration on Cultural Diversity, unanimously adopted in 2001, which emphasizes the importance of respecting the human rights of minorities as a central component of «respect for human dignity» in general (art. 4) and which stresses the importance of protecting linguistic diversity «at all levels of education».

I would like to remind Your Excellency’s Government of the international standards derived from the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by consensus on 18 December 1992. Article 2.1 of the Declaration recognizes the right of persons belonging to a minority to «enjoy their own culture, to profess and practice their own religion and to use their own language, in private and in public, freely and without interference or discrimination of any kind». In addition, I draw Your Excellency’s government’s attention to the specific duties of the State in relation to minorities, as set forth in Articles 1, 4.3 and 4.4 of the Declaration. In addition, Article 1 urges States to take measures, legislative and otherwise, to protect the existence and promote the identity of persons belonging to 6 «national or ethnic, cultural, religious and linguistic minorities». More specifically on the linguistic rights of minorities, Article 4.3 of the Declaration urges States to «take appropriate measures to ensure that, wherever possible, persons belonging to minorities may have adequate opportunities to learn their mother tongue or to receive instruction in their mother tongue». Furthermore, Article 4.4 urges States to use education as a means of increasing exchanges of knowledge about «history, traditions, language and culture» between minorities and the national society at large.

First of all, I would like to draw the attention of Your Excellency’s Government to the commentary of the Working Group on Minorities on the implementation of the Declaration. In its interpretation of the duties arising from Article 4.3 of the Declaration, the Working Group concluded that, in cases where a minority language has a territorial character and is spoken by a large number of people in a region of a country, «States should, to the maximum extent of their available resources, ensure that linguistic identity can be preserved». Ideally, this should be done by providing preschool and primary education in the mother tongue of a linguistic minority and by progressively introducing state languages in the later years of schooling.

I also draw attention to the 2020 thematic report to the UN Human Rights Council on «Education, language and human rights of minorities» by the UN Special Rapporteur on minority issues, Mr. Fernand de Varennes, who concluded that inclusive and quality education for members of linguistic minorities means, as far as possible, education in their own language» and that it may be discriminatory to reduce or prohibit education in a minority language where this may be considered unreasonable or unjustified and therefore a violation of international human rights obligations.

In addition, we direct your Excellency’s Government to the recommendations found in the Secretary-General’s 2013 Guidance Note on Racial Discrimination and the Protection of Minorities. In particular, we draw attention to recommendation 13, which calls on States to support the protection of minority languages and identities, as well as recommendation 18, which encourages pluralism and diversity in education, as well as mother tongue and/or bilingual education for minorities.

Above, I draw attention to Linguistic Rights of Linguistic Minorities: a practical guide for implementation, a handbook produced by the UN Special Rapporteur on Minority Issues in 2017. This handbook provides practical advice for States to comply with their international obligations towards linguistic minority groups as part of its recommendations on the provision of public education, the handbook states that «where there is a sufficiently high numerical demand, public education services should be provided in a minority language to an appropriate extent, broadly following a proportional approach. This includes all levels of public education, from kindergarten through college.»

I also draw attention to the recommendations and best practices arising from the outcome documents of the annual UN Forum on 7 Minority Issues and, in particular, the 12th session of the Forum held on 28-29 November 2019 on «Education, Language and Human Rights of Minorities». The Report on its recommendations urges States to pursue the goal of linguistic equality through the provision of «education and teaching in minority languages». The recommendations urge States to safeguard mother tongue education for linguistic minorities «at all levels where feasible» and, significantly, to interpret the feasibility of inclusive and multilingual language education policies «as favorably as possible to the use of the mother tongue as a medium of instruction.»

In addition to the above-mentioned judgments, we would also like to remind His Excellency the Government that, as far as national legislation is concerned, Article 14 of the Constitution on equality before the law does not mention language among the prohibited grounds of discrimination usually found in UN human rights treaties. This could be a cause for concern in relation to the scope it leaves for possible discriminatory practices against linguistic minorities.

Based on the above, I recommend reviewing and reconsidering the rulings of the High Court of Justice of Catalonia that state that Spanish language instruction should be at least 25% of all instruction taught in primary and secondary schools in Catalonia, in order to ensure its compliance with the State’s international human rights obligations.

ANNEX 2

Declaration of Independence of the Catalan Republic Adopted by the Parliament of Catalonia on the 27th of October, 2017 ²¹

La data de publicació és: 27-07-2024