SCOTLAND and Catalonia would be within their legal rights to pursue their independence aspirations under European human rights legislation, following a precedent set by the German court which refused to extradite former Catalan president Carles Puigdemont for rebellion.

Professor Tom Campbell, an expert in international law at Chapman University in Orange, California, told The National that the German court’s ruling had clear implications for Brexit as Scotland had voted to remain in the UK under the “almost universal” belief that the UK would remain in the European Union.

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The precedent centres on the German decision that a European country cannot punish “non-violent advocacy of self-determination”, even if it leads to a declaration of independence.

In Puigdemont’s case the court said he could only be extradited to face prosecution for the lesser charge of misusing public funds.

Campbell, who has served on the international relations committee of the US Congress and taught international law at Stanford, said the ruling could be sustained by the European Court of Human Rights (ECHR).

He said: “The question that was ruled on by the German court will be precedent – not binding – for whether it is a violation of human rights to try a citizen of a European country and signatory to the [human rights] convention for non-violent advocacy of independence.

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“The parallel would be, ‘should Brexit continue as it appears to be – should Scotland assert its right for a referendum and should the UK refuse?’

“What punishment the UK might threaten on the political leaders of Scotland should they choose to go ahead with an initiative would be quite parallel to the sanctions attempted by Spain against the Catalans.

The European Court of Human Rights in Strasbourg

“At that point it seems to me that Scots would do well to cite the precedent from the German court and take the matter directly to the European Court of Human Rights.”

The academic said it would not be won or lost in court, but in Westminster and on whether or not the UK wanted to make its first major action on leaving the EU “the denial of right, which I predict will be upheld by the European Court, for non-violent advocacy of independence”.

“The precedent is there set by the German court with the extradition request for Mr Puigdemont,” he said.

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“The ECHR will eventually be asked to rule on such as question but it has now been made moot by the Spanish Government’s withdrawal of its extradition request.”

Campbell said he believed that should Spain proceed in trying the nine jailed Catalan pro-independence leaders for rebellion, it would be a public relations disaster.

“I suspect if – contrary to what I predict – the Spanish Government proceeds with trying the nine Catalan independence advocates who did not flee Spain, that they will ask for the intervention of the ECHR, Spain being a signatory to the international convention on human rights – along with the UK.”

As The National reported yesterday, the ECHR has said it is legitimate for a region of a member state to secede, even if it is not provided for in the country’s constitution.

However, the court attached two conditions – that violence should not be used and the societal model to which the territory aspired must be democratic.

Campbell said this was possibly an advisory ruling as it had not featured in the German case, but he added: “It’s precedential for the instance where the government of Scotland might proceed with a second referendum and the UK opposed – I should think the Scots could go to the ECHR.”

He said Scotland and Catalonia would be within their rights to pursue independence peacefully.

“That is consistent with the two decisions. Whether that will be pushed is Westminster’s decision.

“Should the decision be made to go ahead then Prime Minister May will be pressed to answer how she will respond.

“We don’t know yet but obviously she must appease her members and would not concede the point before it happened, but neither did [former Spanish PM Mariano] Rajoy.”

Campbell added: “Sanchez is meeting with President Torra and it appears they are heading to a peaceful and conciliatory resolution, which is unlikely to be Catalan independence but more likely to be substantially increased devolution of authority.

“The call will be a political one by the Prime Minister as to what she will do but should that happen I would suspect the First Minister would take the matter to the European court.”