CAIRO – 12 November 2017: A sentiment of collective identity has been shared in Catalonia for centuries. Call this what you will, but in the 21st century this form of collective identity which shares a language, a culture, a shared history, is what we call a nation. In the words of Benedict Anderson, a nation is simply an “imagined community,” but the notion of imagined communities and nations now dominate our world. In 2006 Spain finally recognized Catalonia as a “nation,” just still under the authority of the central Spanish government. Nation-states, and occasionally political unions such as the United Kingdom, are the only accepted actors in the institutions which shape our world.
The drive towards independence has accelerated in recent years, and culminated in the October 1 independence referendum. Under the shadow of the central government and the Spanish police, people fought through baton and barrier to cast their vote.
Madrid tried to stop the vote by attempting to block IT systems and sending Spanish riot police to seize ballot votes. The result of this "excessive force" was anarchy, with almost 100 polling stations closed and many hundreds injured. It was a mockery of democracy and democratic values regardless of whom one supports. The result was a resounding victory for the independence movement, with 90 percent voting in favor of independence; albeit, the turnout of the electorate was a controversial 43 percent.
Independence and democracy
A declaration of independence was signed on October 10 at the Parliament of Catalonia, however it was immediately and temporarily suspended to allow for negotiations to take place with Madrid. In the period which followed, Madrid continued to clamp down on the independence movement. On October 27, after the
, the Spanish Prime Minister Mariano Rajoy attained consent from Parliament to impose direct rule over Catalonia; Catalan leader Carles Puigdemont and his entire Cabinet were sacked and charges of rebellion, sedition and misuse of public funds were filed against them.
European arrest warrants for former Catalan President Puigdemont and his cabinet colleagues who fled to Belgium have been issued. As of November 5, Puigdemont and several former advisers have t
. Eight ministers are also being held by the Spanish authorities after they attended a court hearing in Madrid.
The people of Catalonia have voted to break the social contract of the Spanish political community, and secede from the established Spanish central authority. Yet the complications are endless.
Is this a success or failure of democracy? We are yet to know for sure. Catalan officials continue to follow the appropriate channels towards independence, while the Spanish authorities in Madrid stand firmly and refuse to compromise. The more pertinent question is whether Catalonia has a right to independence, and whether the Spanish authorities and the international community have a duty to uphold this right. Yet legal questions of secession differ from the political difficulties. Understanding these fundamental controversies surrounding secession, which are rooted in international law, is essential to grasp the political complications of Catalonia’s aspiration to separate from Spain.
Photo 2: People shout slogans as they wave Catalan pro-independence flags during a protest in Barcelona on October 2, 2017 a day after hundreds were injured in a police crackdown during Catalonia’s banned independence referendum. AFP
In regards to international law and statehood, international law takes a back-seat and simply lays down the rules for the game of power-politics to unfold. This is the case since statehood is generally a political notion, which has thus gained prominence through its entrenchment in international law. Nevertheless, it is essential to understand these rules of the game which set the field of play for the political game of state-building and expansion.
Hierarchy of law
The principal defense put forth by Spanish authorities to refuse Catalonia’s independence is that the separation of the Spanish state violates Spanish constitutional law; and this view has been consistently upheld by the Spanish Constitutional Court. Domestic law clashes with international law and international legal precedence creating a realm of confusion.
The Kosovo and Quebec cases help provide advice regarding the legality of secession. However, it is important to not overstate the importance of legal precedence.
“At the formal level, international law doesn’t offer a system of precedence,” said Jason Beckett, professor of international law and international human rights law at the American University in Cairo, to Egypt Today. “Formally speaking, court decisions do not fit into international law, but lawyers like to quote it.”
This clash of laws raises the question of the hierarchy of law, and which legal order dictates the rules in an act of secession.
International law does not address sub-state units, such as Catalonia; it applies to established states such as Spain. Thus, the rules in play do not apply to both in the same manner. International laws are developed by states, for states, to dictate the essential respect between states to maintain the global order. It generally accepts the territorial integrity of states, however since international law does not apply to sub-state collectives this is not a prohibition of sub-state independence.
Photo 3: Sacked Catalan leader Puigdemont says he's not in Brussels to seek political asylum. Reuters/ Eric Vidal
However, just because sub-state secession is not prohibited does not mean there is a positive right to secession. A positive right in this sense means that one has a legal privilege to pursue their aims. Not being prohibited is good only if one is successful; it is a matter of effectiveness which accordingly relies on hindsight to judge its worth.
Although not illegal under international law, a matter of independence is politically very difficult. The absence of positive rights makes secession a difficult process since there is no vehicle for Catalonia to appropriate cleaning the dusty path on the road to independence.
Since the Treaty of Westphalia in 1648, the order of nation-states as the prevailing blocks in the international order has moved from notion, to reality. In our modern world, new states can only come into existence at the expense of the territorial integrity of a sovereign state. In the case of a bilateral secession, the process is usually amicable as the central state waives its claim to sovereignty over a particular territory and permits the will of the people to prevail. This was the case in 2014, when Westminster allowed Scotland to hold a referendum addressing independence from the United Kingdom. In the case of Catalonia however, Spain has been firmly against independence meaning any declaration of independence is wholly unilateral.
Unilateral independence
Unilateral declarations of independence are not illegal per se. The International Court of Justice, in paragraph 81 of its 2010 Kosovo Advisory Opinion (KAO) argued that unilateral independence is not illegal in being, but may have illegality attached to it. The KAO also confirmed that the notion of territorial disruption only applies in the inter-state context, and does not apply internally: “The principle of territorial integrity is confined to the sphere of relations between states.”
Photo 4: Kosovans celebrate independence in 2008. Only 69 countries recognised their declaration. AFP/Dimitar Dilkoff
Paragraph 122 of the KAO found that a unilateral declaration of independence does “not violate general international law” if a declaration is not “connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens).”
Albeit, “international law presumptions are very strongly against unilateral independence,” said Beckett.
In accordance with paragraph 155 of the Quebec Case (QC), in the case of a unilateral declaration, international recognition is essential to gain legitimacy and thus success.
This notion is generally accepted as a matter of principal. Recognition is necessary to participate in foreign relations and in international institutions which mediate the global order. A state must show that it has the capacity and the competence to engage in foreign relations.
International law, in this sense, is neutral on the secession question; however states in general want to maintain territorial integrity as it sets a precedence which may help preserve the unity of one’s state in the future. Recognizing Catalonia as an independent state is riddled with difficulties, and will prove a political nightmare; a nightmare heightened by the obligations of states to
.
Self-determination
The fundamental international right underpinning Catalonia’s independence aspiration is the notion of self-determination, laid out in the UN Charter.
Chapter one, article two of the UN Charter:
To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.
The Charter stipulates that all peoples have the right to self-determination. They possess the right to freely determine their political status and freely pursue their economic, social and cultural development. Yet the power of this doctrine is restricted.
Many cases have shown that self-determination is limited to the colonial context, within the boundaries of uti possidentis. Catalonia clearly lies beyond this scope.
Beckett upholds this skeptical view of self-determination: “No one’s really sure why self-determination is in the UN Charter; how it got there or what it means.”
“Self-determination is a concept which no state likes, which is why there was such an effort to contain it in the de-colonization moment,” he continued.
Yet a fundamental principle of democracy is that the governing body is contracted by the will of the people. A declaration of independence marks the moment at which a collective removes itself from the central authority and from the legal, political, economic and social order from which it previously existed. If this is the will of the people and if it was decided through a referendum, then a legal entitlement does exist.
Photo 5: Young "YES" supporters, wearing frocks with the French word "OUI", walk outside a rally in Quebec City, in this October 29, 1995 file picture. REUTERS/Shaun Best
Although there is no constitutional entitlement to self-determination, the state cannot “remain indifferent to the clear expression of a clear majority,” as said in paragraph 87 of the QC. Should the clear majority of people choose the goal of secession and the seceding entity respect the right of others? The central government and domestic actors involved cannot deny the right to independence. Thus, under the banner of democratic values, the Spanish state should respect the democratic will of the people if the seceding authority has not violated the rights of the people.
This criterion has been fulfilled by the Catalan authorities: they have both acted upon the will of the people, have not impeded the rights of individuals and more importantly, have not committed jus cogens violations. Some people would argue whether a 43 percent turnout does truly represent the will of the people; however, others would argue that it is the fault of the electorate for not participating in the democratic process.
Changing the social contract requires a democratic vote. A free, fair and transparent referendum process must effectively and conclusively represent the will of the people. This electoral process took place. More importantly, it took place following an extended period of negotiations.
Negotiations and human rights
The Supreme Court of Canada highlighted that negotiations are the essential mechanism to uphold the rights of both the seceding entity and the central authority. Both parties are required to negotiate in good faith to find a mutually consented settlement.
“The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed. There would be no conclusions predetermined by law on any issue,” said paragraph 151 of the QC.
Photo 6: Violence broke out as voters took to the polls. AFP/ Pau Barrena
The democratic will expressed by the people of Catalonia to secede establishes a duty on both sides to negotiate the future relationship. Independence declarations do not simply announce immediate unilateral independence, but they should trigger democratic deliberation between both sides. Catalan officials have attempted this; however, Spain has not, and will not negotiate on the issue of Catalonia’s independence. Instead, it insists on compliance with the national constitution.
In regards to human rights violations, these have not been committed thus far by individuals or entities representing Catalonia. In contrast, violations on the Spanish side of the aisle have infected efforts to prevent the referendum and spoiled the reputation of the central government. How can it claim to protect the right of all citizens in Spain if it abuses those who take part in an unfavorable democratic process?
“Self-determination does not prejudice the territorial integrity of a state that doesn’t discriminate against or oppress their people,” said Beckett. “The reaction [by the Spanish police] afterwards doesn’t reach the standards usually spoken about in self-determination discourses.”
Although disapproving of the term, Beckett said that the experience in Catalonia didn’t fall under the notion of “real oppression.”
As violent reprisals and the uncompromising position of the Spanish persist, the opportunity for Catalonia to invoke the doctrine of remedial secession improves. The exploitation of the Catalan people only helps to serve the moral right of resistance to Madrid, and to demand independence.
The legal arguments surrounding independence are intertwined and often conflicting. Although Catalonia may not have a legal right to independence, this is not to say that Catalonia is doing anything illegal per se when declaring independence; especially given the specific circumstances. While international law sets the field of play, the game is played primarily in political circles.
The European Union
The EU and its “ever-closer union” plays an incredibly important role with all its member states. The EU is facing an uphill struggle with the Brexit negotiations and the crisis in Catalonia running in tangent. The EU will be scrutinized at every step in play. This crisis is a major threat to the functionality and principles of the EU and many argue this is a fundamental challenge to the future existence of the union in its current form.
Typical of Brussels when facing a major issue within a member state, the EU has largely ignored and failed to comment on what is going on in Spain. A fundamental issue with the EU is that is does not have an intellectual framework. It wants to overcome the nation-state – bypass state sovereignty – and be a supranational organization.
“Europe needs to decide whether it’s a federation, or a confederation, or a confederation of nation-states,” said Brendan Simms aptly on the “Talking Politics” podcast.
Currently however, the EU is a collection of 28 nation-states, expected to be 27 in March 2019 but at the moment, your guess is as good as mine. Regardless, the EU is a collection of member-states and thus has a bias towards member states. Catalonia is not a member of the EU, but Spain is. Thus the EU’s obligations are to support Spain and not Catalonia. Spain is aware of this, which may be a reason for its accelerated use of violent and unjust coercion against Catalan people and officials.
“Beating up old ladies on camera is a hard sell anyway, but I don’t think it’ll harm Spain, maybe just the Rajoy government,” said Beckett. “If the government had just ignored the referendum completely, we wouldn’t be talking about it anymore. The only reason we are still talking about it was because of their idiotic reaction.”
Yet Rajoy knows the EU will be on Spain’s side. Spain is adamant about the maintenance of territorial integrity, just as the EU is. It is crucial that the EU’s institutions are efficient and successful in dealing with the major challenges from Brexit and Spain, and ensure that they do not reignite another European debt crisis. Spain was at the core of the crisis in 2012, and although it has pulled away a bit, this could throw them into economic ruin once more. This is not helped by the economic prosperity in Catalonia. If Catalonia secedes, it will take 20 percent of Spain’s revenue with it based on GDP statistics from 2016.
Spain has emerged as a privileged member of the EU in the fallout of the European debt crisis. With the promise of extensive economic loans to help recover the Spanish and Italian economies, the European Central Bank (ECB) required that both countries pass certain legislature and austerity measures to help nurse their economies back to health. Neither country followed through. No action was taken against Spain. However in Italy, EU pressure prevailed. Merkel, Sarkozy and the ECB president forced Berlusconi’s removal from power.
Spain is consistently let off the hook. EU fiscal policy demands are often ignored, yet Spain still reaps the benefits of EU aid. Thus, Spain knows it can look to the EU for support. The EU can pressure member-states into refusing to recognize Catalonia if unilateral independence becomes a confirmed reality, and Spain has veto power to deny a Catalan bid for EU membership.
Photo 7: Catalan President Carles Puigdemont Reuters/Albert Gea
The EU’s closed mouth over Catalonia may prove to be the union’s downfall. The EU claims to exist for the rights of every individual, yet it failed to respond to the abuse carried out by Spain’s police against mostly peaceful civilians. The images of police abuse spread around the globe immediately; how can the EU claim to protect the EU’s citizens’ rights? This silence will only bolster EU-skeptics.
The strength of the EU and the
are not only in the interest of member-states. The whole world looks to the EU as a major economic power and an integral part of an integrated, globalized world economy.
However, things are not looking good. The global financial crash was followed by economic catastrophes in several member states, then Brexit began and now Catalonia.
“It is beginning to look like there is a pattern which is very bad news for the EU,” said Beckett.
What will come of Catalonia’s struggle for independence is uncertain. Spain’s strong hand is suppressing attempts at every angle, while the EU will quietly support Spain at every turn. Catalonia must play the clever political game. Up until now, Catalonia has morality on its side, and sympathy from many sides of the world. Yet Catalonia doesn’t need support from the average Joe, Catalonia needs state support and recognition.
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