Catalonia: the right to self-determination and the rule of law

Catalonia has become a gunpowder and seems to be exploding, as after the first of October 2017, the situation between the central state and the autonomous government has been glowing and does not seem to prove real ways of exit. This article will try to go through the affairs of the Catalan independence, clarify the legal situation that emerges and ultimately seek to understand the political reasons which make the negotiation and management of the problem of Catalan independence so complex.

Catalonia, a history between the region and the nation

The history of Catalan independence begins during the Spanish succession war, as a feeling of independence emerged but remained latent for years. From the 18th century onwards there are chronicles of this feeling and throughout the 19th century there are stories of Catalans who want greater independence and recognition of their culture. Appeared at that time: political and cultural movements, organizations and real catalanist parties. This catalanist ferment, albeit strongly repressed, managed to present its lists to each election until 1922, always obtaining excellent results, a sign of the representativeness of the movements within the Catalan population.

Under the reign of Alfonso XIII there were two moments of strong repression in Catalonia to be noted: in 1905 dozens of soldiers rushed the seat of the Catalan satirical magazine Cu-Cut!, destroying it. In 1909 there was the so called Semana Tragica, a week of clashes due to the general strike invoked by Catalan workers refusing compulsory enrollment in the Spanish army. The « tragic week » left 78 dead and over 500 wounded on the ground, five of the arrested were condemned to death, 59 were imprisoned for life and 175 condemned to exile.

During the years of the dictatorship of Primo de Rivera, repression against the pro-independence and catalan workers was hard, all who posed a threat to the unity of the Spanish state were severely punished. Opposition to the anti-Catalan policy of the dictator came from many social partners such as the clergy, sports associations and also from the Association of Lawyers of Barcelona. As far as catalanist politicians were concerned, they planned some armed insurrections during the years of that first dictatorship, only in vain.

At the time of the birth of the Second Spanish Republic (1931-1939), the leaders of the « Estat Català« , coalition of Catalan parties, also proclaimed the birth of the Generalitat de Catalunya, which would move within the new Spanish state. Francesc Macià and Lluis Companys led Catalonia from the Republic’s birth until the end of the civil war, crossed the difficult period of the promulgation of the first Catalan Statute and demonstrated to be autonomists in the idea of a plurinational Spain but never separatist. However, during the Civil War, the army guided by Francisco Franco identified itself as « los nacionales« , with the idea of defending the unity of the Spanish state from the secessionist danger.

During the years of dictatorship, it was precisely this idea of plurinationalism which was repressed and fought, the franquistas considered it the biggest anti-Spanish idea, against that centralized nationalism which instead represented the ideology of the regime. The repression against the Catalans was hard, just think that 4000 were condemned to death between 1938 and 1953 in Catalonia, among which the former President Lluis Companys, captured by the Gestapo in France and shot on 7^th October 1940 by the franquistas. For historian Josep Benet, franquismo was a real « cultural genocide » with the persecution of the language, culture and symbols of the Catalan identity.

Only in the last few years of Franco’s dictatorship the Catalan identity has begun to re-emerge, at the beginning of the transition and the constituent period the popular pressure has risen sharply and, although still repressed, has already led a majority of catalanists among the elected in the region at the first free elections after the dictatorship.

In 1979 the first Statute of Catalan Autonomy was approved, after the Spanish Government amended it strongly by cutting off part of the requests of the Generalitat de Catalunya. This Statute will remain in force for 27 years, twenty-three of which passed under the Government of Jordi Pujol and his center-right catalanist party Convergencia ì Uniò. Only in the 2003 elections, a pact between three parties will lead the Catalan government to the center-left, for the first time since 1936, under the leadership of the socialist Pasqual Maragall.

The 2006 reform of the Statute and the nationalists’ growth

Maragall’s tripartite government, composed by the Catalan Socialist Party, the Catalan Republican Left and the Catalan Green Party, found the government’s own agreement on the reform of the Statute of Autonomy and worked on it for two years. In 2005 the Statute was presented, the one which should have been approved by the national parliament. The points that generated most discussions in Spain were the definition of « Nation » for Catalonia and the part on the taxation system that assimilated the new Catalan system to that of the regions of the Basque Country and Navarre.

The People’s Party, leaded by Mariano Rajoy, strongly criticized this Statute and the idea that it gave a federalist character to the Spanish state. Rajoy started a collection of signatures against this new Statute with a phrase indicative of the level of ideological clash: <<Écheme aquí una firmita contra Cataluña>>, literally “leave me here a sign against Catalonia”. In June 2006, Catalonia voted for the third time for the approval of a Statute of autonomy, after the approvals of 1931 and 1979, also this time the Catalans legally approved the new Statute.

The path of constitutional recourse made by the PP ended in 2010 with the cancellation because of the unconstitutionality of 14 Articles of the Statute and the submission to the Constitutional Court’s interpretation of another 8 articles and two provisions. Since 2011, Mariano Rajoy is also the new head of government, one of the most intransigent Spanish politicians with regard to catalanist demands. According to a survey conducted by Podemos in this period, the percentage of pro-independence voters in Catalonia grew from the 14% in 2006, to about 30% in 2011 after the cancellation of the Statute, to 47% in 2017.

Since then, citizens have been called to vote again on the future of Catalonia twice: in 2014, legally called by President Artur Mas in a « participatory consultation on the future of Catalonia » and in 2017 in the referendum, considered illegal by the Spanish state, convened by President Carles Puigdemont on the first October, 2017.

Self-determination of peoples and Catalan reality

Self-determination of peoples is a fundamental principle of contemporary international law, by virtue of which all peoples have the right to decide independently of their own political, economic and social order. Although this principle has become part of the core of norms which are indispensable to the protection of fundamental values of the international community, it continues to be characterized by margins of legal uncertainty, both in terms of the subjective scope of application, particularly with respect to the identification of target groups of the corresponding right; both regard the possibility that this right may be exercised outside the colonial context in order to lead to the creation of a new state.

Born as a legal principle codified precisely in the context of post-World War II decolonization, it is only the driving force of African and Asian independent movements to transform the principle of self-determination into a real right that peoples of the colonies will exert after the resolutions of the UN of 1960. For many years he was therefore anchored in the external factor when self-determination was used against occupying or colonizing peoples. However, after the fall of the Soviet Union, the right to self-determination began to widen its meaning, the European Union, not nominating the right to self-determination, enshrined the rights of national minorities in two documents: the European Charter for Regional or Minority Languages of 1992 and the Framework Convention for the Protection of National Minorities of 1995.

International law does not recognize the hypothesis that the application of the right to self-determination could be possible for a national minority because it is not considered like the population of a State, but there is a hypothesis which is worth analyzing in relation to the current situation in Catalonia. It is the one in which a State itself recognizes the right to self-determination of several « constituent » peoples; in these cases, as the Badinter Commission points out in its Opinion no. 2 on the right to self-determination of Serbs populations in Croatia and Bosnia-Herzegovina, the constituent people have the right to exercise their own self-determination within the established boundaries; consequently, the revocation of fundamental prerogatives recognized by the domestic law of the State in favor of a constituent people may constitute a violation to the right of self-determination.

The Spanish Constitution and the autonomies

However, considering the current situation in Catalonia, the right to self-determination of peoples cannot be easily called into question, as it is the most complex right to demonstrate. The Spanish State and the international community will certainly be unable to accept this on the basis of a negotiation that is problematic to begin and in which the central State believes it is in full constitutional right. The Spanish Constitution is therefore the basis of the claims made by the central State on the secessionist feelings of Catalans, but in reality the law is always a tool of politics which it is bent to its interpretation and on the change of themes and this should never be forgotten.

Article 2 of the Spanish Constitution reads: “The Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible country of all Spaniards; it recognizes and guarantees the right to autonomy of the nationalities and regions of which it is composed, and the solidarity amongst them all”.

Article 2 is the focal point of all the Catalan situation, a nation of indissoluble unity that recognizes being composed of a plurality of nationalities. A nation that cannot recognize and accept constitutionally a pro-independence referendum. Based on Article 2, the Spanish Constitutional Court ruled that the Catalan referendum was absolutely unconstitutional. This article, however, which speaks of « plurality of nationalities », opens up the debate on the right of self-determination of the « constituent peoples » that the Badinter Commission has defined for the peoples of the former Yugoslavia and for Croatia and Bosnia and Herzegovina.

From the juridical point of view, the non-validity and the unconstitutionality of the referendum is reinforced by two other articles of the Constitution: the number 92 which specifies that the referendum need to be invoked by the King, upon a government proposal and Congress approval; and number 149.32, which states that Referendums of any nature are purely governmental prerogatives and can in no case be invoked by regional authorities.

The position of the government is a consequence of this legal point, these three articles are called into question to justify the central State’s reaction to the referendum call on October 1^st. Moreover, the Spanish Constitution provides for another norm that at this time is central to political debate: this is Article no. 155 borrowed directly from the German constitution. This article allows the central government, if autonomy does not comply with the law, to take control of regional institutions and to reallocate their policies to Central State policy.

Therefore, in this constitutional system, the central state can take back the control of an autonomy that is moving away from the constitutional path, by force. The Rajoy government, with the support of the Socialist party and Ciudadanos party, decided to activate Article 155, and so during October begin the procedures for taking control of Catalonia’s government, administration and regional police forces.

The political situation and the Referendum of the 1^st of October

Catalonia, Spain and Europe in the last months of 2017 are experiencing a political crisis that could not have been imagined before. The fact that it is obvious to external observers is that what is present in Catalonia is a purely political crisis, composed by different realities that have been existing for centuries, but that in recent years have found themselves in a growing climate of tension and contrast. The worst side of this moment is that it is difficult to understand what the true feelings of the Catalans and the Spaniards are and whether they are really represented by their current rulers.

The 1^st of October 2017, when Puigdemont convened the referendum for independence, he did it without the parties talking with each other. On the one hand Rajoy’s government of the Partido Popular has been intransigent to the Catalans, he has never opened a moment for dialogue after the Catalan Statute has been cancelled by the Constitutional Court. As far as Catalonia is concerned, however, the independent movement has grown more and more, in part for purely populist propaganda and partly for a real need to be listen by the central Govern.

The tensions that are now happening in Catalonia are also dependent on how the central state which has decided to face the secessionists on the days of the referendum. For example, the arrest of two activists, Jordi Sànchez and Jordi Cuixart, promoters of pro-independence demonstrations on September 20^th and 21^st, and the fact that their stay in prison, without the possibility to pay a bail, was confirmed by a judge of Audiencia Nacional. The contested offense is « sedition » and some Spanish lawmakers have pointed out that it was an unlawful detention since this offense is not directly controversial at the level of judgment of Audiencia Nacional. Practically after a month in prison it is still unclear whether the two arrested may stay in jail for that offense.

The charges that the police made on voters on 1^st October were the reason why most of them have brought to light the situation in Catalonia. Newspapers around the world have written during these days about the 900 injured by the police in the queues to vote. It is hard to explain this violence by the Spanish police on people who, even if outside the law, were just expressing their ideas in a peaceful and orderly manner. This kind of reaction completely agitated by the government to a referendum that, being of no legal value, could only be a provocation to the Central State which has plunged into the events. The Catalan parliament and its president found themselves in a blind alley, almost obliged to proclaim independence in order not to lose their faces in front of their electorate. Catalans, even less convinced by the need for independence, have been overwhelmed by unjustified violence, and probably the number of convicted secessionists has now grown even further.

The result of this lack of dialogue was a total polarization of positions: Rajoy gained votes in his natural basin, that of conservative Spaniards, convicted monarchists and Spanish nationalists, adversely to any form of minor nationalism such as Catalans, Basques and Galicians. King Felipe VI has supported this faction with a public message to the kingdom, contesting the secessionists who acted illegally and not inviting the parties to dialogue. Puigdemont’s Catalan government, on the other hand, has been forced into a false declaration of independence, immediately retracted to seek some form of dialogue against the central government wall. Meanwhile, the Catalan population is less and less represented, as the lack of dialogue between institutions has polarized ideas. Every day there are more people for independence, people who feel less Spanish and others who feel that the secessionists are taking them to the edge of the cliff.

The future prospects, what can happen in Spain

According to the Government of Madrid, with the activation of Article 155 of the Constitution, legality will be restored in Catalonia. By controlling the political power, administration, police, information and education of the Generalitat de Catalunya, Rajoy thinks he can turn off all the pro-independence spirits of the region. This judicial review will, however, be done on people, Catalans, who have clear political ideas and probably some of them will be formed by the secessionists who voted on the first October to leave Spain. How will the central government ensure that order is restored?

The first idea has to do with a system of administrative and penal sanctions for all those who will not respect the orders of Madrid. In this context, the Catalan Parliament will be dissolved and will be renewed only in a few months with new elections, that should take place when the legality is restored. The possibility that this legal but peaceful system of imposition does not work seems obvious, some pro-independence parties have already called for civil disobedience, and the idea that any sanctions and reprisals increase anti-Spanish sentiment seems simply the reality. It may happen that even if everything goes in the best way for Madrid, in the upcoming Catalan elections, the secessionists should get an even bigger majority than they have today, and inevitably reopens disputes over the independence of the region.

It is therefore clear that constitutional reform is the only way to solve the Catalan issue and the issues of nationalities coming from many Spanish regions. Precisely with the hypothesis of a reform of the Constitution, the PSOE has endorsed the activation of Article 155 with all the risks involved in the forced removal of a democratically elected regional government. Because this is one thing to remember, Puigdemont’s government, though not representing the absolute majority of Catalans, got the majority of seats needed to form a government, he is not a guerrilla one who took power with a coup d’état, but a politician elected by regular elections. Its removal is consequently a suspension of the system that in Catalonia has so far been commonly considered the democratic system.

A political crisis such as the Catalan could only be solved by a constitutional reform, shared by representatives of the many souls that make up a complex democracy like the Spanish one. Many souls needing to include pro-independence and pro-autonomy people in many regions, with the aim of expanding the democratic rights of all those populations. Only with this idea could a peaceful and definitive solution to the Catalan crisis be reached. In the perspective of a probably more federal state than what is now Spain, but certainly where from the Catalans, the Basques to the inhabitants of the Canaries, can feel more represented and protected. The risk of excluding some of the representatives of the autonomies could instead lead to a rejection of the new constitution and the continuation of the discontent that the referendum of 1^st October has highlighted.

What could the European Union do?

Until today the declarations of major European policymakers have been clear, especially EPP representatives have supported the intransigent line by Mariano Rajoy, totally excluding the possibility of mediation by European institutions. Tusk, Tajani, Timmermans and the President of the Commission, Mr. Junker, have reiterated this concept, also the Presidents of France and Slovenia, Macron and Cerar, have followed the line of non-mediation and the minimization of the Catalan crisis to « internal affairs ». The reality is that the Catalan crisis, if not resolved as soon as possible – by leveraging politics on legal issues – could cause for the European Union, as well as of course for Spain, a great instability as much as Brexit.

European institutions could understand that mediation is still possible and bargaining for a more federal, but still united Spain is the only way to resolve the crisis. Of course, this mediation could lead to the political defeat of Mariano Rajoy, but would not he be equally defeated if Catalonia made a Unilateral Declaration of Independence? And in that case, the European Institutions would also be defeated alongside him, by not intervening in the mediation of a more democratic and federal new Spanish Constitution.

Tancredi Marini

Update on 01/11 :

This article was written before October 27^th, that day the Catalan Parliament voted for the Independence of Catalonia. On the same day, the Spanish Senate approved the activation of the Article 155 of the Constitution, the Rajoy Government then removed the Puigdemont regional government, dissolved the Catalan parliament and replaced the Catalan police chief. Rajoy summoned the election for the forthcoming Catalan parliament for December 21^st, and by November 6^th, candidate lists and coalitions will be submitted. The participation of secessionist parties: the ERC, the PDeCAT and the CUP will determine how much the social tension will rise in the coming months, which will certainly be difficult for Catalonia, Spain and Europe.

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For further information

• Claret, Jaume; Santirso, Manuel (2014). La construcción del catalanismo. Historia de un afán político. Madrid: Los Libros de la Catarata.
• Bel, Germà (2013). Anatomía de un desencuentro. La Cataluña que es y la España que no pudo ser. Barcelona: Destino.
• Gonzàlez Calleja, Eduardo (2005). «Bon cop de falg!» Mitos e imaginarios bélicos en la cultura del catalanismo: http://www.cepc.gob.es/publicaciones/revistas/revistaselectronicas?IDR=9&IDN=643&IDA=26778
• Sentencia del Tribunal Constitucional 31/2010, del 28 Junio 2010
• Allain Pellet (1992). “The Opinions of the Badinter Arbitration Committee: A Second Breath for the Self-Determination of Peoples”. European Journal of International Law. 3 (1): 178–185
• Constitution of Spain, 1978
• Sul reato di sedizione: https://twitter.com/JUc3m/status/920653327611908097
• Bulletin Quotidien Europe – Agenceurope: Numbers 11887, 11883, 11879, 11878, 11876
• Podemos, El conflicto en Catalunya en dos minutos: https://www.youtube.com/watch?v=Y-cRmqQ0efo
• es, news and articles.
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• gov.es, official declaration of the Govern.
• King Felipe IV’s speech to the nation.