Five Things to Remember

Given the transcendent nature of this moment, we thought it would be a good time to summarize how we arrived at this point and to explain the special nature of the decision that Catalan Parliament took yesterday.

1. Spain broke its own rules when the Constitutional Court nullified the 2006 statute of Autonomy.

The origins of all that that we have experienced over the last several years can be found in the Spanish Constitutional Court’s decision to strike down key elements of the 2006 Catalan statute of autonomy. Today it is widely recognized that this amounted to a de facto coup against the constitution that broke the judicial balance established at the end of the Francoist era. The relation of power between Spanish centralism and the Catalan Autnomist Government was based on the so-called “two keys”. Should a Catalan desire to alter its regime of autonomy arise, Madrid held the “first key” of being able to demand that the new law pass through Madrid’s legal filters where it would be subject to alteration. Catalonia’s “second key” was the right, should changes be made in Madrid, to reject the altered statute through a referendum. The process was clear, transparent and balanced. One key furnished guarantees to Spain, the other to Catalonia. Each side had a voice in the process. However, the forced entry into the process of a “third key” that had never existed and that was invented by the Popular Party destroyed this constitutional balance and broke the existing conditions of coexistence. The responsibility for bringing us to where we are today lies squarely with the Spanish state which, through its unilateral actions, abolished the pact forged in the transition to democracy.

2. Spain has refused to engage in dialogue with Catalonia about independence or, for that matter, anything else.

Catalonia does not have the right to impose secession upon Spain. Nor does Spain have the right to impose unity upon Catalonia. Should a conflict such as the one that is now being played out in the Principality of Catalonia arise, the only solution is negotiation, as the Supreme Court of Canada made clear in its opinion on the now widely celebrated referendum on the question of independence for Quebec.

Such a negotiation could have taken many forms and could have centered on many different aspects of the impasse. After the first September 11th (Catalan National Day) protests in 2012, the Catalan government proposed that the two sides engage in a renewed dialogue about fiscal matters and cultural rights. This proposal was not only rejected, but treated with open disdain. Catalan political forces have appealed on nearly twenty occasions for a negotiated solution to the celebration a referendum designed to clarify the true political will of the Catalan people. As is the case today, the party that has always refused to negotiate in the recent past has been Madrid. The Spanish state has consistently disdained the core democratic principle that disagreements should be resolved through good faith negotiations that respect the democratic expression of all political projects. This consistent pattern of disdain delegitimates the arguments of the Spanish government.

3. The people of Catalonia gave the Parliament of Catalonia a clear democratic mandate for a Proclamation of Independence.

In elections held on the 27th of September 2015, the citizens of Catalonia awarded the proponents of a program to pursue a proclamation of independence an absolute majority of the seats in the Catalan Parliament. The fact that this result fell just short of 50% of the popular vote has led the members of the winning coalition to the conclusion that they should seek validate their program through that most democratic of methods: a referendum. It has always been hoped that this referendum would be sanctioned through negotiations with the Spanish state. However, this has been impossible to do. It is precisely this refusal on the part of the Spanish Government to negotiate anything that justifies, and imbues with legal force, the unilateral vote that the Catalan Parliament will hold tomorrow. There is currently no other way that the representatives in Parliament can give voice to the political desires the people of Catalonia.

4. International law provides a legal basis for both self-determination and unilateral secession

The right to self-determination of all peoples is an essential element of international legal doctrine. It is an absolute right that trumps national legislation, as is spelled out in the two 1966 UN conventions on human rights which the Spanish constitution recognizes as the supreme law of the land. The Parliament of Catalonia is thus able to legitimately invoke this general principle as the basis for the referendum. In addition, there is the decision of the International Court of Justice regarding Kosovo that definitively resolved two important matters. The first is that there is no provision in international law that invalidates the unilateral proclamation of independence of a territory. The second is that the principle of the inviolability of borders only applies to conflicts between states and thus cannot in any way be used to impede the secession of a part of a state.

5. Recent international practice has given explicit support to processes of national self-determination thus creating a norm characterized by the acceptance of new states within the international community.

A few figures are worth bearing in mind. Since 1991, 53 sub-state entities, like Catalonia, have held referendums on self-determination. Of this total, 27 referendums were carried out in agreement with the states of which the entity seeking self-determination was then part. The other 26 were convened unilaterally. The Spanish state has recognized 26 of the 27 new states constituted in the world since 1991, the majority of which were proclaimed unilaterally. In fact, 7 states that today are part of the European Union were, in 1991, parts of other states and thus in situations quite similar to that of Catalonia today. These 7 European Union member states that were not independent in 1991 (Croatia, Slovakia, Slovenia, Estonia, Latvia, Lithuania and the Czech Republic) were all created through unilateral mobilizations, and in 5 of those cases, through the specific modality of a unilateral referendum. All of them are recognized by Spain and are part of the European Union.

While the European Union has no provision spelling out what is to be done in the case of the secession of a part of a member state, there is a consistent practice when it comes to recognizing the results of referendums on self-determination. For example the EU took important decisions in response to the referendums of the Saar (1955), Greenland (1982) and Brexit (2016), and did not block the referendum in Scotland (2014). All of these referendums were held within the territory of the Union. And as we have seen, it accepted as member 7 states born of unilateral processes while also giving support to the practice of self-determination in cases such as that of Kosovo. This, in clear contradiction to Spain’s current posture in regard to Catalonia.

Summing up: If we have come to this point it is basically because of the legitimacy that the Catalan people bestowed on the Parliament of Catalonia in the September 27th, 2015 elections, and also, the legitimacy that the international community has bestowed upon the right of self-determination. But we have also arrived at this point as the result of the persistent delegitmation of the Spanish position, which flies in the face of international rules and practices as well as the provisions of its own constitution.

Now is the moment to take the next step, conscious both of the civic strength built up over the last decade, and the fact that the international community will react as it always has: by resolving a political problem that cannot be wished away through the deployment of legalistic maneuvering.