In the absence of crystal balls my guess as to how the Catalonian crisis will end is as good as anyone’s, but one thing is certain, that it is not going to end well, for either side.
Tennessee Williams’s outstanding play Cat on a Hot Tin Roof, of the troubles within a wealthy Mississippi Delta family coming to the surface, with issues like deceit, greed, apathy, decay and repression, could well have been an allegory for the troubles that beset a family of regions within a nation. And very often treading gingerly on a very hot, thin roof leads to catastrophic results.
The smaller picture of any national or international event gives the impression that it revolves largely around legal crises, while the bigger picture allows one to look deeper, to identify a possible crisis of leadership, vision and stagnant policies, in the face of age-old issues. It is one thing for one to quote the laws, and quite another to interpret them, let alone apply and eventually enforce them.
Spain is pushing its policy on Catalonia on the basis of Spanish constitutional law, while Catalonia is basing its claims on international law. If the latter’s interpretation is right, it may well override Spain’s national law, for in jurisprudence international law is superior. In fact the Secretary General of the United Nations steered clear from calling Catalonia’s move illegal, and did refer to the right of self-determination.
Will Catalonia try to take its case to the International Court of Justice? Would the ICJ recognise Catalonia’s locus standi, that is, its right to be a party to such a case? Would the ICJ be limited to giving just a legal opinion on the matter, which is not actually enforceable? Then again, could Catalonia ever enforce its declared independence without being recognised by the community of nations, which is a prerequisite for statehood?
The Spanish government and constitutional court are right in declaring that the referendum of October 1 was not legal in national law, since the constitution states that such referenda require the approval of the national government. But in reality there are hardly any constitutions in the world that have provisions laid out for regions to declare independence.
This is where international law steps in, with article one of the United Nations Charter forming the basis of the break-up of empires and decolonisation. The European empires did not submit to such a process on the basis of existing national constitutions.
Today’s crisis is actually a result of the Spanish constitutional court having axed 14 important provisions from the revised Catalan Statute of Autonomy in 2010, a statute which had actually been approved by the Spanish Congress in March 2006. To make matters worse the court had declared “the indissoluble unity of the Spanish nation” eight times in its judgement.
So this would prevent even the national government from agreeing on any region’s independence.
In effect Catalonia’s autonomy has been seriously cut back from what was agreed by Spain’s own parliament in Madrid. Is this the way to go or should one have seen more devolution of power rather than less in order to reach a modus vivendi among people, regions and nations?
Sadly, power and wealth are like oil; they always tend to gravitate to the top, rather than mix and blend. Suppressing a region’s desire for more autonomy solves nothing, it only exacerbates a crisis. That is precisely what happened.
Having said all this, for any region to even hope to make a valid claim to break away, it requires a very clear mandate from the majority of its people, but in Catalonia’s case this is unclear. Opinion polls suggest that a majority of Catalans are actually against outright independence, but then again we know that opinion polls can be wrong. Just look at the Trump/Clinton saga.
Suppressing a region’s desire for more autonomy solves nothing, it only exacerbates a crisis. That is precisely what happened
Ideally the nays would not have boycotted the referendum, which would have allowed us to determine the real will of the people. But this was of course part of the strategy, because Madrid did not want to even entertain the idea of having an official outcome from a referendum.
Prime Minister Marjano Rajoy could have avoided the crisis from the start by allowing the referendum to take place while declaring that it is just consultative and not binding, then seek to find middle ground. But it was his party when he was leader of the Opposition that had lodged the appeal to the constitutional court to revoke Catalonia’s new statute that had been approved by the national Parliament during Prime Minister Zapatero’s tenure. People need to know these facts.
Now that Madrid and Barcelona have decided to face off, with the latter declaring independence just hours before Madrid triggered article 155 of the Spanish constitution and impose direct rule on Catalonia, the resulting sticky mess is one of enforcement. Can Catalonia enforce and exercise its independence and disregard Madrid’s attempt at direct rule? Can Spain enforce direct rule in Catalonia?
Disputes can only be settled in one of three ways, judicially, by negotiations and by conflict. Using force rather than negotiating or referring the matter to the ICJ would be a tragedy and itself would go directly against the fundamental principles of the Rule of Law relating to the settlement of disputes.
Forgive me for my cynicism, but the fact that the current Spanish government has refused to negotiate for wider autonomy these past seven years, and actually succeeded in cutting itback, together with the brutal approach of the police on the day of the referendum, do not augur well for the resolution of this dispute without Madrid succumbing to the temptation to use force to settle the matter.
The Spanish Prime Minister keeps alluding to his intention to reinstate the Rule of Law in Catalonia, but his party should never have engineered the cutback on its autonomy. He has brought this crisis upon itself. His lack of wisdom and political acumen are creating more resentment and opposition that will further fan the flames of the proud Catalans.
His calling for a snap election in Catalonia may well backfire, if the separatists make gains. Then what? What if the new Catalan government takes the case to the ICJ?
Rajoy, suppress a rebellion today, you get a revolution tomorrow. Reduce Catalonia’s autonomy and it will fight for independence. People need to see more devolution of power, not less. That is what democracy is all about. It is like any other relationship; if a couple works out its differences, the two stay together, but if suppression makes it unbearable, then it causes blowback, and one side pushes for a total breakup.
Cutting back on Catalan autonomy in 2010 was a bad move, which created a backlash from Barcelona and direct confrontation leading to the current full-blown constitutional crisis. Spain needs great statesmen at the helm, not mediocre and heavy-handed politicians lacking vision who create a crisis that could have so easily been avoided had Catalonia’s 2006 statute of autonomy not been challenged and put through the meat grinder.
Rodolfo Ragonesi is a lawyer and researcher in international affairs.