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Spain’s hard line on Catalonia is no way to handle a serious secession crisis

Spain is facing its deepest constitutional crisis since the restoration of democracy in 1977, and it’s only getting deeper. On October 18, the Spanish government invoked Article 155 of the Spanish Constitution, beginning the process of stripping the Catalan government of its autonomy and imposing direct federal rule. Just hours after the announcement was made by the Spanish prime minister, Mariano Rajoy, 450,000 people took to the streets in protest.

Citing the Catalan government’s “conscious and systematic rebellion and disobedience”, this is a heavy-handed response to Catalonia’s recent separatist moves. Spain hardened its line when it jailed the leaders of two of the largest separatist organisations. The national attorney general has now threatened to arrest the Catalan president, Carles Puigdemont, and others for sedition should a further declaration of independence be issued.

These tough measures aren’t just politically risky and pragmatically dubious, but also constitutionally untested. It is the first time that Article 155 has been invoked, allowing the government to intervene in one of Spain’s regions if its autonomous government “fails to fulfil the obligations imposed upon it by the constitution or other laws, or acts in a way seriously prejudicing the general interests of Spain”.

The Constitution of 1978 provides for a flexible and open framework that recognises both “the indissoluble unity of the Spanish nation” and “the right to autonomy of nationalities and regions”. And while the Catalan government’s decision to hold the October 1 referendum undoubtedly violated both the Spanish Constitution and the Catalan Statute of Autonomy, the refusal of the central government to pursue dialogue with the Catalan government, and its attempts to oust democratically elected leaders and suspend regional autonomy will only deepen the antagonism between Catalonia and Madrid.

The question, then, is what an appropriate and reasonable response to this secession claim would look like. And inconveniently, this is something of a grey area.

Taking independence seriously

While international law affirms that peoples have a general right to self-determination, it provides little guidance on how that right should be exercised. It’s particularly vague when it comes to secession, which leaves claims like the Catalans’ in something of a legal vacuum. In its Kosovo opinion of 2010, the International Court of Justice found that a unilateral declaration of independence does “not violate general international law”, but the specific international or domestic legal ramifications of a secessionist claim were left unclear.

The upshot is that different national governments can treat these claims almost as they see fit. The resulting ambiguity is a tricky problem, and it’s played out vividly in two analogous independence movements: Quebec’s and Scotland’s.

In 1995, the Quebecois independence movement lost a referendum on independence by a mere 1.16%. The result kicked off years of political talks and legal wrangling, and in 1998, the Supreme Court of Canada weighed in on whether secession claims were legitimate in principle.

Debating the future of Quebec, 1998. EPA/Paul Chiasson

It concluded that outside of a colonial context and in the absence of severe repression or exclusion from the state, there is no positive entitlement to claim statehood. But it also found that the Canadian state, at least on the basis of its own constitutional law, could not “remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada”. Crucially, the court noted that under the Canadian constitution, the government has a duty to negotiate. Were it to refuse, that could undermine its claim to legitimacy, which could have international ramifications.

Following this logic, were Quebec to vote for independence in some future referendum, that would impose a duty on the federal government and the province alike to enter into negotiations in good faith – though there would be no specific obligation to conclude the negotiations amicably.

Then there’s Scotland. The UK Government took a similar approach to Canada, passing the Edinburgh Agreement in 2012, which granted Scottish nationalists legal authority to stage an independence referendum. They duly did so in 2014. And while that vote ultimately endorsed the status quo, had a majority been in favour of independence, it was largely accepted that the result would have been binding .

Refuse and reject

The Spanish government has chosen to pursue a different course. While the vast majority of Catalans wanted to vote in a referendum, the central authorities have been steadfast in their refusal to allow a vote, or recognise the result, and are now refusing to engage in dialogue with the Catalan authorities.

This intransigence dates back to at least 2010, when the independence campaign emerged in response to a growing dissatisfaction with current constitutional arrangements, a centralisation of the distribution of competences, and the impact of the financial crisis. With the Spanish government not responding to requests for dialogue, the Catalan authorities have for years continually invoked a “right to decide”, derived from a broad reading of self-determination as the right to “democratic management of public affairs”.

Catalans wave their ballot papers during the October 1 referendum. EPA/Alberto Estevez

Legally speaking, it’s a stretch to argue that the principle of self-determination guarantees the right to hold a vote on secession. Nevertheless, the principle of free political participation and representation is clearly established under international law, and it could certainly provide the basis of a demand for dialogue and negotiation where there is broad public support for independence.

Given that there is also scope for seeking dialogue under the Spanish Constitution, this latest sabre-rattling by the Spanish government is unwarranted, as are its actions in recent weeks – threats to arrest Catalan mayors, interference with civic budgets, raids on newspaper office, and mass police deployment including excessive force used by the Spanish police in attempting to prevent the Referendum taking place. These all reinforce the secessionists’ narrative of repression by an anti-Catalan Spanish regime.

For the good of Spain as a whole, a collaborative and productive dialogue needs to begin. The Spanish government’s actions have not yet crossed the threshold of repression that would grant the Catalans a so-called “remedial right” of independence under international law, but its intransigent, hardline approach is inflaming tensions to no end – and enhancing the credibility of the Catalan claim.

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