The Catalan Process 3 El Desenvolupament De L’Autogovern Borders Drawn in Pre-Democratic Times

Home , Catalan nationalism, Michel Seymour

TITLES IN THE COLLECTION 5 5

1 Nous governs locals: regeneració política Col·lecció Institut d’Estudis de l’Autogovern I 5 i estabilitat pressupostària Alfredo Galán Galán (coord.)

2 Why Languages Matter to People: Communication, identity and justice in western democracies. The case of mixed societies Elvira Riera Gil Recent developments in Europe suggest that the dynamic of globalization and transnational integration rather fuels than obstructs aspirations to alter political The Catalan Process 3 El desenvolupament de l’autogovern borders drawn in pre-democratic times. All evidence at hand at present indicates en matèria de territori, paisatge, litoral that self-determination will continue to be one of the most pressing issues on the i urbanisme world’s political agenda. The demands for sovereignty articulated over the last Sovereignty, Self-Determination Joan Manuel Trayter Jiménez (dir.) ten years in Catalonia are an obvious manifestation of this trend. However, the Catalan “process” is a complex phenomenon. This book aims at helping the reader and Democracy in the 21st Century 4 Transparencia y rendición de to grasp and interpret this complexity. It brings into focus those political events cuentas de las relaciones de cooperación and constellations in Catalonia’s recent history that are central for an appropriate intergubernamental en el Estado understanding of the process. The book also shows that the process has a political autonómico relevance that goes way beyond the Spanish-Catalan context and relates to key María Jesús García Morales issues concerning the interplay of democracy, sovereignty and statehood in the Peter A. Kraus & Joan Vergés Gifra (eds.) 21st century. The main rationale underlying the different views presented in this volume is precisely the conviction that what has been, and still is, going on in Catalonia opens up important insights when it comes to grasping some of the

most salient challenges democratic governance faces in an age that – in Europe The Catalan Process as in other parts of the world – combines identity politics and globalism in often surprising ways.

ISBN 978-84-393-9610-9

9 7 8 8 4 3 9 3 9 6 1 0 9

The Catalan Process

Col·lecció Institut d’Estudis de l’Autogovern I 5

The Catalan Process Sovereignty, Self-Determination and Democracy in the 21st Century

Peter A. Kraus & Joan Vergés Gifra (eds.) Albert Branchadell Laura Cappuccio Alain-G. Gagnon Jaume López Hèctor López Bofill Lluís Pérez Ferran Requejo Marc Sanjaume-Calvet Ivan Serrano Michel Seymour Neus Torbisco Casals

Barcelona 2017 Biblioteca de Catalunya. Dades CIP:

TheCatalan process : sovereignty, self-determination and democracy in the 21st century. – (Col·lecció Institut d’Estudis de l’Autogovern ; 5) Bibliografia. – Conté: Introduction / Peter A. Kraus, Joan Vergés Gifra -- Peoples and their right to self-determination / Michel Seymour -- The ultimate check / Lluís Pérez -- Liberal democracies, federalism and national pluralism / Ferran Requejo -- Democratizing sovereignty / Peter A. Kraus -- The right to decide / Jaume López -- Normative views in practice / Ivan Serrano -- Secession, democracy and power / Hèctor López Bofill -- Post-secession duties / Albert Branchadell -- National minorities, self-determination and human rights / Neus Torbisco Casals -- Sovereignty, fragility and time in the Catalan process / Joan Vergés Gifra -- Sovereignty and autonomy in the case law of the Italian and Spanish Constitutional Courts / Laura Cappuccio -- Clash of legitimacies in Catalonia and Spain / Alain-G. Gagnon and Marc Sanjaume-Calvet ISBN 9788439396109. – ISBN 9788439396116 (PDF). – ISBN 9788439396123 (EPUB) I. Kraus, Peter A., editor literari II. Vergés Gifra, Joan, 1972- editor literari III. Institut d’Estudis de l’Autogovern (Catalunya) IV. Col·lecció: Col·lecció Institut d’Estudis de l’Autogovern ; 5 1. Autodeterminació nacional – Catalunya 2. Sobirania – Catalunya 3. Independència – Catalunya 4. Secessió – Catalunya 5. Democràcia – Catalunya 323.17(460.23)”20” 321.011(460.23)”20” 321.7(460.23)”20”

The IEA’s decision to publish this book does not imply any responsibility for its content.

Design: Addenda ISBN:. 978-84-393-9610-9 (print) 978-84-393-9611-6 (pdf) 978-84-393-9612-3 (epub) Legal deposit number: B 24600-2017 Production: Entitat Autònoma del Diari Oficial i de Publicacions Typeset in Calendas Plus

This work is licensed under a Creative Commons Attribution- NonCommercial-NoDerivatives (cc by-nc-nd) license. Contents

1. Introduction 11 Peter A. Kraus, Joan Vergés Gifra 1.1. A Context of Crisis 12 1.2. The 2006 Statute of Autonomy 13 1.3. The Ruling of the Constitutional Court and the Start of the Process 15 1.4. Mass Mobilizations 15 1.5. Catalan Institutions and the Process 16 1.6. The Consultation of November 9, 2014 (9N) 17 1.7. The “Plebiscitary” Elections and the Process, Today 18 1.8. Old Grievances, New Politics 20 1.9. The Non-Obsolescence of Secession 21 1.10. The Process in the Context of the Post-Francoist State 22 1.11. Plan of the Book 25 References 27

2. Peoples and Their Right to Self-Determination 29 Michel Seymour 2.1. What Is The Problem? 30 2.2. What Kinds of Populations Are already Identified as Peoples? 35 2.3. A Terminological Caveat 39 2.4. Defining Peoples and Other National Groups 41 2.5. Internal Self-Determination 43 2.6. From Internal Self-Determination to Secession 46 2.7. Conclusion 50 References 51

3. The Ultimate Check: Republicanism, Multinational Federations and Right to Secession 53 Lluís Pérez 3.1. Republicanism and Secession 54 3.1.1. What Does “Republicanism” Mean? 54 3.1.2. Secession Conflicts and Domination 56 6

3.2. Size, Freedom and the Federal Republic 58 3.2.1. The Size of the Republic 58 3.2.2. Federation as Negarchy 60 3.3. Multinational Federal Arrangements as an Alternative to Secession 62 3.3.1. What Is a Multinational Federation? 62 3.3.2. Multinational Federations and the Threat of Permanent Majorities 64 3.4. A Non-Unilateral Right of Secession as a Federal Check 66 3.5. Right of Secession in Catalonia: The Only Path (if Any) to the Third Way 70 3.6. Conclusion 74 References 74

4. Liberal Democracies, Federalism and National Pluralism: Walking from Kant to Hegel 77 Ferran Requejo 4.1. Introduction 77 4.2. Plurinational Federalism: A Comparative Approach 78 4.3. National Pluralism, Secession and Political Liberalism 85 4.3.1. Theories of Secession 85 4.3.2. National Pluralism, Recognition and Political Accommodation: A Little Bit of Political Philosophy 90 References 95

5. Democratizing Sovereignty: the Catalan “Process” in a Theoretical Perspective 99 Peter A. Kraus 5.1. Two Dead Ends and a Possible Way Out 101 5.2. “Autonomy Is Not Sovereignty” 106 5.3. Sovereignty in the “Process,” Sovereignty in Process 112 References 117

6. The Right to Decide: a Right of the 21st Century 121 Jaume López 6.1. What Can Be Done in the 21st Century if a Political Community Wants to Become an Independent State? 121 6.2. The Relationship between the Right to Decide and the Right to Self-Determination 123 7

6.3. The Relationship between the Right to Decide and Normative Theories of Secession 128 6.4. The Relationship between the Right to Decide and the Right of Minorities 131 6.5. Addendum: Catalonia and the Right to Decide 134 References 136

7. Normative Views in Practice: the Political Discourse on Secession in Catalonia 2003-2015 139 Ivan Serrano 7.1. Introduction 139 7.2. Theories of Secession in Practice 140 7.3. The Statutory Reform: The Last Expression of Traditional Catalanism 142 7.4. The Failed Expectations of Autonomy within Spain 146 7.5. A Remedial Shift towards Self-Determination 148 7.6. Democratic and Welfare Arguments for Secession 150 7.7. Conclusion 153 References 153

8. Secession, Democracy and Power: the Catalan Case 159 Hèctor López Bofill 8.1. Introduction 159 8.2. Democracy and Secession in the Past 161 8.3. The State as a Human Community that Claims the Monopoly of the Legitimate Use of Physical Force 166 8.4. State Recognition 168 8.5. Catalan Secession: A New Kind of Secession or a Repetition of Previous Cases? 171 References 172

9. Post-Secession Duties: about the Equal Recognition of Languages in an Independent Catalonia 175 Albert Branchadell 9.1. State of the Art 175 9.2 Discussion 178 9.2.1. State Obligations towards Languages 180 9.2.2. Newly Independent States’ Obligations towards Languages 182 9.2.3. Post-Secession Catalan State Duties towards Spanish 187 8

9.3. Conclusion 190 References 191

10. National Minorities, Self-Determination and Human Rights: a Critique of the Dominant Paradigms in the Catalan Case 195 Neus Torbisco Casals 10.1. Introduction 195 10.2. The Politicization of Identity and the Rights of National Minorities 199 10.3. National Minorities and Self-Government Demands: The Role of Historical Rights 207 10.4. Democracy, Self-Determination and Secession: A Critical Appraisal of the “Right to Decide” 213 10.5. Reclaiming Human Rights as a Justice-Based Framework: the Ongoing Relevance of the Right to Self-Determination of Peoples in Post-Colonial Contexts 219 References 222

11. Sovereignty, Fragility and Time in the Catalan Process 227 Joan Vergés Gifra 11.1. Introduction 227 11.2. To Be Sovereign 228 11.3. To Be Fragile 237 11.4. To Be Temporary 243 References 249

12. Sovereignty and Autonomy in the Case Law of the Italian and Spanish Constitutional Courts: Remarks 251 Laura Cappuccio 12.1. Introduction 251 12.2. The Use of Sovereignty by the Italian and Spanish Constitutional Courts in the First Stage of Implementation of Autonomy Models 254 12.3. Sovereignty in the Reform Stage of the System 260 12.4. The Difference between External and Internal Sovereignty: An Acceptable Dichotomy 265 12.5. Conclusion 269 References 270 9

13. Clash of Legitimacies in Catalonia and Spain: the Imperial Logic of Modern Constitutionalism versus Multinational Federalism 275 Alain-G. Gagnon, Marc Sanjaume-Calvet 13.1. Legitimacy, Legality and Democratic Shortcomings 276 13.2. A Canadian Federalist Response: The Quebec Case 285 13.2.1. Canadian Federalism: The Model and Its Contradictions 285 13.2.2. The Canadian Approach: A Model for Catalonia and Spain? 287 13.3. Spanish Federal Shortcomings, the Reason for the Disagreement 292 13.3.1. Shortcomings of Federalization 294 13.3.2. Shortcomings with Respect to the Recognition of Plurinationality 295 13.4. Lessons to be Learned from the Canadian Experience 297 13.5. Conclusion: Pacts and Legitimacies 299 References 300

Notes on authors 303

Index 307

1 Introduction

Peter A. Kraus, Joan Vergés Gifra

In recent years, “the process” has become one of the most fashionable concepts in Catalan and Spanish politics. Without a doubt it is the most important political problem in Spain at present and it is liable to become one of the pressing issues in European politics. But what do we mean when we refer to the “process”? The concept is often qualified with the adjective “sovereigntist,” and in this case it refers to civil society and institutional mobilizations aimed at holding a referendum on Catalonia’s relationship with Spain. Understood in these terms, approximately two-thirds of Cata- lan citizens could be considered supporters of the process. However, the process is also often described as “independentist,” in which case it points at civil society and institutional mobilizations aimed at making Catalonia a new independent European state. Thus, it quickly becomes apparent that studying the Catalan process is studying a complex phenomenon. In the following introductory pages, we want to offer a few key clues for grasping and interpreting this complexity. First, we will highlight those political events and constellations in Catalonia’s recent history that we consider central for an appropriate understanding of the process. Second, we will claim that the process has a political relevance that goes way beyond the Spanish-Catalan context. It relates to key issues concerning the interplay of democracy, sovereignty and statehood in the 21st century. As a matter of fact, our main motivation in editing this collection is the very conviction that what has been, and still is, going on in Catalonia opens 12 The Catalan Process up important insights when it comes to grasping some of the most salient challenges democratic governance faces in an age that combines identity politics and globalism in often surprising ways. Such challenges are obviously not limited to the Iberian Peninsula; they affect Europe and other parts of the world as well. It is this conviction that underlies our interest in offering elements for a systematic and interdisciplinary analysis of “the process” contained in this volume to an international public.

1.1. A Context of Crisis

It is difficult to understand the Catalan process (whether seen as a sovereigntist or an independentist movement) without taking the economic, social and political crisis affecting Spain into account. The great recession that began in 2008 hit Catalonia with an extraordinary ferocity and its effects still reverberate today. The unemployment rate soared from 6.55% in 2007 to 17.75% in 2010. Evictions, a real human drama, also became very widespread.1 Other parts of Spain were not hit so hard. For example, many Catalans looked at the Basque Country and Navarre and attributed these regions’ fortune to the fact that they have a special economic agreement with the Spanish state, provided for in the Spanish Constitution, which enables them to have full financial autonomy and little debt.2 So why should Catalonia, the region that contributes most to the Spanish GNP, have to suffer in such a disproportionate way? The discontent contained in this question was additionally fuelled by the plethora of corruption cases that began to emerge during the premier- ship of José Luís Rodríguez Zapatero, involving above all the PP (People’s Party) and, to a lesser extent, the PSOE (Spanish Socialist Workers’ Party). Meanwhile, CiU (Convergence and Union), the dominant party in Catalan politics over the last 30 years, was also investigated for irregular funding. Moreover, Jordi Pujol, who served five terms of office as president of the Generalitat (the government of the Autonomous Community of Cata- lonia) and is regarded as a sort of “spiritual father” of moderate Catalan nationalism, admitted that he had kept undeclared funds abroad for over

1. Colau, “Dades sobre desnonaments” (“Data on Evictions”). 2. The unemployment rate in the Basque Country was 6.12% in 2007. In 2010, at the height of the financial crisis, it reached 10.55%, while the average rate in Spain had climbed to 20.06%. Introduction 13

30 years. All the scandals related to the bad practices of the banking sector, widespread corruption and the deterioration of King Juan Carlos’ public image in the final few months of his reign engendered a profound social and institutional crisis in Spain. The Spanish response to this crisis was the so-called 15M Movement (referring to May 15, 2011), especially in Madrid. The movement also attracted support in Catalonia. However, it is clear that many Catalans channeled their indignation into a political aspiration to start from scratch in a new country where corruption and oligarchic party politics would not be allowed to harm the general interest. Ultimately, it can be argued that the crisis generated by the Pujol af- fair was a key factor in discrediting moderate nationalism and paving the way for the shift from pro-autonomy to pro-independence in the Catalan nationalist camp.

1.2. The 2006 Statute of Autonomy

One of the main objectives of the so-called primer tripartit, the three- party left-wing coalition government composed of the PSC (Party of the Catalan Socialists), ERC (Republican Left of Catalonia) and IC-V (Initia- tive for Catalonia - Greens) following the regional elections of 2003 was to reform the 1979 Statute of Autonomy of Catalonia. The aim of the government, presided over by the charismatic Pasqual Maragall, whose time in office as mayor of Barcelona encompassed the period surrounding the city’s hosting of the Olympic Games, was to guarantee the level of self-government that had been achieved since the early 1980’s through the statute. In the preceding governments, in which CiU (the centre-right coalition Convergence and Union) had been the ruling party, elements of self-government had been achieved or increased through situation-specific agreements with the Spanish government, most of which were negotiated at times when the support of the CiU members of the Spanish Congress was decisive in winning key votes. The statutory reform started its legislative journey just before the second government of José María Aznar (PP) drew to a close. And, from a Catalan perspective, it started rather well. In his 2004 general election campaign, the PSOE candidate, José Luis Rodríguez Zapatero, declared in a now-famous political rally in Barcelona: “I will accept the statute proposal issued by the Catalan Parliament.” He emerged victorious in the general election, and the socialists were the most-voted party in Catalonia. 14 The Catalan Process

On September 30, 2005, the Catalan Parliament approved a proposal for the reform of the Statute of Autonomy with 120 votes in favour and 15 against (all 15 negative votes coming from the PP parliamentarians.) The proposal contained five key points: (i) to state that Catalonia is a nation; (ii) to consolidate the linguistic policy of the Generalitat and make Cata- lan the “public language” of Catalonia; (iii) to create a Catalan judiciary; (iv) to establish the foundations of a new funding system, increasing the tax-collecting capacity of the Catalan authorities; and (v) to protect the powers of the autonomous government from an increasing trend towards recentralization. The text of the proposal was sent to the Spanish Parliament in No- vember 2005. By the time the proposal was approved by the Senate (the upper house of the Spanish Parliament) on May 10, 2006, more than 50% of its articles had been modified with respect to the version that had been submitted by the Catalan Parliament. As a result of the “trimming” of the initial proposal, ERC, one of the coalition partners of the Catalan government, decided that it would campaign for a “no” vote in the referendum to be held in Catalonia to ratify the new text. Following this decision, Pasqual Maragall removed the ministers of this party from his government, thus leaving the first three-party coalition dead in the water. The ratification referendum was finally held on June 18, 2006. Turnout was low (just over 49%) but the “yes” camp prevailed with 73.9% of the votes. New elections were called in Catalonia the following autumn. Once again, as occurred in 2003, the winning party was CiU. However, since the three parties that had formed Maragall’s coalition government had once again secured an absolute majority between them, they formed a second three-party coalition, despite the fact that the first coalition had run out of steam. José Montilla (PSC) was named president. Nevertheless, the fate of the new statute was left in the balance. No sooner had it been approved by the Spanish Parliament than the PP, a few autonomous regions governed by the PP and the Ombudsman of Spain (a markedly anti-nationalist former Socialist leader) appealed its approval before the constitutional court. The PP even went so far as to collect millions of signatures against the statute from across Spain since, in its opinion, it constituted an attack on the unity of the Spanish nation. Introduction 15

1.3. The Ruling of the Constitutional Court and the Start of the Process

There is widespread consensus that the process itself started with the large-scale protest of Catalan citizens against the ruling on the statute issued by the Constitutional Court on June 28, 2010. The ruling stated that 14 articles of the statute were totally or partially unconstitutional and indicated the narrow interpretation that must be applied to 30 additional articles. The impact was huge not so much because it annulled a large number of articles, but rather because it rendered the statute itself virtually meaningless.3 For a start, it stressed that Catalonia could not be considered a nation in a political or legal sense; in consequence, the legitimacy of the statute did not emanate from the Catalan people, but rather from the Spanish Constitution. The ruling also annulled the institutional mechanisms that the Catalan government aimed to roll out in order to improve funding or to create a Catalan judiciary. Finally, it represented a significant blow to the linguistic policy model that the Generalitat wished to implement: Catalan could thereby not become the “public language” of Catalonia. Moreover, it went so far as to question the linguistic policy model that had been applied until then.

1.4. Mass Mobilizations

The first large-scale mobilization took place straight after the ruling of the constitutional court was made public. A huge demonstration brought the centre of Barcelona to a standstill on July 10, 2010 (more than a million people took part according to some estimates). The main chant heard that day was “independence.” All of a sudden, civil society had changed. It is worth remembering that, before the ruling was issued, a series of pro-independence associations, anticipating what the general verdict of the Constitutional Court would be, had held consultations on the independence of Catalonia in many Catalan towns and villages (the first one took place in Arenys de Munt in June of 2009 and the last one was held

3. For a more detailed analysis, see the special issue of Revista Catalana de Dret Públic “Especial Sentència 31/2010 sobre l’Estatut de Catalunya” (“Special Issue on Ruling 31/2010 concerning the Statute of Catalonia”), http://revistes.eapc.gencat.cat/index.php/rcdp/issue/ view/23. 16 The Catalan Process

in Barcelona in 2011).4 Obviously, these were non-binding consultations. Nevertheless, they achieved significant symbolic media impact and constituted the first serious test of the capacity for mobilization generated by pro-independence sentiment in Catalan civil society. This capacity took shape, above all, through the creation and action of associations that exerted a great deal of influence on the Catalan political class: the Associa- tion of Municipalities for Independence (AMI), the National Assembly of Catalonia (ANC) and the Òmnium Cultural (OC) civil society agency. The latter two have been the main organizers of some of the largest political demonstrations ever to be witnessed in Catalonia and even Europe. These mass demonstrations have always taken place on September 11 (the National Day of Catalonia) and have always been peaceful. The massive mobilization of Catalan civil society is what has driven Catalan political parties and institutions, starting with parliament and ending with the government of the Generalitat, to take a radical departure and focus more seriously than ever before on the objective of national self-determination, including the option of unilateral independence.

1.5. Catalan Institutions and the Process

In the autumn of 2010, a few months after the mass demonstration against the ruling on the statute, CiU was once again the most voted party in the regional elections. This time, its candidate Artur Mas did become the new president of the Generalitat. The key point of his election manifesto had been to reach a “fiscal agreement” with the Spanish government that granted Catalonia a funding model similar to that of the Basque Country and Navarre. Furthermore, he announced that if the Spanish government refused to meet the Catalan requests, the option of going down the path of full self-determination would have to be considered. By now, Mariano Rajoy (PP) had become the Spanish prime minister, having won the Span- ish general elections of November 2011 with a strong absolute majority. Artur Mas met Mariano Rajoy in Madrid on September 20, 2012 in order to formally hand him the Catalan Parliament’s request for a fiscal agreement. The result of the meeting was a resounding “no” from the Spanish government and the calling of snap regional elections in Catalonia.

4. Muñoz, and Guinjoan, “Accounting for Internal Variation.” Introduction 17

The Catalan Parliament approved a resolution on September 27, 2012 urging the Catalan government to call a referendum on self-determination at the earliest opportunity. CiU won the November elections, but lost votes and parliamentary representation. Artur Mas was once again named president of the Generalitat thanks to the so-called “Freedom Agreement” with ERC. The key point of the agreement was to call and hold a referendum on self-determination, which became the central issue of Catalan and Spanish politics from this time. On January 23, 2013 the Catalan Parliament voted through the Dec- laration of Sovereignty and of the Right to Decide of the People of Cat- alonia, which states that “the people of Catalonia have, for reasons of democratic legitimacy, the nature of a sovereign political and legal entity.” Accordingly, the parliament would begin “the process to make effective the exercise of the right to decide so that the citizens of Catalonia may decide their collective political future.” In June, 2013 the National Pact for the Right to Decide was established, an umbrella organization that brings together political parties, trade unions, local councils, and civil associations. The Pact’s objective was to promote the holding of a consultation or referendum.

1.6. The Consultation of November 9, 2014 (9N)

2014 was a particularly tumultuous year. It included the commemoration of the 300th anniversary of the Siege of Barcelona of 1714.5 Furthermore, on September 18, Scotland held a referendum on whether it wished to remain part of the United Kingdom or become an independent country. In Catalonia, the Scottish referendum was seen as the clearest example of how to deal with issues of this nature in democracies. This was how the Catalan parliament and government saw it, at any rate. Indeed, on April 8, 2014 a delegation of members of the Catalan Parliament lodged an official request before the Spanish Parliament for the transfer, by virtue of article 150.2 of the Spanish Constitution, of the “powers to hold a non-binding referendum” on the political future of Catalonia. In his response to the Catalan request, the Spanish prime minister, Mariano Rajoy, stated: “I

5. On September 11, 1714, during the War of the Spanish Succession, the troops of the pretender to the throne, Philip V of the House of Bourbon, conquered Barcelona. In accordance with the right of conquest, he declared null and void all the constitutions and laws of Catalonia that all the Spanish monarchs until then had pledged to respect. 18 The Catalan Process cannot and do not wish to allow a referendum in Catalonia.” All hopes of following in the footsteps of Quebec and Scotland by agreeing on a referendum with the state were thus dashed. Despite this, on September 19, 2014 the Catalan Parliament passed a Law on Non-Referendum Popular Consultations and Other Forms of Citizen Participation and, on September 27, President Mas signed a decree calling the corresponding consultation. However, on September 29 the Constitutional Court provisionally suspended both the law and the decree. Faced with this situation, the government of Artur Mas turned the popular consultation organized by the Generalitat into a “participative process” (in which the Generalitat did theoretically not take part), yet maintained the date (November 9) and the question of the consultation. In the end, two and a half million people took part, of whom more than 80% voted in favour of Catalonia becoming an independent state.

1.7. The “Plebiscitary” Elections and the Process, Today

The events of November 9th did not solve the situation. For a start, it was merely a participative process with a non-binding vote and limited turnout. Against this background, Artur Mas announced in January, 2015 that he was moving the regional elections forward to September 27 with the goal of using them as a substitute for the referendum on self-determination that the Spanish state refused to sanction. Nevertheless, the election results of September 27 did not really clarify the situation either. The explicitly pro-independence parties obtained an absolute parliamentary majority, with 47.8% of the votes. Meanwhile, the parties explicitly opposed to independence won 39.17% of the votes, while the parties explicitly in favour of holding a referendum, yet with no unambiguous position on independence, secured 11.45%. In this context, and given their absolute majority in the Catalan parliament, the parties advocating independence decided to continue with the “road map” towards independence. On November 9, 2015, the Catalan parliament passed Resolution 1/ XI, entitled On the Start of the Political Process in Catalonia as a Conse- quence of the Election Results of September 27, 2015. The resolution “sol- emnly declares the start of the process for the creation of an independent Catalan state in the form of a republic.” The resolution also announces a “democratic disconnection” from the parent state and states that the Introduction 19

Catalan Parliament “will not be subject to the decisions of the institutions of the Spanish state, in particular the Constitutional Court, which it considers devoid of legitimacy following its ruling of June, 2010 on the Statute of Autonomy of Catalonia.” Carles Puigdemont (who until then had served as the mayor of Girona and replaced Artur Mas, whom the radical pro-independence left refused to accept as president) was named the new president of the Generalitat on January 12, 2016 and pledged his loyalty to “the will of the people of Catalonia.” What is the state of the process today (in early 2017)? It is true that the strained (almost revolutionary) atmosphere that existed between 2012 and 2015 has subsided for the moment. The improvement of the Catalan and Spanish economy has no doubt been a contributing factor.6 Some have interpreted this atmosphere of calm as a debilitation of the pro-independence movement, which might be confirmed by the victories (at least in relative terms) in Catalonia of the “pro-sovereignty but not explicitly pro-independence” coalitions of CSQP (Catalonia Yes We Can) / En Comú Podem (In Common We Can) in the two general elections of 2016, as well as in the municipal elections of the city of Barcelona. Nevertheless, many indicators point to the process being alive and well. This became evident in the mass demonstration of September 11, 2016, as well as in the steps that the Catalan Parliament and government have taken since then. The most important of these steps are the so-called “laws of disconnection” which the Parliament has already begun to debate: the law on transitional jurisprudence, the law on a Catalan social security system, and the law on a Catalan tax authority. The pro-independence forces of the Catalan Parliament aim to pass them and to hold, by September, 2017 at the latest, a binding unilateral referendum on independence. In this respect, the Spanish government has already stated that it will firmly prevent any referendum from taking place. Meanwhile, Artur Mas and two ministers of his government stood trial in February, having been accused of organizing the consultation of November 9, 2014. All three have been banned from holding public office for 13 to 24 months. Many analysts consider that the trial of the former president signals the start of the final phase of the process. The clash with Spain is eminently predictable.

6. According to some analysts, economic expectations have an influence above all on individuals who maintain an ambivalent national identity. See Muñoz, and Tormos, “Economic Expectations.” 20 The Catalan Process

1.8. Old Grievances, New Politics

The Catalan process has many peculiarities which are ultimately connected to Catalonia’s status as a territory of the Spanish state. We will return to this point at the end of the introduction. At the same time, however, the Catalans’ quest for sovereignty can also be seen as an important element in the larger picture of what one might call a ‘‘secessionism of a new kind.” The most characteristic feature of this new secessionism is the goal of ‘‘correcting” the shape of a given state unit by democratic means. In this respect, Catalonia has obvious commonalities with Quebec and Scotland. We are dealing with Western-type historical nations, whose secessionist ambitions differ sharply from the struggles for independence observable both in anti-colonial struggles and in the context of post-1989 Eastern Europe and Eurasia. Particularly in the latter case — think of the Baltic republics, former Yugoslavia, or the Caucasus region — ethno- nationalist motives were a key factor in the conflicts over sovereignty.7 We do not argue that such motives are completely absent in Catalonia today, but we want to highlight that they clearly play a secondary role in comparison with the civic demands to find a democratic solution to the Catalan question. Such demands are generally put forward by pointing at the lack of substantial options Catalonia has as a political subject for making its voice heard at the level of collective decision-making in Spain. In contrast with federations, which are typically based on a system of divided and shared sovereignties, in the post-Francoist state all sovereignty remains concentrated at the centre, and is ultimately held by Spanish authorities, which represent the ‘‘one and indivisible” Spanish nation. The constitutional status quo thus condemns the Catalans to remain a structural minority, i.e. a minority whose members have no real chance to influence the policies that affect them in similar ways as citizens who belong to the majority do. In consequence, although the independentist discourse certainly is complex and multifaceted, there is one recurrent aspect in virtually all justifications of the secessionist project: the sentiment of political domination by, if not sheer subjection to, Spanish institutions. Given the strength and vibrancy of Catalan society, external observers may find this sentiment far-fetched. However, there is a point in arguing that Spain’s Estado de las

7. Cf. Kobo, Secession and Ethnic Conflict, 207-225. Introduction 21 autonomías establishes a system of unequal recognition between different national groups, as becomes notably evident on the terrain of language rights, where Catalan or Basque are bound to retain a second-class status vis-à-vis Spanish.8 With hindsight, the blatant rejection of key contents of the 2006 Statute of Autonomy by the Spanish Constitutional Court, an experience that many Catalans regarded as deeply humiliating, may be taken as the catalyst that started turning a general feeling of powerlessness into protest. In contrast with Quebec, to whom the Canadian federation has granted considerable powers, covering fields such as language, immigration, and social policy, to allow it to maintain its profile as a société dis- tincte in North America, Catalonia lacks institutional mechanisms guar- anteeing it an unquestionable minimum of powers for self-government in those areas that seem critical for securing its particular identity.

1.9. The Non-Obsolescence of Secession

Claims that the high time of nationalism has come to an end9 notwithstanding, issues related to self-determination and secession remain high on the global political agenda. The number of UN members has increased steeply over the last few decades. The proliferation of new states was especially remarkable in the geographical area in Eastern Europe and Eurasia that had once been under the political control of the Soviet Union. This confirms a trend that had already become evident after the collapse of several empires in World War I: Frequently, what instigates demands for creating new sovereign polities is the very dynamic of democratization. This is because the question of democracy is inextricably linked to the question of the demos, to the question of which collectivity is legitimately entitled to rule itself.10 The recent rise of a new secessionism in Western Europe suggests that the dynamic of globalization and transnational integration fuels rather than obstructs aspirations to alter political borders drawn in pre-democratic times. In view of such trends, it seems not too exaggerated to predict that secession will continue to be one of the major political themes of the 21st century.

8. Moreno, Dominios del español. 9. Hobsbawm. Nations and Nationalism since 1780. 10. Linz, and Stepan. Problems of Democratic Transition and Consolidation. 22 The Catalan Process

Accordingly, we think that neither scholarly nor political debate should evade the theme. Rather we should open-mindedly confront the problem of how a successively integrated or, at any rate, interconnected world system should tackle the issues of sovereignty and secession.11 The challenge is certainly an extremely complex one, for it involves developing an international codex that responds to secessionist demands in a way that goes beyond the factual acknowledgement of the prerogatives of established states. Coming up with such a codex does not necessarily imply opening Pandora’s Box and giving in to an anarchic pledge for a successive balkanization of the world. However, it is a task that certainly raises difficult questions. An important aspect to be taken into account here is the justification of secessionist demands: even if we limit ourselves to the West European context, we find a very wide range of arguments put forward by secessionists. They stretch from the welfare chauvinism that advocates the creation of a ‘‘Padania” in several regions of Northern Italy to the Scottish desire to link independence to the introduction of a more egalitarian and just social model. Against this background, a key point to be taken into account when it comes to judging secessionist claims is their compatibility with the standards of human rights, constitutionalism, and democracy. Another important question is: What political means does the ‘‘majority state” rely on when it reacts to demands that want it to split, if not to yield sovereignty? A quick glance at the present situation in the community of Western-type democracies reveals that these reactions are as varied as the ideological bases of demands for separation are. While many states keep categorically rejecting any claim to re-negotiate internal sovereignty, there are others — Canada being the prime example — whose institutions have made serious efforts to sketch out basic rules for handling secessionist claims in a way that should be acceptable to all parts involved in the conflict.

1.10. The Process in the Context of the Post-Francoist State

The two previous sections highlighted those features of the Catalan process that connect it to similar developments in other Western democracies.

11. We are writing this under the assumption that tendencies evidenced by Brexit or the Trump presidency may slow down, but not fully reverse the rise of global networks. Introduction 23

At the same time, however, important aspects of the Spanish-Catalan conflict can only be properly understood by looking at the specific characteristics of the post-Francoist state, on the one hand, and of Catalan society, on the other hand. The stubborn resistance of the institutions representing the centre to all attempts to debate the terms of an independence referendum in Catalonia has to be linked to the history of state-making in Spain, which combines imperial-authoritarian and Jacobin legacies in peculiar ways. From a macro-historical perspective, this peculiarity may be best understood by taking into account that in the Spanish context of the 19th and 20th centuries, the construction of modern state structures was not paralleled by a successful liberal revolution.12 Thus, in contrast to France, the centre’s efforts to impose the patterns of a majority culture defined as Spanish-Castilian on the peripheries lacked the support the French- republican agenda could ultimately count on in the provinces governed from Paris. To put it in more technical terms: As a nation-state, Spain — similar to France — was built on an understanding of sovereignty that is categorically monistic, an understanding that still permeates the Constitution of 1978, with its emphasis on the oneness and indivisibility of the Spanish nation. However — and in contrast with the situation north of the Pyrenees — such a notion of sovereignty could not rely on the widely unchallenged hegemony of the majority culture.13 The lack of domination-by-consent, to use a Gramscian category, may be an important element for understanding the nervous tics Spanish state authorities tend to keep exhibiting in all matters related to the question of where sovereignty lies. Such tics become especially salient when they are related to issues that many foreign observers — at any rate those who are familiar with the routines of policy-making in a federal setting — may consider curious. They permeate the judicial turning down of Catalan plans for a regional regulation of shop opening hours, as controlling the commercial schedule must be considered a strict prerogative of the Spanish sovereign. And they also become manifest in the Spanish Constitutional Court’s overturning of the Catalan Parliament’s decision to ban bullfighting: In the Court’s view, bullfighting has to be considered an integral element of a common Spanish cultural identity, which is a matter Catalonia has no powers over. Seen in this light, the handling of the issue of internal

12. Fontana, Formació d’una identitat. 13. Rokkan, State Formation. 24 The Catalan Process sovereignty in Spain seems to come closer to an approach that one might label as monist fundamentalism — an approach that, albeit in a different way, can be grasped in the case of Turkey as well — than to the way the problem of political cohesion has been dealt with in Canada and the UK, where the tradition of customary law offers some leeway for a more “relaxed” handling of secessionist claims. The second point to be emphasized when it comes to the specificities of the Catalan context is the great weight of civil society actors, such as the Assemblea Nacional de Catalunya, Òmnium Cultural, or Súmate,14 in the articulation of the independentist agenda. Whereas it may well be argued that in Quebec and Scotland the driving force in the quest for sovereignty has been, respectively, one large party representing the independentist block — the Scottish National Party in Scotland and the Parti Québécois in Quebec — we face a politically more complex map in Catalonia. As pointed out above, the triggering of the process in the early 2010’s was the result of the mobilization of civil society rather than of strategies worked out by regional political elites. At the same time, the political organizations supporting the independentist cause cover a remarkably wide ideological spectrum, which ranges from the CUP (Popular Unity Candidacy) on the far left to the centre right sectors in the PDeCAT.15 Its remarkably plural character provides independentism with a high level of social legitimacy. Thus, it may be argued that the sovereigntist discourse has become hegemonic in present-day Catalonia in “soft” ways, i.e. in ways that evade block thinking and strong polarization along national (“Spanish” vs. “Catalan”) identity lines. Sovereigntism comes in many different political colours, and the definition of its ultimate raison d’être will vary greatly depending on whether it is defended by a CUP militant, a farmer from the Lleida coun- tryside, or a small entrepreneur from the greater Barcelona area. However, somewhat paradoxically, the very plural character of the process’s support, which must be considered a valuable asset in terms of societal strength, may be also a weakness when it comes to political unity and conflict capacity vis-à-vis Madrid. At any rate, it complicates collective decision-making at the institutional level, as the tensions between the two main forces giving support to the Catalan government — PDeCAT and ERC — on the

14. Súmate (‘Join in’) is an association of Spanish-speaking supporters of independence. 15. The Partit Demòcrata Europeu Català was created in 2016 as the successor organization to the liberal CDC (Convergència Democràtica de Catalunya), founded by Jordi Pujol in 1974. Its creation was a result of the Pujol crisis and the break-up of the CiU coalition. Introduction 25 one hand, and between these forces and the CUP, on the other hand, have shown repeatedly over the last couple of years. The future will tell whether the joint efforts of political leaders and civil society forces will be effective enough to pilot the independentist cause successfully through a period of protracted and potentially intensifying conflict with the authorities of the Spanish state.

1.11. Plan of the Book

Roughly speaking, the book has two parts. The first part, consisting of three contributions, offers a compact overview of the ongoing debate on nationalism, democracy, and secession in political theory. Michel Seymour addresses three questions: Which populations are as a matter of fact already acknowledged as peoples? What does it mean to be a people? What should we do in order to solve the problem concerning the existence of many different peoples within a single state, including stateless nations such as Catalonia? On the other hand, Lluís Pérez argues that republicanism should favour multinational federal arrangements. At the same time, he asserts that in order to guarantee the kind of freedom as non-domination that constitutes republicanism’s normative core, multinational federal arrangements should incorporate the right to a non-unilateral secession of stateless nations, pretty much in the line of the Reference re Secession of Quebec issued in 1998 by the Supreme Court of Canada. In the last of the three more general contributions, Ferran Requejo first offers a conceptual sketch of different types of multinational federalism. Against this background, he then moves from Kant to Hegel (and back) developing a normative frame that justifies secession in cases where majorities in multinational states fail to recognize and accommodate minorities in accordance with advanced democratic standards. The nine chapters of the larger second part of this volume all focus on Catalonia. They do so from an interdisciplinary angle, and by combin- ing a wide range of theoretical, empirical and comparative perspectives. Peter A. Kraus opens this part of the book arguing that the traditional vocabulary of nationalism studies has clear limits when it comes to finding an appropriate way to analyze the Catalan process. In his view, the political dynamic in Catalonia is not so much a reflection of the demands of a national “late-comer,” but rather a premonition of a problem that will 26 The Catalan Process become more and more pressing in the future, namely that of finding formulas that allow the pre-democratic foundations of modern statehood to be changed in democratic ways. For his part, Jaume López focuses on the so-called “right to decide,” an expression that has had a pivotal role in the mobilizations and ideology that characterize the Catalan process. According to López, the right to decide has to be distinguished from the right to self-determination and there are good reasons to consider it the spearhead of a new conception of democracy. Ivan Serrano’s piece analyzes the impact of normative theories on the secessionist discourse in Catalonia over the last years. Focusing on party manifestos and parliamentary resolutions, Serrano shows how remedial and instrumental arguments have successively been on the rise in this discourse. Héctor López Bofill defends that Catalan independentists should focus on the logic of power and not on the logic of democratic legitimacy. In view of the fierce opposition of the Spanish state to holding a referendum on secession, they have no chance of a strictly speaking “democratic” secession process. Albert Branchadell tackles the delicate issue of language policy in a fully sovereign Catalonia. Drawing on the theory of recognition, he argues that in an independent Catalonia, official status will have to be granted to Spanish as a matter of justice. Like any other linguistically heterogeneous state, Catalonia has a duty to equally recognize the languages spoken in the community on equal grounds. According to Branchadell, this conclusion can be taken as a contribution to a normative theory of the post-secession duties of new states. Neus Torbisco regrets the fact that the mainstream public discourse in Catalonia has so far underestimated the existing commonalities of the process with other struggles in Europe and other parts of the world, such as the fight of indigenous peoples. Her goal is to call attention to the basic questions of political justice and human rights that are central to the Catalan process and that have to do with what Allan Patten has called “equal recognition.” Joan Vergés Gifra focuses on three aspects of the Catalan process that are usually neglected in academic approaches: the fight for sovereignty as a metaphysical issue, the existentialist sense of some kind of dilemmas emerging in the process, and the experience of time. By highlighting the importance of these three aspects, Vergés Gifra seeks to prove that the Catalan process can only be correctly understood as a national process. The last two chapters of this collection deal with the Spanish-Catalan conflict from a comparative perspective. Laura Cappuccio analyzes the Introduction 27

Italian and Spanish Constitutional Courts and their doctrines concerning the relationship between sovereignty, either internal or external, and regional autonomy. The chapter aims at highlighting the similarities and differences between the two courts’ decisions on the issue. In the contribution that closes this book, Alain-G. Gagnon and Marc Sanjaume address the Catalan case from a Canada-Quebec angle. In the light of the democratic legitimacy of Catalan demands and the principles learned from the Canadian constitutional debate experience, they consider a federal-style solution to Spain’s territorial tensions, and observe several federal and plurinational shortcomings in current institutional designs. They conclude that final pact should be based on democratic decisions consulted with the people of Catalonia in the case of secession, alternatively, on renewed (federal) model. This book was first conceived of as a conclusion to the workshop held at the University of Girona in May, 2015 under the title “Theory and Practice of the Catalan Process.” The workshop was co-organized by the Ferrater Mora Chair of Contemporary Thought (University of Girona), the Institute for Canadian Studies (University of Augsburg) and the In- stitut d’Estudis de l’Autogovern (Generalitat de Catalunya).

References

Colau, Ada. “Les dades sobre desnonaments a Catalunya i Barcelona” (“The data on evictions in Catalonia and Barcelona”), 2011. http://observatori- desc.org/sites/default/files/article_desnonaments_catalunya_i_bcn.pdf. Barceló, Mercè, Xavier Bernadí, and Joan Vintró (eds.). Revista Catalana de Dret Públic. “Especial Sentència 31/2010 sobre l’Estatut de Catalunya” (“Special Issue on Ruling 31/2010 concerning the Statute of Catalonia”). http://revistes.eapc.gencat.cat/index.php/rcdp/issue/view/23. Fontana, Josep. La formació d’una identitat. Una història de Catalunya.Bar - celona: Eumo Editorial, 2014. Hobsbawm, Eric J. Nations and Nationalism since 1780: Programme, Myth, Reality. Cambridge: Cambridge University Press, 1990. Linz, Juan J., and Alfred Stepan. Problems of Democratic Transition and Con- solidation: Southern Europe, South America, and Post-Communist Europe. Baltimore: Johns Hopkins University Press, 1996. Moreno Cabrera, Juan Carlos. Los dominios del español. Guía del imperial- 28 The Catalan Process

ismo lingüístico panhispánico. Madrid: Euphonía Ediciones, 2014. Muñoz, Jordi, and Marc Guinjoan. “Accounting for Internal Variation in Nationalist Mobilization: Unofficial Referendums for Independence in Catalonia (2009-11).”Nations and Nationalism, no. 19 (2013): 44-67. Muñoz, Jordi, and Raül Tormos. “Economic Expectations and Support for Secession in Catalonia: Between Causality and Rationalization.” European Political Science Review, no. 7 (2014): 315-341. Pavković, Aleksandar, and Peter Radan (eds.). The Ashgate Research Com- panion to Secession. Farnham: Ashgate, 2011. Rokkan, Stein. State Formation, Nation-Building, and Mass Politics in Europe. Oxford: Oxford University Press, 1999. 2 Peoples and Their Right to Self-Determination

Michel Seymour

Everyone agrees that there are peoples. That is, we are committed to the existence of peoples, whatever they are. The Canadian people exists, the British people exists and the Spanish people exists. But this is also true of peoples contained within them. So the Quebec people, the Acadian people and the indigenous peoples of Canada also exist. The Scottish and the Welsh peoples also exist in Great Britain. The Galician people, the Basque people, the Catalan people, among others, also exist in Spain. There are only 193 sovereign states in the world right now, but there are many more peoples than that. Some say that there are thousands of peoples all over the world. So most states contain many different peoples. Indeed, most states are multinational states. The problem, however, is that in the minds of most politicians, political scientists, jurists and philosophers, the only acceptable political model is that of the traditional nation-state, that is, a state in which there is only one people. So they tend to ignore the existence of minority peoples within the state. We still do not have the tools that would enable us to deal with the fact that some peoples also exist even if they do not enjoy their own sovereign state. We tend to believe that in order to exist as a people in the civic and thus inclusive sense, the population has to be composed of the citizens comprising a sovereign state. Stateless peoples, that is, peoples that do not have a sovereign state, tend to be assimilated with “ethnic minorities.” The term here is of course often used in a pejorative sense. Now 30 The Catalan Process ethnic minorities do not enjoy many rights in international law. The only protection comes from the International Covenant on Civil and Political Rights.1 It is often argued that their main protection is secured by article 27 of the Covenant.2 However, if I am right, this view is wrong-headed. We have to acknowledge the existence of stateless peoples. These peoples may very often be numerical “minorities” — a notable exception to this is the Flemish people of Belgium — but they cannot be assimilated with the “minorities” referred to in international law, for they are peoples. Neither are they necessarily “ethnic,” for they are often enriched by the presence of immigrant groups and thus are themselves multi-ethnic. So what should we do about stateless peoples? What is the problem that we have to solve? Specifically, why should the very existence of many peoples within a single state constitute a problem? These questions come with at least three others. Which populations are as a matter of fact already acknowledged as peoples? Even more pressing is the question of trying to define peoples. So what does it mean to be a people? And finally, what should we do in order to solve the problem of the existence of many different peoples within a single state? I will very briefly try to answer all these questions in this chapter. If we understand the problem and are able to identify peoples that are already recognized and those that should be recognized on the basis of a good definition, then we shall perhaps be in a better position to answer the question concerning what we should do about stateless peoples.

2.1. What Is The Problem?

Supposing that stateless peoples exist, no matter how we choose to define them for the time being, what is the problem to be solved? Here is my answer. The presence of many different peoples within a single state creates a problem because you cannot ask a people to renounce becoming a sovereign state and also renounce at the same time being recognized

1. International Covenant on Civil and Political Rights, General Assembly Resolution 2200A (XXI) of 16 December 1966. 2. Article 27 stipulates: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” Peoples and Their Right to Self-Determination 31 by the encompassing state, that is, by the multination state in which it is incorporated. It is simply unjust to accept that some peoples enjoy full sovereignty and full international recognition while other peoples would not have their sovereign state and would not even be recognized by their encompassing state. This would clearly run counter to our intuition that all peoples should in some sense be equal. Individual persons need to be recognized. They need to be recognized by significant others in their intimate relationships, benefitting from the care, attention or emotional involvement of parents, friends, and lovers. They also need to be recognized in society as equal citizens enjoying certain rights. They finally need to be recognized in the workplace as pro- fessionals having certain specific abilities. A person with no relational identity whatsoever is only half a person. We seek recognition in our intimate relationships, in a system of rights and liberties, and also at work.3 Now just like individuals, peoples also need to be recognized. This is so, for instance, when a people becomes sovereign. Recognition by the international community is an indispensable condition that a people must meet, not in order to achieve sovereignty in accordance with international law, but in order to perform the actions of a nation-state. Similarly, stateless peoples should benefit from the same kind of recognition coming from the encompassing state. The recognition that would be provided by the multinational state toward their component peoples would help them in exercising their self-determination. By the same token, it could perhaps also play a crucial role in the stability, viability and legitimacy of the multinational state. So the problem caused by the existence of stateless peoples is that in general they not only fail to achieve an appropriate autonomy, they also fail to be recognized by the encompassing state. An immediate attempt to deal with this problem could perhaps itself be phrased into a question: why don’t we simply allow all peoples to become sovereign states? In order to avoid the problem, the solution might indeed be to allow stateless peoples to have their own sovereign state. After all, theoretically speaking, this would be an easy way out of the difficulty. This answer would amount to defending the traditional concept of nationalism. According to Ernest Gellner, nationalism is based on the nationality principle according to which the frontiers of the people should coincide

3. For arguments explaining why there is a need for recognition, see Honneth, Struggle for Recognition; Taylor, “Politics of Recognition.” 32 The Catalan Process

with the frontiers of the state.4 In other words, each people should have its own state. There is also the alternative and somewhat milder principle according to which each people should at least in principle be entitled to have its own state and at least enjoy the right to have its own state. This milder version does not imply that each people should have its own state. In some cases, it could perhaps be better if the people chose some alternative solution.5 However, from a practical point of view, the idea that each people should have its own state or have a prima facie right to become sovereign is extremely radical and carries with it numerous insuperable difficulties of application. It is indeed hard to imagine what would happen if all peoples were to engage in the process of acquiring their own state. There would certainly be a tremendous turmoil all over the world. We would witness violence on a very wide scale. Radical geopolitical changes would have to occur. So to put it mildly, this first solution does appear to be quite impractical and should therefore be rejected. But there is an even more pragmatic argument to consider. I do not accept the principle according to which the frontiers of peoples and the frontiers of sovereign states should be the same. I reject this traditional version of nationalism and thus the nationalist principle. But even if we were to accept the principle as a norm that must be implemented, we would still have to admit that this state of affairs is not about to occur. Imagine what would happen if the total number of states were to increase significantly and reach 400 by the end of this century. This would be twice as many as the current number of states (193). An immense revolution would have to take place. Even then, these states would still have to accommodate hundreds of other stateless peoples. So it is perhaps important to look for alternative options to the traditional single-nation state, because whatever happens in the future and for many decades, if not many centuries to come, hundreds of stateless peoples will certainly remain to be accommodated, acknowledged, and recognized. We should therefore perhaps try to think about the conditions that could guarantee the future legitimacy, viability, and stability of multinational states and thus perhaps consider the possibility of implement-

4. Gellner, Nations and Nationalism. 5. For such an account, see Moore, Ethics of Nationalism; Miller, Citizenship and National Identity; Miller, On Nationality, Nielsen, “Liberal Nationalism and Secession,” see especially p. 111-112. Peoples and Their Right to Self-Determination 33 ing politics of “recognition” for the constitutive peoples of multinational states. One traditional objection to this idea is that a fundamental distinction must be made between a civic concept of people and an ethnic concept of people. It is usually thought that the former concept is legitimate and that the ethnic concept is not legitimate. It is then assumed that all stateless peoples are ethnic while sovereign peoples are civic. The conclusion is that the state should not implement politics of recognition for ethnic minorities. Of course these claims are extremely controversial and for many different reasons. It is first assumed that there is no legitimacy in ethnic peoples. However, there are, for instance, many indigenous peoples that can be described as ethnically homogeneous or that, at least, entertain a national self-representation of themselves as ethnic peoples, without deserving to be accused of any ethnocentrism, xenophobia, or racism. Ethnic peoples are not necessarily aggressive and can in principle respect other peoples. Secondly, stateless peoples are not necessarily ethnic. Some stateless peoples are multi-ethnic and multicultural. They can be inclusive of minorities and respectful of these minorities. Third, the so-called civic peoples of a sovereign nation state may, as a matter of fact, put forward policies, institutional rules, and constitutional principles that are made to measure for an ethnic majority and that are detrimental for minorities. In other words, the ethnic majority may influence the sovereign state into implementing ethnocentric policies. So the appeal to the distinction between ethnic and civic peoples is problematic if it is meant to discard the demands for recognition of constitutive stateless peoples. It certainly cannot be used by the state to remove itself from the responsibility of creating favorable conditions for the self-determination of national minorities. There is, however, another line of attack against the idea of having to recognize stateless peoples. It presents itself as a less radical objection. It is simply suggested that there may be something good in politics of recognition but that, at the same time, groups that are recognized on the basis of their ethnic origin can also be stigmatized by the very act of recognition. Recognition, it is argued, is a double-edged sword. It can identify a minority that has been badly treated within society but, by the same token, it can also place some additional burden upon that group. The suggestion is that one should be ambivalent concerning politics of recognition, because they stigmatize as much as they recognize. There may, at first glance, appear to be some grain of truth in such a claim, but one should realize that the very first stigmatization occurs as 34 The Catalan Process soon as one decides to represent all stateless peoples in ethnic terms. It must be observed that the ethnic/civic dichotomy also forces itself into that argument, by implying that recognition is to be offered to a subgroup only if that group can be identified in ethnic terms, that is, on the basis of ethnic origin. Understood in this way, recognition is automatically associated with an approach that is couched in less-than-civic terms. It is assumed that since the subgroup cannot claim to be distinctively characterized in terms of the common citizenship that its members share with the rest of the community, its distinctiveness can only be captured in ethnic terms. Asking for recognition for a national group is thus equated with the acknowledgement of ethnic origin. It can, however, be replied that the most important stigmatization is the one that comes from imposing the ethnic/civic dichotomy when we are considering the possibility of recognizing stateless peoples. The ambivalence towards politics of recognition occurs only because we have chosen to stigmatize stateless peoples as groups having a specific ethnic origin. We have decided that demanding recognition is demanding an acknowledgement of one’s own ethnic origin. There is perhaps an important violence occurring as soon as we decide to interpret all demands for recognition in this narrow-minded way. A third and final criticism that I wish to consider very briefly against politics of recognition is based upon an opposite worry, for it is this time directed at the civic component of the ethnic/civic dichotomy. We are told that if recognition is couched in civic terms, we run the risk of forcing peoples into a particular legal system that has been created against them and that we are imposing upon them. This is particularly the case for indigenous peoples. In Canada, for instance, the Indian Act can be described as some sort of recognition, but it is paternalistic and plays against the very self-determination of indigenous peoples. Indeed, a system of apartheid is a certain kind of “legal” recognition, but it remains a racist legal system. Indeed, one might wonder whether there is any usefulness in a recognition that amounts to forcing the minority nation into a legal strait- jacket. The solution to this problem is perhaps to accept that the right to choose one’s own constitution is among the components of the right to self-determination, so that, among other things, indigenous peoples could be entitled to have their own legal system. Even if we understand recognition as granting rights and affording a legal status, the very first legal status that the people must have is one that relates to its ability to decide which constitutional order corresponds to its own aspirations. Choosing Peoples and Their Right to Self-Determination 35 one’s own internal constitutional order will then require amendments to the constitutional order of the encompassing state. This provision, I believe, should neutralize the tendency to force a people against its will into a legal mold that may itself be founded on misrecognition. We have now up to a certain point answered one question that we were asking at the outset: what is the problem with stateless peoples? The answer is that stateless peoples are not recognized and so we can immediately anticipate that the solution is that we should recognize them. The recognition of a stateless people need not take the form of the creation of a new sovereign state. Just as peoples need international recognition when they want to achieve sovereignty, stateless peoples need to be recognized by the encompassing state in order to self-determine themselves within that state. As we shall see in the last section, this will entail that the encompassing state adopts constitutional rules favouring the internal self-determination and thus the empowerment of minority peoples. But why should we recognize something whose existence has not been clearly demonstrated? What are peoples? Why should we enrich our social ontology with these strange entities? Why introduce macro subjects or social organisms into our ontology? Is it not very problematic to talk about peoples, assuming that these things exist? Before directly tackling these questions, we can immediately claim that peoples are already recognized in some way within international law.

2.2. What Kinds of Populations Are already Identified as Peoples?

It is notoriously difficult to provide a clear criterion of application for the word “people.” So one may wonder: is this not an impossible task? The first answer is that it is also very difficult to determine what persons are, from an ontological point of view, but this does not prevent us from talking about the rights of persons. There are controversial ontological issues associated with the concept of people, but there are also controversial ontological issues associated with the concept of person. After all, the debates concerning personal identity have not been resolved. The boundaries of the concept of person are still blurred. Where does the person begin? Is it when the embryo is more than five months old in the womb of a woman? And where does it end? Is it just before a human being finds itself in a vegetative state? These questions are not answered, but 36 The Catalan Process they do not prevent us from ascribing fundamental rights and freedoms to persons, at least when these are understood as citizens. So even if the concept of person is not entirely governed by fixed rules, it does not mean that we cannot operationalize it. We are able to do so because we consider only the institutional identity of persons. We consider them as citizens, landed immigrants, refugees, or permanent residents, without having to discuss the ontological status of persons. The topic of personal identity is a vexing issue that has led to a proliferation of metaphysical theories such as neo-Lockean criterion of identity (Derek Parfit6 and Sydney Shoemaker),7 the physical criterion of identity (Judith Jarvis Thomson),8 animalism (Eric T. Olson)9 and narrative identity (Daniel Dennett).10 There can also be individualistic and communitarian conceptions of personal identity. It can, however, be argued that political philosophy should travel ontologically light and that the only useful conception of person in that area of study is the political conception.11 I recommend treating the concept of people in the same way. No matter what they are from the point of view of social ontology, peoples form societies or societal cultures understood as sets of basic economic, social, cultural and political institutions.12 Peoples may be organized into sovereign states or not. They may have governmental organizations or not. But as societies or societal cultures, they have an institutional identity. The political concept of people that I wish to adopt is one that considers peoples only in the sense of a population having an institutional identity. Here I use Will Kymlicka’s concept of societal culture involving, first, a structure of culture: (i) language(s), (ii) basic economic, social and cultural (various art forms) institutions in which the language(s) is (are) spoken, and (iii) history of those institutions. In addition to this structure of culture, there is a character of culture: the customs, cultural habits, beliefs, values, and specific goals of the group.13

6. Parfit,Reasons and Persons, (third part). 7. Shoemaker, “Parfit on Identity,” 135-148. 8. Thomson, “People and Their Bodies,” 202-229. 9. Olson, “Animalism and the Corpse Problem,” 265-274. 10. Dennett, “Origins of Selves”163-73 11. Rawls, Political Liberalism, 19, 12-13, 145. The concept of political person is like a “module” that can be attached by citizens to their different comprehensive doctrines. 12. Here, I also follow Rawls, see his Law of Peoples, 23. 13. For the distinction between the structure and character of culture, see Kymlicka, Lib- eralism, Community and Culture, 162-168. Peoples and Their Right to Self-Determination 37

Political liberalism takes peoples at face value, as they are presented in the political realm. In that realm, they are institutionally organized societies. Even if they do not have a sovereign state or do not even enjoy self-government, they still have an institutional identity that must be respected and protected. For instance, the Acadian people does not have self-government, but it has its own flag, its own language, a history, celebrations, rituals, a newspaper, and various other cultural institutions. So even without any government, it has an institutional identity. With a political concept of people, we are able to use the term “people” as it occurs in international law. Of course, international law does not make use of a fully operational concept of people, but neither does it rely on a fully operational concept of person. Nevertheless, the concept of people is already operational enough. After all, international law recognizes first as “peoples” those populations that are organized into sovereign countries. These are the populations represented in the United Nations. There are also clear references to colonized peoples or peoples that are under siege, despotism, military occupation or some other kinds of political oppression. Since 2007, it also recognizes “indigenous peoples.”14 Apart from that, it would only recognize as peoples those minorities that have already been described as peoples by the encompassing state. This is the case for the population of Catalonia, granted that the Con- stitutional Court of Spain recognizes that the population of Catalonia forms a people in the sociological sense. Of course, even if article 2 of the Spanish Constitution recognizes the existence of nationalities (“nacionalidades”) and distinguishes them from regions (“regiones”), Spain does not recognize that Catalonia forms a people in the legal sense, but international law is able to describe as peoples those minorities that are treated as peoples in the sociological sense. It need not be bothered by the fact that the Spanish government refuses to recognize it in the legal sense. Since the population of Catalonia is treated as a people in the sociological sense even by the encompassing state, it should have the status of a people in international law. Similarly, the federal government of Canada, through a motion that was adopted in the House of Commons, and to a certain extent the Supreme Court of Canada as well, have recognized the existence of a Quebec people.15 In that sense, whatever international law

14. 61/295. United Nations, Declaration on the Rights. 15. See the Supreme Court of Canada, Reference re Secession of Quebec, paragraph 125. It is perhaps appropriate to note that the literature is replete with references to the Quebec 38 The Catalan Process has to say about peoples applies also to the Quebec population. To give a final example, it is a very well established fact that the population of Scotland forms a people. I was once told by a Scottish colleague that no one would ever dare to deny the existence of a Scottish people. So when international law talks about all peoples, it refers among other things to the population of Scotland. Some other minorities may perhaps deserve to be described as peoples, but for our present purposes, it is already quite enough to work with the concept of people, as it occurs in international law, for we are able to acknowledge the existence of peoples having sovereign states, of colonized and oppressed peoples, of indigenous peoples and of some minorities that have been recognized by the encompassing states as peoples.16 There are innumerable UN documents in which the word “people” is used. So, if the clauses containing this word are to make sense in these documents, it must be on the basis of a pragmatic use such as the one that I have just described. Even if we disagree on a common intensional characterization of peoples, we could still agree on a partially extensional

population as the “Québécois people.” The occurrence of the French adjective ‘Québécois’ in an English text suggests that the people of Quebec is composed only of French-speaking individuals. But I shall not follow this ethno-linguistic trend. The political concept of people must be an inclusive one. In the case of Quebec, the people must include all the citizens of Quebec. The inclusive concept of people is entirely legitimate if it goes hand and hand with the recognition of the collective rights of internal minorities. 16. In his Multicultural Odysseys Kymlicka discusses the problem of recognizing national minorities in international law. In his terminology, national minorities refer roughly to those peoples that are not indigenous peoples. Since he has described them in terms of minorities, he thinks that the only available protection for these national groups is article 27 of the International Covenant on Civil and Political Rights. (See footnotes 2 and 3 above for a reference to that article). But as a matter of fact, minorities that are recognized as peoples enjoy more fundamental rights in international law. They all have the right to internal self-determination and sometimes even a right to external self-determination. See for instance, article 1 of the same Covenant that stipulates: “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” Of course, this is a generic right that applies to all peoples whether sovereign or not, whether they are majorities or minorities and whether they are indigenous or not. In accordance with his multi-targeted approach, I share Kymlicka’s hope that one day, we shall have a Declaration similar to the one that was designed for indigenous peoples for the benefit of minority peoples (or “national minorities” as he wishes to call them). However, the generic right of self-determination described in article 1 of the Covenant clearly serves as a stronger basis for the recognition of that kind of right. As it now stands, article 27 does not apply to minority peoples and is not the relevant resource available for them. Again, the reason is that they can rely on the generic right asserting that all peoples have a right to self-determination. Article 27 only applies to ethnic minorities such as immigrant groups. Peoples and Their Right to Self-Determination 39 characterization. Peoples are societies involving either indigenous populations, colonized and oppressed populations located on specific territories, whole populations of sovereign states, or minorities that have been described as peoples by their encompassing states. To put the matter differently, there are various epistemological criteria of identification for peoples. I mentioned before that peoples present themselves in the political realm as societies, or societal cultures. Another criterion would be to rely on the habit of referring to a group as forming a people, either by the members of the group or by the encompassing state. It relies also on the habit of identifying a group as making nationalist claims or struggling for some kind of national self-determination. So we might want to say that if it forms a society, behaves like a people, describes itself as a people, or is recognized by the encompassing state as a people, then it is a people. This criterion of identification for people is at work in various UN documents and it is on the basis of this commonsense criterion of identification that we can make use of a political concept of people. Can we say more about peoples? How shall we define the notion? As I said before, this is notoriously difficult task.

2.3. A Terminological Caveat

Indeed, the most important difficulty is to provide an answer to the question, “What is a people?” Of course, this is not an easy question, but it gains special prominence in the context of a theory that seeks to acknowledge collective rights for peoples. I just gave a pragmatic answer to the question, which allowed us to recognize the existence of sovereign peoples, indigenous peoples, and various other kinds of stateless peoples. We shall now examine the issue of trying to define the concept of people more closely. Let us begin by discussing the distinction that some might want to make between nations and peoples. Let me say right off the bat that I do not really want to make a distinction between the two notions. My reasons for conflating them are numerous. We often talk about “first nations” but also refer to them as indigenous “peoples.” We talk about the United Na- tions, but also about the French, the Italian and the German “people.” We are used to talking about “nations” and “nationalism,” as well as “nation- building” policies and multination states, but in international law, “peoples” are the bearers of the right to self-determination. We often refer to 40 The Catalan Process

“peoples,” but we also often describe the population involved as having a certain national consciousness. So the distinction between the two notions is increasingly becoming abstruse. It is true that, in French, the word “peuple” has in the past been used in a more encompassing fashion, so that it could in principle contain many different “nations.” Conversely, in English, the word “nation” has often been used precisely the other way around, to indicate an entity encompassing many different “peoples.” But the more we are aware of these different uses in different languages, the more we realize how hard it is to justify a distinction between the two concepts. In fact, there may be a slight difference between the two, even though they have the same extension and even if I intend to use them interchangeably. From my point of view, the word “people” refers to the population that makes up the nation, while the word “nation” refers to the same population with its institutional organization. However, since these two notions have the same extension, I will make no difference between them in the remaining part of this paper. Moreover, since I intend to work with a strictly “institutional” conception of peoples, this should contribute to diminishing the distinction between the two words even more. In what follows, I intend to use the word “people” on a regular basis. I understand that some may be tempted for political reasons to distinguish the two concepts. Indeed, in order to contain populations that are not sovereign in an encompassing population that is sovereign, it might be tempting to stipulate that the encompassing population should be labelled differently from the non-sovereign populations. This is, for instance, what Will Kymlicka does when he considers a Canadian nation-state containing indigenous peoples and a Québécois national minority. In this case, a terminological distinction is made between nations and “national minorities,” but it does not change anything. The political reality remains the same. We have to confront our obligations to recognize stateless populations, whether we choose to describe them as peoples, as nations, or as national minorities. Furthermore, there is no objection to describing multination states as involving nations within nations or peoples within peoples. Our main concern should be to refrain from imposing new normative constraints on the existing vocabulary and on the current uses of that vocabulary. I think we should adjust ourselves to the way everyone talks about persons and peoples. Since we tend to use the words “people” and “nation” interchangeably, the suggestion is to accept this situation without forcing these uses into a Procrustean terminological bed. The important thing is not the distinction between peoples and nations. The important Peoples and Their Right to Self-Determination 41 thing is the existence of different sorts of peoples (or different sorts of nations). When we take the existence of various sorts of peoples seriously, it then becomes quite natural to say that some peoples are parts of other peoples, or that some nations are parts of other nations.17

2.4. Defining Peoples and Other National Groups

Most authors today agree that it is extremely difficult to come up with a simple, unequivocal definition of “people.” However, the problem springs from the fact that there are several kinds of peoples. This is perhaps what makes it so difficult to identify a definitive list of shared features. The best way to get out of this dilemma is to adjust ourselves to the way we talk about peoples. If we do so, we will find out that the word “people” has many different uses. I think there are at least seven different kinds of peoples corresponding to those uses. These different concepts correspond to different national self-representation. In particular, there are ethnic, cultural, civic, socio-political, diasporic, multi-societal and multi-territorial peoples. This technical vocabulary is used in order to take into consideration the various uses of the word “people,” in our ordinary parlance. It is important to engage in an examination of the concept of people, because as such, the above political concept of people, understood as a society or societal culture, does not yet fully capture the most important features of peoples. It is perhaps true that all peoples form societies and have an institutional identity. But not all societies are peoples. For instance, many Spanish regions (with the exception of Catalonia, Basque country, Galicia, Navarre and Valencia), Canadian provinces (with the exception of Quebec and perhaps Newfoundland), German Länder (with the exception of Bavaria), Swiss cantons, and even cities form distinct societies. And yet, these societies do not form peoples all by themselves.

17. Allowing different concepts of peoples also offers a very simple solution to the debate between Modernists and Pre-modernists. Modernists like Benedict Anderson, Liah Green- feld and Ernest Gellner see the origin of nations as intimately linked with various modern features such as print capitalism, liberal individualism, or the development of an educational system. See Gellner, Nations and Nationalism; Anderson, Imagined Communities; Greenfeld, Nationalism. Pre-modernists, in contrast, see nations emerging from “ethnic groups” that were there for quite some time and long before the development of the modern state. See Smith, Ethnic Origins of Nations. But if I am right, modernists and pre-modernists simply rely on divergent existing uses of the term “nation”. As we shall see, there are many different uses of the term “people.” 42 The Catalan Process

So we need a more refined set of criteria. These are located in the self- representations of citizens. Members of an ethnic people identify themselves as sharing the same ancestral origins without relying on self-government and are mostly contained entirely within the limits of an already existing encompassing sovereign state.18 A certain number of indigenous peoples find themselves entertaining this kind of self-representation. Members of a cultural people believe they have different ancestral origins, but share the same mother tongue, institutions, and history, still without relying on self- government and they are mostly inside the frontiers of a sovereign state (e.g., the Acadians inside New Brunswick). Members of a civic people share the same country and believe that there are no stateless peoples within that country (e.g., Iceland, Portugal, Korea). Here, the word “civic” is understood in a more restrictive sense than usual, since I restrict its application to sovereign states in which it is believed that there is only one people. Members of a sociopolitical people are part of a population run by a government that is not sovereign but that contains within its frontiers the world’s largest sample of a group sharing the same language, institutions and history (e.g., Scotland, Catalonia, Quebec, Nunavut). Members of a diasporic people belong to a group whose members have the same language(s), culture and history, but are scattered as minority fragments across different discontinuous territories and also form minorities in each of these territories (e.g., the former Jewish Diaspora and the Roms). Mem- bers of a multi-societal people are part of a sovereign state and see this state as comprising several peoples (e.g., Great Britain, Spain, Canada). Finally, members of a multi-territorial people see their group as sharing the same language(s), culture and history, but also as located in a continuous area that does not correspond with legally defined borders. For example, the Kurdish people occupies a non-fragmented area (Kurdistan) that crosses the official borders of existing states. This also applies to the Mohawk people who, in Akwasasne, occupy a territory that overlaps the territories of Ontario, Quebec and New York State. I have just introduced seven different sorts of peoples: ethnic, cultural, civic, socio-political, diasporic, multi-societal and multi-territorial. It is important not to confuse peoples and minority fragments of peoples. These are groups that do not describe themselves as peoples, nor do they

18. Here I use the word “ethnic” in a more restrictive sense than usual and not in the more traditional wider cultural sense. Peoples and Their Right to Self-Determination 43 ask for self-government or behave as nationalist movements. But they are national groups all the same, sharing some features with peoples and also entitled to collective rights. I distinguish between two different sorts of such minorities: contiguous diasporas and non-contiguous diasporas. Contiguous diasporas19 are extensions of neighbouring peoples: Russians in the Baltic states, Pales- tinians in Israel, Serbs in Bosnia, Hungarians in Slovakia, etc. They are sometimes called “kin minorities.” They are populations that, so to speak, find themselves “on the wrong side of the borders.” These minorities do not necessarily see themselves as part of their neighbouring peoples. Nev- ertheless, they are in any case entitled to collective rights. For instance, Russian minorities within the Baltic States do not necessarily describe themselves as part of the Russian people, but as a group, they deserve to be recognized for their distinctive cultural features. Peoples also have to be distinguished from non-contiguous diasporas. These are minorities that are related through language, culture and history not with a neighbouring country, as is the case of continuous diasporas, but with foreign countries. This is often because they were born in these foreign countries. In a way, they are fragmented and autonomous pieces of those peoples they are coming from, without necessarily still being part of those peoples. Whether or not they see themselves as belonging to the foreign people, as minority fragments of peoples, they have distinct collective rights. Non-contiguous diasporas can be subdivided into several different types. It can of course be applied to the case of communities resulting from immigration, such as Libyan refugees in Italy. However, it can also be applied to historical communities that have been established for a long time but that continue to identify themselves with a foreign country of origin. Examples of such groups are the Jewish, Chinese and Italian communities in New York City or the second generation of Pakistanis in Great Britain.

2.5. Internal Self-Determination

I have now very briefly described seven kinds of peoples and two basic kinds of minority fragments of peoples. I hope that this gives a fairly good picture of all the various national groups that could be entitled to some

19. I owe the expression to Kumar, “Settling Partition Hostilities,” 247-270. 44 The Catalan Process kind of recognition and be afforded collective rights. Let us now turn to our final question. What should we do in order to acknowledge, respect, and protect peoples in general, but also stateless peoples in particular and minority fragments of peoples? I already acknowledged that we had to recognize them. But how should this work? Peoples that own a legitimate sovereign government may have, among other things, the right to independence, but there should also be rights for peoples that do not own a state. They have a right to internal self- determination and may even have the right to secession under certain conditions. We should be able to introduce a regime of individual rights for persons and a regime of collective rights for peoples side by side. There are two ways for a people to be recognized: by the international community and by the encompassing state. These two ways support two different ways of exercising self-determination. We usually understand the exercise of self-determination as secession, i.e. the creation of a brand- new sovereign state. But this is because we mistakenly equate self-determination only with one particular form, that is, as external self-determination. But one must distinguish between external self-determination and internal self-determination. The right to external self-determination amounts to the right to own a state, or the right to secede and create one’s state, or the right to freely determine the state with which we want to be associated. The right to internal self-determination, by contrast, is the right to develop itself economically, socially, and culturally and the right to determine one’s own political status within the encompassing state. This is the definition that one finds in almost all UN documents from 1966 to this present day. It is true that initially, self-determination meant the right to secede, but after the end of decolonization, sovereign states were able to impose the view that territorial integrity superseded the right to self-determination. It was precisely at that time that, sud- denly, self-determination was first and foremost used to mean internal self-determination. Just as a people organized into a state may be said to exercise its self-determination in the sense that it enjoys full sovereignty over a given territory, a people may in principle enjoy a similar kind of autonomy as a component political entity within a single sovereign state. As stated by the Supreme Court of Canada,

While the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights do not specifically refer to the protection of territorial integrity, they both define the ambit of the right Peoples and Their Right to Self-Determination 45

to self-determination in terms that are normally attainable within the framework of an existing state. There is no necessary incompatibility between the maintenance of the territorial integrity of existing states, including Canada, and the right of a “people” to achieve a full measure of self-determination.20

We are less accustomed to this latter form of self-determination. So we are also less accustomed to the idea of politics of recognition, understood as a set of policies meant to support the exercise of internal self-determination. The issue of recognition by the encompassing multination state is one that has not been taken seriously enough by scholars and politicians. How- ever, just as peoples can only achieve a complete and successful external self-determination with the recognition of the international community, stateless peoples can only achieve internal self-determination with the help of the encompassing state. There are at least five ways of exercising internal self-determination. (i) We can be inclined to say that a people exercise internal self-determination when it is politically represented in the political instances of the encompassing state. That is, the central state is representative of the population as a whole and not just representative of a portion of that population (for instance, the national majority). (ii) A second way of exercising internal self-determination is the right to participate in all the constitutional discussions within the encompassing state. That is to say, the people must be part of the constituent assembly and participate in the writing and rewriting of the constitution. (iii) The third way for a people to self-determine itself would be to exercise the right to have its own internal constitution, like for instance, in the USA where federated states often have their own specific constitutional arrangements in addition to those of the federal state. (iv) A fourth way would be to enjoy self-government with some political leverage and fiscal autonomy. This would require a certain amount of de facto or de jure decentralization, leading to a distribution of powers and a fiscal ability to exercise these powers. (v) The last and perhaps most important instance of internal self-determination is to enjoy “politics of difference,” which means that the state would implement a set of distinctive policies that are designed specifically for the national group. It is here that recognition becomes a politics of esteem and not just politics of equal respect. Recognition then becomes the assignment of a differential status that is made to measure

20. Reference re Secession of Quebec, op. cit., par. 130. 46 The Catalan Process for a specific national group. An example of this would be to allow for a special status to a federated entity within the state, or to adopt a policy of asymmetric federalism, or even a policy of opting out with financial compensation when the central state chooses to develop a program in an area of exclusive provincial jurisdiction. Politics of recognition must not only allow for the establishment of an equal status but also of a differential status. This implies a set of specific provisions that would enable the people to benefit from a special devolution of powers.

2.6. From Internal Self-Determination to Secession

What does international law tell us about peoples? It stipulates that they all have a right to internal self-determination, that is, a right to develop themselves economically, socially, and culturally, and the right to determine their own political status within the parent state.21 It also stipulates that “colonized peoples” and “peoples subjected to oppression and despotism,” as well as those peoples whose right to internal self-determination has been violated have the right to external self-determination. That is, peoples have the right to own a sovereign state if they are either colonized, oppressed, or cannot self-determine themselves within their encompassing states.22 In other words, international law clearly stipulates that a people cannot violate the territorial integrity of a state that would treat all its constituent peoples on an equal basis and that would respect the self- determination of these peoples. If a minority people, for instance, is able to develop itself economically, culturally, socially within a state and able to determine its own political status within that state, it does not have the right to violate the territorial integrity of the state.

21. The right to self-determination is recognized as a right that all peoples have in the first article of the International Covenant on Civil and Political Rights as well as in the International Covenant on Economic, Social and Cultural Rights which both entered into effect in 1976. In both cases it is stipulated that “All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” The right to self-determination of peoples is recognized in many other international and regional instruments, including the Declaration of Principles of International Law Concerning Friendly Relations and Co-operation among States adopted by the UN General Assembly in 1970. 22. I repeat that I am sympathetic to a multi-targeted approach like the one suggested by Kymlicka that would allow for specific rights for different kinds of peoples. There would thus be specific rights and obligations for peoples that already have sovereign states, distinct from those of indigenous peoples and those of stateless peoples. Peoples and Their Right to Self-Determination 47

The Declaration on Friendly Relations, the Vienna Declaration and the Decla- ration on the Occasion of the Fiftieth Anniversary of the United Nationsstate, immediately after affirming a people’s right to determine political, economic, social and cultural issues, that such rights are not to “be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction.”23

It is a well known and established fact that colonized peoples or peoples that have been subjected to despotism are entitled to have their own state. It is less an established fact that a people is also justified in seceding if it is not able to exercise its internal self-determination. That is, if the encompassing state does not allow the stateless people to develop itself economically, socially, and culturally, and especially if it is not able to determine its own political status within the encompassing state, then the stateless people is entitled to secede. The Supreme Court of Canada confirms that in addition to colonization and oppression, the violation of the right to internal self-determination is a third justification for secession:

A number of commentators have further asserted that the right to self-determination may ground a right to unilateral secession in a third circumstance. Although this third circumstance has been described in several ways, the underlying proposition is that when a people is blocked from the meaningful exercise of its right to self-determination internally, it is entitled, as a last resort, to exercise it by secession. The Vienna Declaration requirement that governments represent “the whole people belonging to the territory without distinction of any kind” adds credence to the assertion that such a complete blockage may potentially give rise to a right of secession.24

So it becomes important to determine under what circumstances a stateless people can exercise its internal self-determination. Some are tempted to reduce internal self-determination to political representation. If the encompassing state is representative of the population because, for instance, the population elected its own representatives and these play a role in the

23. Supreme Court of Canada, op. cit., par. 128. 24. Ibidem, par. 134. 48 The Catalan Process central government of the state, then it is according to some all that is needed in order to say that the stateless people self-determines itself internally. This is for example, the view of the Supreme Court of Canada.25 For others, internal self-determination must entail that the stateless people be part of a continuous constitutional conversation and be involved in any decisions to modify the constitution. This is the view of new constitution- alists such as James Tully.26 Others suggest that internal self-determination for a stateless people is the enjoyment of self-government. This is, for instance, the way Will Kymlicka sees internal self-determination.27 So, for instance, if the British state were unable to transfer powers and allow the Scottish government more fiscal autonomy, it would amount to a violation of their internal self-determination. Internal self-determination should also allow a people to establish its own internal constitution just as the Catalans did when they approved their new constitutional statutes in 2006.28 By refusing some essential parts of the new statutes that were requested by the Catalan government and supported by the Catalan people in a referendum in 2006, the Spanish constitutional court failed to recognize the right of the Catalan people to internal self-determination.29

25. Supreme Court of Canada, op. cit., par. 136: “The population of Quebec cannot plausibly be said to be denied access to government. Quebecers occupy prominent positions within the government of Canada. Residents of the province freely make political choices and pursue economic, social and cultural development within Quebec, across Canada, and throughout the world. The population of Quebec is equitably represented in legislative, executive and judicial institutions. In short, to reflect the phraseology of the international documents that address the right to self-determination of peoples, Canada is a “sovereign and independent state conducting itself in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction.” 26. Thus Tully writes: “The meaningful exercise of the right to internal self-determination consists not only in the exercise of certain powers of political, economic, social and cultural development, by means of institutions of self-government, protection of distinctness and federalism, but also in having a democratic say over what those powers are, how they relate to and how they are recognized by the other members of the multinational association, and to be able to amend them from time to time. If this were not the case, then the people would have a certain distribution of powers and recognition imposed on them by the constitution of the larger society, beyond their determination. The constitution would be a straightjacket and they would not be self-determining.” Tully, “Introduction,” 32. 27. Kymlicka, Multicultural Odysseys, 206-213. 28. http://web.gencat.cat/en/generalitat/estatut/estatut2006/. 29. Ruling 31/2010 of the Constitutional Court of June 28, 2010 (RCC 31/2010). Peoples and Their Right to Self-Determination 49

Without rejecting these various ways of allowing the exercise of internal self- determination, there is an additional important aspect that must be involved and cannot be ignored. Sometimes, a people may fail to be afforded a special legal status and thus may fail to be treated differently when compared with the other regions, federated states or provinces in the country. It may fail to be afforded an asymmetrical arrangement involving some kind of specific political and fiscal autonomy. It may fail to get a special right of opting out with financial compensation on any given programs put forward by the central state. It may fail in its attempt to implement amendments to the constitution of the country that would acknowledge the legality of its internal constitution. All these examples reveal the importance and relevance of this additional layer of internal self-determination that I have described as a “differential status” supported by politics of difference. Political representation, constitutional participation, self-government and internal constitution are important, but the most important arrangement that the state should allow in order to recognize a people’s right to internal self-determination is perhaps to allow for some kind of differential status. If the state systematically refuses this differential status, then clearly, the state is not allowing the people to determine its own political status within the sovereign state. This situation occurred for the Quebec people when the Meech Lake Agreement failed in 1990. When a stateless people is unable to get recognition from the state, it may legitimately choose to get recognition from the international community and thus try to achieve full independence. It could be argued that stateless peoples do not have a primary right to try to become independent. That is, they must first try to make an arrangement within the encompassing state. If they fail in their attempt to get recognition, then they have a right to secede. I endorse the remedial account of secession according to which colonization, oppression and the inability to exercise internal self-determination are legitimate justifications for secession. That is to say, unilateral secession, as contrasted with a negotiated secession, can only be legitimate if some kind of injustice has been committed by the central state. There is no such thing as the unilateral primary right of a people to secede, that is, a right to secede in the absence of injustice. A people is entitled to secede only if it is colonized, oppressed or not entitled to internally self-determine itself within the encompassing state. But this last condition should not be reduced to the right to political representation. Peoples must also have the right to participate 50 The Catalan Process in the constitutional conversation, be entitled to self-government and be entitled to establish their own internal constitution. Most importantly, they have a right to a differential legal status. Without these, it may be right to conclude that it cannot determine its own political status within the encompassing state.

2.7. Conclusion

The Quebec, Scottish, and Catalan peoples are quite different but they also enjoy similar features. They are all socio-political peoples and they all form liberal democratic societies. They all face huge difficulties in trying to achieve political recognition from their respective encompassing state. Even more importantly, these three peoples are modern societies that do not fit the traditional model of nationalist movements. Specifically, they are not “nationalist” in the sense understood by Ernest Gellner. They might be in some sense “nationalists,” “sovereignists,” and “secessionists,” but no one among them believes that the frontiers of the state must always coincide with the frontiers of the people. A majority of members in these movements disagree with the idea that all peoples have a primary right to secede, that is, a right that they have even if they have not been subjected to some kind of important injustice. Moreover, they all have legitimate justifications for secession. Finally, and perhaps most importantly, these three movements do not want to reach full independence. The Scottish and Catalan peoples want to remain inside the EU after secession and even within the Eurozone. Similar observations can be made concerning Quebec. In the two referendums that took place in 1980 and 1995, the question was whether Quebeckers would want to form a sovereign state while remaining within an economic union with Canada. That is, there would be free trade, a trade union, a common market and a common currency shared by Quebeckers and Canadians. Canada, Spain and Great Britain are now at the crossroads. They may choose to recognize the stateless peoples that are in their territory or choose not to adopt politics of recognition for them. But insofar as they refuse to provide them with internal recognition, they violate the right to internal self-determination of their stateless peoples and give them a legitimate justification for secession. Peoples and Their Right to Self-Determination 51

References

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Smith, Anthony D. The Ethnic Origins of Nations. Oxford: Blackwell Pub- lications, 1998. Taylor, Charles. “The Politics of Recognition.” In: Amy Gutman (ed.). Mul- ticulturalism. Princeton: Princeton University Press, 1994. The Supreme court of Canada. Reference re Secession of Quebec, [1998] 2 S.C.R. 217. Thomson, Judith J. “People and Their Bodies.” In: Jonathan Dancy (ed.). Reading Parfit. Oxford: Basil Blackwell, 1997. United Nations. Declaration on the Rights of Indigenous Peoples, 61/295, 2007. http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf. 3 The Ultimate Check: Republicanism, Multinational Federations and Right to Secession

Lluís Pérez

Federal arrangements (and, particularly, the multinational federation) are among the most recurrently proposed alternatives to secessionist drives in modern democracies.1 Interestingly, it has been supported by different scholars as the proper embodiment of a republican understanding of self- determination.2 This chapter tries to explore this idea, specifically focusing on the brand of republicanism espoused by Philip Pettit and others, in which freedom is understood as non-domination. To put it as a research question: do multinational federations constitute good institutional designs in terms of ensuring non-domination in secession conflicts? My answer is, as we will see, is that they could be... only if they recognize a non-unilateral right of secession for their constituent units. This answer is based on two core ideas:

1. By “modern democracies” I mean those modern polities which combine universal suffrage, free and fair multi-party elections and a robust body of citizens’ rights, whether only first-generation rights or also second and third-generation. I prefer to use the term “modern democracies” rather than the more common “liberal democracies,” since liberalism is just one of the main sources of the rights and institutions that characterize our current democracies: other traditions such as republicanism, socialism or feminism have also led modern democracies to adopt some of their key features such as checks and balances, socio-economic rights, or universal suffrage. This is important for a normative analysis on secession since some of the problems related to it have to do with some features of modern democracies that derive (at least in part) from traditions other than liberalism (e.g. redistribution of wealth, initially demanded by the labour movement and the Socialist parties). 2. Caminal, “Lectura republicana,”11-38; and Young, “Self-determination,” 139-159. 54 The Catalan Process

(1) republicanism seeks to handle factional conflicts in order to prevent any faction from reaching arbitrary power; and (2) secession conflicts are but one type of these factional conflicts, though one requiring a specific treatment, different from other factional conflicts traditionally addressed by republican thinkers (such as class struggle). In order to develop this answer, I have divided this chapter into six sections. In the first one I have defined the basic concepts of “republicanism” and “secession” (as well as other related ones); I have also devoted the first section to explore how secession conflicts should be regarded from a republican point of view. In the second section, I have turned to exploring the relation between republicanism and federal designs, while in the third I have narrowed this exploration specifically to multinational federal arrangements. The findings of sections two and three lead to the fourth one, where I argue that, although there are good republican reasons to favour multinational federal arrangements, those arrangements will nevertheless be incomplete unless they are coupled with a non-unilateral right of secession under international arbitration. In the fifth section I have applied this theoretical framework to explore a specific secession conflict in a modern democracy: the Catalan one. Finally, in the sixth section I have summarized the conclusions of the chapter.

3.1. Republicanism and Secession

3.1.1. What Does “Republicanism” Mean?

I will start by defining the concept of “secession” as well as some others related to it. There is not a unanimously accepted definition of the concept, but here I will employ one of the most restrictive (and common) ones, which does not include related phenomena such as decolonization or irredentism: “the creation of a new state by the withdrawal of a territory and its population where that territory was previously part of an existing state.”3 Secessionistssupport the secession, so understood, of a broader group of people (their target population) in a given territory. Whenever secessionists are a majority within the target group, this group becomes a secessionist community. When secessionists succeed in transforming their target group into a secessionist community, a secession conflict arises be-

3. Pavkovic, and Radan, Creating New States, 5. The Ultimate Check: Republicanism, Multinational Federations and Right to Secession 55 tween secessionists and unionists (i.e. opponents of secession). In a secession conflict, unionists aim to keep their polity united and avoid any international recognition for secession, while secessionists seek the withdrawal of their target population and territory from that polity in order to form a new one, as well as international recognition for it. Now I will specify what I understand by republicanism. Nowadays, we can distinguish between two main rational reconstructions of the republican tradition: (1) positive republicanism, in which freedom and human good are identified with citizen participation in public affairs;4 and (2) negarchist republicanism,5 in which freedom means non-domination, and domination means the power of one individual or group to exercise arbitrary6 interference over another individual or group.7 Current republican literature tends to label positive republicanism as “neo-Athenian” and negarchist republicanism as “neo-Roman”; but I find this terminology to be historically misleading.8 This chapter is built upon a negarchist reconstruction, arguably the main one among current republican scholars: the one by Philip Pettit,9 which in turn is built upon the work of Quentin Skinner.10

4. Arendt, On Revolution, 30. Habermas, “Human Rights and Popular Sovereignty,” 1-13; and Sandel, Democracy’s Discontent, 4-7. 5. Deudney, Bounding Power. Negarchy is the term employed by Deudney (p. 48) to label the kind of political order for which republicanism stands (both in the domestic and the international arena), in opposition to hierarchy (where actors are in ordinate and subordinate relation), and anarchy (where actors are not authoritatively ordered). Both anarchy and hierarchy imply unrestrained (thus, arbitrary) power of different actors; in negarchy, on the contrary, actors are authoritatively ordered by relations of mutual restraint. Deudney names his own theory as “republican security theory” or “security-restrain republicanism” (p. 3-5), and explicitly links it to Skinner’s views (p.15). Though his work is focused on the arbitrary power founded on violence, he nevertheless acknowledges that “no complete security theory or even exegesis of all republican security theorizing could be complete without more extensive treatment of ideational factors as well as political economy” (p. xiv). 6. An arbitrary power is any power capable of interfering in our activities without the need of considering our interests and/or opinions. This definition is in turn based on Skinner’s one quote Skinner. 7. Deudney, Bounding Power; Pettit, Republicanism; Pettit, On the People’s Term; Skinner, Liberty before Liberalism, and Skinner, “A Third Concept of Liberty,” 237-268. 8. Athens was probably far from being the populist ochlocracy that its aristocratic critics have denounced for centuries, being closer to a balanced republic with several power restraint mechanisms over democratic majorities and elected officers (Deudney, Bounding Power, 101-102; and Hansen, Athenian Democracy in the Age of Demosthenes.) 9. Pettit, Republicanism. 10. Skinner, Liberty before Liberalism. 56 The Catalan Process

According to Pettit: (1) republicanism stands for freedom as non-domination; (2) it argues that, in order to promote republican freedom, private sources of power (e.g. wealth) must be checked, controlled and dispersed by the state; (3) it argues that, in order to prevent the state from becoming dominating itself, it must be organized as a constitutional republic, with its own powers being checked, controlled, dispersed, prevented from being monopolized by any faction, and kept under the rule of law and the vigi- lance of a civically virtuous citizenry;11 and (4) it argues that civic virtue is unattainable without freedom, hence establishing a relationship of mutual dependence between republican freedom and civic virtue. Moreover, democratic republicanism, as opposed to oligarchic brands of the republican tradition, (5) seeks this republican citizenship, based on republican freedom and civic virtue, to be as extended among people as possible.12 A key point of republicanism so conceived is its understanding of factional conflicts. We can define factions as groups of people with some common perceived interest translated into a common political purpose. Almost all historical republican thinkers understood that every political community was divided between factions contending to win political power; whether they observed this conflict with sympathy (as Machi- avelli) or with dislike (as Madison), they all agreed in asserting that the dispersion of the power of the states among different institutions was not only needed in the face of the natural tendency of government officers to abuse of their power, but also in face of the risk of a factional takeover, which would bring the definition of the political community as a res pub- lica (public matter) to an end by transforming it into a res privata(private matter) of the ruling faction.

3.1.2. Secession Conflicts and Domination

In my view, as I have said elsewhere,13 republicanism should assume that contenders of secession conflicts must be understood as factions, implying that a normative analysis of secession and secession conflicts must include a republican concern for minimizing the risks of factional takeover and/or

11. I.e. predisposed, whether for intrinsic or instrumental reasons, to participating in politics for the sake of the common good of the republic. 12. From now on, whenever I speak of “republicanism” I will be speaking about democratic republicanism. 13. Pérez-Lozano, “Republic and its boundaries.” The Ultimate Check: Republicanism, Multinational Federations and Right to Secession 57 wide exclusion from citizenship. In republican terms, secession conflicts pose, concretely, four threats:14

(1) Exclusion: some people who would be directly affected by secession may be excluded from deciding on it (e.g. an ethnic minority within the seceding territory). (2) Domination by blackmailing minorities: in case of being entitled to secession, powerful minorities (e.g. wealthy ones) could blackmail the rest of the polity. (3) Domination by arbitrary permanent majorities: secession conflicts are usually (though not always) the ultimate expression of particularly deep centre - periphery conflicts, in which the centre and a given regional periphery of the state are politically controlled, respectively, by a permanent majority and a permanent minority,15 both of them defined along permanent disagreements on how the state should be conceived and organized in terms of economy (i.e. territorial organization of it), territory (i.e. territorial distribution of political power) and identity,16 so that without a feasible exit option, permanent minorities would be at mercy of arbitrary permanent majorities. (4) Instability, i.e. the risk that a bad handling of secession conflicts, and even the absence of any handling at all, would promote instability, eventually placing the conflict under a “might makes right” logic, thus triggering exclusion and/or domination.

I think there are good reasons to be skeptical about the potential of current theories on the right of secession (namely plebiscitarian, ascriptive

14. Ibidem, 14. 15. Which, in turn, is a permanent majority in its regional territory. 16. Rokkan, and Urwin, Economy, Territory, Identity. Rokkan and Urwin provide a good account for how nationalist conflicts (the most common form of these conflicts between permanent majorities and minorities) are related to these three fields. The authors explain nationalism as a reaction against to what is perceived as the peripherization of one’s territory in terms of economy, territory, and identity; that means that in a given territory, a good number of people come to the conclusion that important decisions in these three fields are being made outside their territory, with no need of it (the given territory being perceived as capable of self-government) and without great regard to the prosperity of the people of this territory. 58 The Catalan Process

and remedialist theories)17 to handle these four risks at once.18 However, the point of this chapter is not to address this, but to explore the potential of multinational federations as institutional environments able to contain these threats in secession conflicts. In order to move forward in this task, the next section turns to explore the relationship between republicanism and the federal state.

3.2. Size, Freedom and the Federal Republic

3.2.1. The Size of the Republic

The oldest of the current federal states is the United States of America. Its federal design is entrenched in its 1789 Constitution, which in turn was a product of the critical years that followed the American victory in the War of Independence. Prior to the adoption of the Constitution, the U.S. was a loose confederation governed by a weak Congress, basically in charge of defence and foreign relations functions. Such a government, many founders thought, was too weak to undertake the new common problems the states faced after the war, such as the management of the public debt. This led to the Philadelphia Convention of 1787 in which the Constitution was drafted; it created a stronger central government, which shared sovereignty with the states instead of simply being a common board of sovereign states. It took one year to have this federal Con- stitution ratified. In the process, a heated debate raged all over the young country between the Anti-Federalists, who opposed the Constitution, and

17. Theories of unilateral right of secession differ on who they acknowledge as entitled to secession: any secessionist community (plebiscitarianism), culturally encompassing groups (ascriptivism), or groups unjustly and intolerably harmed by the state, particularly (though not necessarily only) in terms of basic human rights. 18. Pérez-Lozano, “Republic and its boundaries,” 14-22. Briefly speaking: plebiscitarian and, to a lesser extent, ascriptive theories open the door for blackmailing minorities. Besides, ascriptive theories may justify exclusion of ethnic and/or cultural minorities within the potentially secessionist territory. Remedialism is biased towards the status quo, thus making permanent minorities vulnerable to the arbitrary rule of permanent majorities. And all they, partly because of their bias towards one of the two sides of any secessionist conflict, are highly unlikely to be accepted by the other side, thus leading to instability. To make things worse, instability is also the likely result of simply rejecting all three unilateral TRS without providing any alternative. The Ultimate Check: Republicanism, Multinational Federations and Right to Secession 59 the Federalists, who supported it. On both sides, the influence of the republican tradition was noticeable,19 even esthetically.20 Among the republican arguments used in the debate, many of them concerned the ideal size of a republic. The Anti-Federalists argued that, since Aristotle, all republican thinkers had assumed that a republic could only be established upon a small political community. Only there, it was thought, citizen self-government could take place by means of more or less direct participation; and it was through this self-government that a virtuous citizenry would control their governments and prevent them from becoming dominating. The Federalists answered that the danger of a factional takeover was greater in smaller republics than in the federal state designed by the new Constitution, since its power was dispersed between two co-sovereign levels of government.21 Thus, the federal organization of the state was understood, by the Federalists, as a step forward in the architecture of checks and balances that republican thinkers had historically defended. Besides, the Federalists noticed that when Aristotle said “small,” he meant “small” like a Greek polis, not like Virginia or New York, territories of the size of England. This was, indeed, the most obvious root of the problem: classical republicanism was intended to be applied to city-states, in which direct participation in city politics was possible. In a modern state, normally far larger (territorially and geographically) than the common classical city-state, republican thinkers sought to adapt classical republican doctrines to modern conditions. The common point here was a reliance on representative institutions. This was a solution to the problem of articulating citizen participation in the modern state, which, nevertheless, did not provide indications on how to organize power within the state, territorially speaking. A possible solution to this challenge was proposed by most French republicans: the centralization of all power in institutions intended to represent the whole population of the state. I will not deal with this solution in this chapter, for my interest is focused on federal designs. However, if we assume that the danger of permanent majorities is real (at least in those heated centre-periphery conflicts that have become secession conflicts),

19. Pocock, Machiavellian Moment. Wood, Radicalism of the American Revolution. 20. The participants of the debate used to choose names of venerable figures of the Roman Republic (“Cato”, “Publius”) as literary pseudonyms. 21. This was Madison’s reasoning in The Federalist no. 10, for instance. 60 The Catalan Process then centralized states are obviously not any solution. Another possible solution was the American Federalists’ one. As we have seen, the federal organization of the state was presented as a check, among other things, on the excessive concentration of power. However, it was also a way to articulate a negarchic order between different political communities. Let’s turn to this point.

3.2.2. Federation as Negarchy

Deudney offers a perspective of the republican concerns about size as related to security problems.22 According to Deudney, republican thinkers like Machiavelli regarded small republics as vulnerable to external foreign conquest in an anarchic international system. The way to solve this security problem was through external expansion; however, the example of the Roman Republic showed how expansion led to internal im- balances of wealth and power among citizens, which eventually resulted in civil wars and anarchy, only overcome by the rise of a hierarchic autocracy. According to Deudney, “the culmination of Enlightenment republican international theory is the U.S. Constitution of 1787, which its architects characterized as a ‘compound republic’ or ‘federal union.’ It was explicitly designed to prevent North America from becoming a Westphalian system of hierarchic units lodged in anarchy.’’23 Thus, the ideal of the Federalists was to avoid a Westphalian North America by creating a “republic of republics.” This way, republicanism would manage not only to minimize domination within political communities, but also between them. However, it did not take long until the problems of this promise arose. One thing was to say that the states and the federal government were co- sovereign, and quite another one was to specify what that meant. Particu- larly because already at the outset of the new federal republic, secession cast a shadow over it. Thus, the Kentucky and Virginia Resolutions of 1798 and 1799, while not being straight-forwardly secessionist, nevertheless advanced the doctrine of nullification, which, in the end, vested ultimate sovereignty in the states. And from then onwards, diverse American statesmen expressed either anxiety (e.g. Andrew Jackson) or support (e.g. John Calhoun) for the idea of the right of secession. The solution for the

22. Deudney, Bounding Power, 16. 23. Ibidem, 16. The Ultimate Check: Republicanism, Multinational Federations and Right to Secession 61 controversy is well-known: it was the Civil War, after which the doctrine of the sovereignty of the states was gone. Abraham Lincoln, the leader of the unionist camp in the war, was plain republican in arguing against secession as a threat to liberty:

Plainly, the central idea of secession is the essence of anarchy. A majority, held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it, does, of necessity, fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.24

Here we find the two extremes that Deudney indicated as the nemesis of republicanism: anarchy and hierarchy (“despotism”). Republican negarchy consisted of a government by “a majority, held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments.” The problem that Lincoln precluded is when such a majority does not change “easily” through changes of popular opinions and sentiments. That is, when such a majority is permanent. In a way, federalism could be seen as a check against permanent majorities: a permanent majority at a federal level can also be a minority at the federated state level. Nevertheless, however refined a federal constitution happens to be, the truth is that in most federations (e.g. in the U.S. themselves) the interpretation of the Constitution, and therefore of the attributions of each governmental tier, lies in the hands of federal institutions (and, particularly, of the Supreme or the Constitutional Court). It could be argued, though, that this is a problem of uninational, symmetric federations such as the American one. Multinational (and, usually, asymmetric) federal agreements could handle secession conflicts and contain the threats of exclusion, instability and blackmailing minorities without falling prey to the threat of arbitrary permanent majorities. I will devote the next section to exploring this idea.

24. Lincoln, Lincoln Speeches, 115. 62 The Catalan Process

3.3. Multinational Federal Arrangements as an Alternative to Secession

3.3.1. What is a Multinational Federation?

Wayne Norman defines the concept “multinational federation” through its contrast with “territorial” federations such as, precisely, the U.S.: The root divergence between these two types of federal systems is in their respective raisons d’être. Multinational federations are intended “to accommodate the desire of national minorities for self-government,” principally by creating a province (or provinces) in which one or more minority groups can constitute a clear majority of the citizens and in which they can exercise a number of sovereign powers. By contrast, a territorial federation is conceived of as a “means by which a single national community can divide and diffuse power,” perhaps accommodating a certain amount of socio-economic diversity at the same time.25 So, to sum up, it can be said that a multinational federation is a federal state that recognizes, and seeks to accommodate, more than one internal nation. The problem with this definition, of course, is that first of all, we should define what a “nation” is (and therefore a “national minority” or a “national community”). Among other features, Norman places a central (while not exclusive) value on the self-conception of a majority of a group as a nation. This is not to say that Norman denies in some ways the “reality” of nations, or the role that traits such as a common language can play in the formation of national consciousness.26 But what qualifies a group as a nation is, in the end, that “most of their members believe and feel them to be nations, i.e. (...) there is a critical mass within the community of individuals with a particular national identity and a desire among their members to be self-governing.”27 The aim of a multinational federation according to Norman was, as we have seen, to accommodate different nation-building projects. Or, in his formulation: “the desire of national minorities for self-government, principally by creating a province (or provinces) in which one or more minority groups can constitute a clear majority of the citizens and in

25. Norman, Negotiating, 87. 26. Ibidem, 4. 27. Ibidem, 4. The Ultimate Check: Republicanism, Multinational Federations and Right to Secession 63

which they can exercise a number of sovereign powers.”28 The specific institutional design that such a multinational federation must adopt in order to implement that fundamental principle is quite another thing. In my view, the two key vectors of this design are recognition (i.e. acknowledgement, on behalf of the federal government, of the existence of different nations within the federation)29 and political attributions (whether in terms of federated self-government or federal shared government). A multinational federation deserving this name should clearly recognize it is composed of different nations, and provide them with enough political attributions so as to assure them a level of satisfactory and efficiently protected self-government. A multinational federation should not necessarily be asymmetric, but it is very likely that it would be so. It all depends on what the federated units are and how they are related to the multinational character of the federation. If all federated units are self-conceived as nations, and recognized as such by the rest of the federation, then pressures for asymmetric arrangements would probably be less common. However, if some federated units are self-conceived and recognized as nations and the others are not, then the national units will probably press for asymmetry, in order not to be “reduced” to sub-national categories.30 It is important to realize that, in Norman’s formulation, what makes a federation “multinational” is not the fact of containing two or more nations (whether or not in Norman’s subjectivist, broad definition), but rather that it tries to accommodate them. Or, to be more precise: that it tries to be a common arena for different (and contending) nation-building projects. A multinational federation can thus serve as an institutional response to this rivalry and conflict [between contending nation-building projects]. By dividing sovereignty, a federal system makes it possible for

28. Ibidem, 88. 29. “Recognition” should not only mean formal recognition (i.e. the federal government gives verbal acknowledgement of the existence of different nations within the federation), but also factual recognition: the constituent nations of the federation should be able to implement their nation-building projects in fields traditionally monopolized by state nationalisms such as linguistic policy, flags on display at official buildings, or national sport teams. 30. For instance: a multinational Canadian federation will necessarily be asymmetric, since a majority of the province of Quebec considers Quebec to be both a province and a nation; while Ontario or Newfoundland are self-conceived and recognized as being only provinces (and members of a broader, English-Canadian nation, in the eyes of most Quebec nationalists). 64 The Catalan Process both majority and minority communities to have exclusive powers over specific policy areas, such as the educational system and the military, which are useful mechanisms in nation-building strategies. In other words, federalism facilitates the distribution and sharing of nation-building tools between national minorities and majorities.

3.3.2. Multinational Federations and the Threat of Permanent Majorities

Thus, it could seem that a multinational federation translates the republican concern with balancing the power of contending factions into an institutional design committed to balancing the power of contending nationalisms, which are often the driving forces behind secession conflicts. Scholars like Caminal31 or Young 32 went this way. Unlike territorial federations, multinational ones would, in theory, be open to granting minorities self-considered as nations the recognition and self-government required to face the threat of arbitrary permanent majorities, without allowing them any attribution (such as a unilateral, primary right of secession) that could enable them to blackmail the rest of the federation. Nor would multinational federations fall prey to the threats of exclusion or instability.33 However, from my point of view, it is doubtful that a multinational federal design that does not recognize any right of secession could be seen

31. Caminal, “Lectura republicana.” 32. Young, “Self-determination.” While Young does not employ the term “multinational federation,” actually her exploration of federalism coincides very much with this ideal (e.g. she proposes a bi-national federation as a solution for the Palestinian - Israeli conflict which could ensure non-domination in the relationships between these two peoples). 33. Perhaps it is necessary to foresee a criticism: a multinational federation will actually trigger instability, compared to more mono-national or unitary polities. A federation, and specially a multinational one, is always a contested polity, in which federated units and the federal government will usually challenge each other’s powers. In a way, it could be said that this means that a federation is inherently “unstable.” However, this is no more “unstable” than allowing the people to vote their representatives and change their governments each four years. And it is well known that a regime allowing this small and constrained “instability” can be solidly stable, and even more stable than other, more autocratic ones. Actually, republicanism is not about eliminating conflicts, but about channelling them through institutional settings that ensure non-domination. In this sense, it is useful to remember what Machiavelli said about the conflicts between the nobles and the common people in Rome: regardless of the noise those conflicts may have happened to produce, they were actually the driving force behind each of the institutional reforms that ensured freedom in Rome for centuries (e.g. the creation of the office of the Tribunes of the Plebs) (Discourses on Livy, 16-17). The Ultimate Check: Republicanism, Multinational Federations and Right to Secession 65 as an ultimate guarantee for the recognition and self-government of a permanent minority. There are two reasons for my skepticism. In the first place, even if we assume that a multinational federation is a scenario in which both the permanent majority and the permanent minorities would be accommodated, this assumption does not tell us what to do when the permanent majority is reluctant to turn the host state into a multinational federation. One possible answer in these cases is, of course, to entitle the permanent minority to a remedial right of secession. Things get tricky (and that’s my second reason to be skeptical) when we realize that a multinational federation is, to a great extent, a matter of interpretation, and a highly context-dependent one: arrangements that can be reasonable in some cases may be unreasonable in some others.34 Thus, it seems we need some criteria to know whether we are looking at a truly multinational federation, especially if we are going to guarantee a right of secession to those permanent minorities living in a state that is clearly reluctant to become a multinational federation according to our standards. If permanent minorities’ feeling of comfort is our touchstone, then the permanent majority could reasonably fear that the minority could make an arbitrary use of this criterion disregarding the legitimate views of the permanent majority. If we allow permanent majorities to determine whether their state recognizes its internal national diversity “enough,” then the same fear can reasonably arise among permanent minorities. And this has plenty to do with republican concerns with minimizing the threat of domination through arbitrary power. Thus, it seems that our only hope is to clarify the how of the multinational federation, rather than the what. This means that the backbone of a republican theory of multinational federal arrangements must be the determination of the structure of checks and balances through which different, self-conceived national communities can deliberate, negotiate, and/or interpret such arrangements. Here I cannot provide a complete theory of such checks

34. For instance: in the Republic of Bosnia-Herzegovina, the head of state is a collective presidency held by three presidents, each of them belonging to one of the three constituent peoples of the republic (Croats, Bosnians and Serbs), while it is required that no more than two-thirds of the Council of Ministers were from the Federation of Bosnia and Herzegovina (a predominantly Bosnian and Croat political entity, which together with the predominantly Serb Republika Srpska constitute the Republic of Bosnia and Herzegovina). It all sounds reasonable, at least in the mid-term, due to the recent history of inter-ethnic conflicts. On the contrary, it would probably be unreasonable (unnecessarily sectarian, taking history into account) to ask for a constitutional provision ensuring that Canada will have no more than two-thirds of the Council of Ministers from the predominantly anglophone provinces. 66 The Catalan Process and balances. Instead, I will argue that a subset of this theory must be a federal theory of the right of secession, which must inevitably be based on a non-unilateralist view of this right.35

3.4. A Non-Unilateral Right of Secession as a Federal Check

If we do not want to rely on the right of secession to protect the self- government of permanent minorities, we can think of alternative checks to the threat of permanent majorities. Here, we can think of two types of checks: (1) checks to be exercised by permanent minorities at a federal level, that is, in the shared-rule dimension of the federation; and (2) checks to be exercised as group rights by the permanent minorities in the federated level, that is, in the self-rule dimension. In the first group of checks, we can think about minority quotas in some federal institutions, particularly in those with a role in the processes of interpreting and/or amending the federal constitution (e.g. the Constitutional or the Supreme Court). In the second group of checks, we can identify nullification rights (i.e. rights to opt out of federal laws and decisions) and veto rights (i.e. the right to stop federal legislation and/or executive action).36 A robust constitutionalization of this kind of checks would consider- ably weaken the arbitrary power of permanent majorities. However, in my view, these checks would anyway leave this arbitrary power, in the end, largely operative, since resorting to constitutional reform and interpretation will remain untouched in the hands of the permanent majority. Even strong asymmetric formulas and veto rights can, eventually, be constitutionally outmanoeuvred or undermined by a resolute arbitrary permanent majority, precisely because it is permanent, and therefore its

35. Interestingly, this is as well the point of view of Norman (Negotiating), for whom a theory of multinational federalism must include a federal theory of (non-unilateral) right of secession. My own views present, however, some differences with his; to say but the most important two: (1) he doesn’t link his theory with republican values and theoretical tools; and (2) he seems to equate “non-unilateral” to “constitutional” secession, which I find a mistake, for reasons that I explore in section 4. 36. Buchanan, Secession, 36. Both kinds of rights can be designed to be exercised generally or, on the contrary, only in specific matters (e.g. linguistic policy). The Ultimate Check: Republicanism, Multinational Federations and Right to Secession 67 need to form coalitions, make concessions and act in good faith is not crucial to its ability to implement its agenda in the long run.37 In the end, the ultimate check a permanent minority can use in the face of the arbitrary power of a permanent majority is (the threat of) secession. However, entitling a permanent minority to a primary right to unilateral secession (whether ascriptive or plebiscitarian) would lead to the threat of blackmailing minorities. In my view, the only way to escape from this cul-de-sac is through a non-unilateral right of secession, i.e. a right to secede that cannot be exercised at the secessionist community’s exclusive wish. The secessionist community is therefore obliged to negotiate with the host state’s unionist government. On the other hand, such an obligation also applies to unionist governments as they cannot simply ignore the secessionist community’s wishes through reasons such as “secessionists are a minority of the only sovereign demos: that of the state as a whole.” This was, precisely, the line of reasoning of the Supreme Court of Canada concerning the Quebec government’s claim for the province to have a right to secede: Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties in the federation. (...) Nor, however, can the reverse proposition be accepted: the continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis for denying the right of the government of Quebec to pursue secession should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should secession in fact proceed. There would be no conclusions predetermined by law on any issue. Negotiations would need to address the interests of the other provinces, the federal govern-

37. Of course, here the permanent majority can still be reasonable and act in good faith, but domination is not about how reasonably exercised power is, but how arbitrary it is. If I have power over you and I exercise it taking care of your views and interests not because I have no other choice, but because of my goodwill, then I’m still dominating you: I could cease to take care of your views and interests in the exercise of power as soon as I please. And, more importantly, this will poison our relationship: however well I might govern you, you will always take care not to make me angry. Having a benevolent master is, in the end, not the same thing as not having a master. 68 The Catalan Process ment and Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities.38 According to Requejo, this practically meant recognizing “the legitimacy of the right to self-determination for the peoples of a multinational federation,” while regulating it “from a federal rather than from a nationalist perspective.”39 Norman, as well, thinks that the Reference “does much to highlight the close relationship between legal principles appropriate for secession and those already in place within multinational federal constitutions.”40 If I’m right, this sort of non-unilateral, federal right of secession would not weaken, but rather strengthen, the perspectives of accommodation of majority and minority nationalisms within multinational federal or, at least, highly decentralized states, since it would force nationalists of both permanent majorities and permanent minorities to negotiate their agendas. Of course, the outcome of such negotiations could be secession anyway, 41 but it is more likely that the permanent majority would have incentives to make important concessions that could lead to an accommodation of the permanent minority goals without resorting to secession; as it will be likely that the permanent minority would not be encouraged to use this right to secede as an unreasonable blackmailer: it does not make much sense to threaten the host state with secession in order to reach unreasonable demands if the only way to (at least, legally) reach secession is through a reasonable negotiation with the host state. I therefore expect this balance of power to lead, more often than not, to multinational federal arrangements. This, in fact, is one of the core expectations of the republican tradition concerning factional conflicts: whenever these conflicts are channelled through institutional devices that force all sides to take the rival factions’ interests and views into account, then peace and stability would follow. This could sound like pure theoretical speculation; however, there is some evidence showing that only a limited range of groups with some sort of “ethnic” or “national” identity show a relevant share of their members as

38. Supreme Court of Canada, Reference re Secession of Quebec, 151. 39. Requejo, Multinational Federalism, 60. 40. Norman, Negotiating, 200. 41. In theory, the maintenance of the status quo could also be the maintenance of the status quo, but I almost discard that an already secessionist community would be accommodated in a status quo it is rejecting in the first place through such a crucial political move like secessionism. The Ultimate Check: Republicanism, Multinational Federations and Right to Secession 69

supporting secession,42 and that the existence of a legal path towards secession tends to promote a peaceful and stable course of secession conflicts43 and the promotion and protection of self-government agreements.44 It has usually been assumed that any constitutionally recognized right of secession is, per se, a non-unilateral right of secession and vice versa usually. However (and here I disagree with Norman), I think we can and must discuss this assumption. We can do it because a constitution may recognize a unilateral right to secede, and a non-unilateral right of secession could be embedded in other legal frameworks; particularly, in international law. And we must do it because limiting a non-unilateral right of secession to the framework of national constitutionalism undermines, in my view, the potential of such a right as a mechanism to minimize domination in secession conflicts. The reason is that a non-unilateral right of secession would inevitably need an arbiter. Let’s see this point, once again, through the case of Quebec. The 1998 Reference intentionally left a series of important points of Quebec’s (quasi) constitutional right to secede blank: what is a clear question? What is a clear majority? In case of a clear “yes” victory in a referendum on Quebec’s secession, should the following negotiations only address secession, or not? And, in any case, who would be entitled to decide whether the parts are negotiating in good faith or not? All these questions (and many others) probably cannot be answered a priori, but rather case by case. And this leads to the need for an arbiter. In case the non-unilateral right of secession remained limited to the framework of national constitutionalism, then, who would be the arbiter? National constitutions shape and base the political institutions on and within the limits of the state: no more and no less. All of them, unfortu- nately, are stakeholders in secession conflicts. They can try to be impartial, but in the end they are part of the conflict. Thus, to avoid the risks of succumbing to the already mentioned four threats, arbitration can only

42. Sorens, Secessionism, 52-56. Examining over 283 ethno-national groups, Sorens found that, in 2003, only 38% of those groups had secessionist organizations, without those organizations necessarily having the support of a majority of their ethno-national target group. It is even more undermining for the secession ad infinitum fear when we recall the broad concept of “secessionism” used by Sorens: “I define ‘secessionism’ broadly to include movements that aim at substantial territorial autonomy for a minority group and do not rule out independence in the future” (p. 5). 43. Ibidem, 112-138. 44. Ibidem, 139-152. 70 The Catalan Process be external, i.e. it can only come from the international community. In my view, thus, a proper republican theory of the right of secession should entrench this right, somehow, in the international system. Here I cannot develop such an ambitious theory, but I think its cornerstone has been well described in the previous pages. And while such a theory is being developed, we can use this same cornerstone to build small, practical solutions to each specific case. I will devote the next section to briefly explore how to apply this embryonic theory to the Catalan case.

3.5. The Right of Secession in Catalonia: The Only Path (if Any) to the Third Way

The causes of the current secession conflict between Catalonia and Spain cannot be reduced to a single factor, but the conflict is unexplainable without the failure of the amendment of the Catalan home rule that Cata- lanists45 attempted between 2004 and 2010. Prior to this period, secessionism was a minority position in Catalonia at both social and parliamentary levels. In 2010, however, the Constitutional Court of Spain curtailed several important parts of the new Catalan home rule regulation (Estatut in the Catalan language). This Estatut had been passed, first of all, by the Catalan Parliament in 2004, secondly by the Spanish Parliament in 2006 (although the version that was passed had been significantly curtailed version during the Spanish parliamentary process) and finally approved in June, 2006 in a referendum held in Catalonia. A great number of Catalanists who had supported the decentralized Spanish model or even a federal system became disenchanted with the idea of accommodating Catalonia within a multinational, federal Spain, and turned their support towards secession. Figure 1 shows that the sustained growth of social support for secession starting in 2005 experienced a dramatic acceleration in 2010.

45. “Catalanism” is an umbrella term of Catalan political vocabulary, grouping together different movements, parties and intellectual currents vindicating Catalan self-government, Catalan language and Catalan culture. It therefore includes people who define themselves as “Catalan nationalists,” but also people (including many secessionists) who reject being labelled as “nationalists.” The Ultimate Check: Republicanism, Multinational Federations and Right to Secession 71

FIGURE 1. Evolution of Territorial Preferences in Catalonia (2005 - 2013)46

Of course, coincidence in time does not necessarily imply causation; and in 2010 Catalonia (like the rest of Europe) was experiencing a serious economic crisis which probably had important political effects in different directions, including social support for secession. However, the crisis started in 2008, while massive demonstration against the ruling of the Constitutional Court on the Statute took place in Barcelona in 2010, which strongly indicates that the decision of the Constitutional Court had an impact on the hearts and minds of many Catalanists. The same could be said in relation to a previous massive demonstration that took place in 2006 against the first curtailment of the new Statute. Interestingly enough, it was in the 2006 demonstration that a new concept made its first appearance in the Catalan political sphere: the right to decide. This

46. Guinjoan, Rodon, and Sanjaume, Catalunya, un pas endavant, 64. Data from the Catalan Centre d’Estudis d’Opinió (CEO). 72 The Catalan Process

was a concept that reappeared in the 2010 demonstration.47 It is a relatively ambiguous concept which, in the end, has come to signify something similar, in practical terms, to the right of self-determination: the right of a group (“a people,” however defined) to choose its own political future.48 In this context, different voices in the Catalan political landscape urged for the need for a “third way” between the status quo and secession.49 For- mulated in another manner, the “third way” always consists of an enlargement of the recognition and the political attributions of Catalonia (again, whether in the camp of shared- or self-rule). Very frequently, this “third way” is presented as not only limited to these enlargements, but as included within a broader project of making a multinational federation out of Spain. In this sense, the “third way” is the practical application, to the Catalan case, of the theoretical proposal we have already seen: multinational federal arrangements as an alternative to secession. We have already explored, theoretically, the shortcomings of this alternative from a republican point of view: it inevitably falls, more or less sharply, prey to the threat of arbitrary permanent majorities. In fact, as we have just seen, it is precisely the materialization of this threat (through the curtailment of the 2006 Catalan Statute) that has led to the rise of secessionism.50 Thus, if my theoretical exploration is right, a “third way” proposal would be incomplete without the recognition of a non-unilateral right to secede for Catalonia. No doubt many “third way” proposals include

47. The motto of 2006 demonstration was “We are a nation, we have the right to decide,” while that of the 2010 demonstration was “We’re a nation, so we decide.” 48. There is a debate on whether the right to decide is a euphemism for self-determination, a new kind of it, or a different and new right. For this last position, see López, From the Right to Self-determination to the Right to Decide. 49. This is, for instance, the official stance of the Socialists’ Party of Catalonia (the Catalan branch of the Spanish PSOE) or the green party Iniciativa per Catalunya Verds. We should notice that the first one doesn’t support Catalonia’s right to secede, while the second one does; i.e. support for the “third way” neither implies nor excludes support for the right to secede. 50. It is important to notice that the curtailment by the Spanish Constitutional Court had nothing to do with, let’s say, protecting essential human or citizenship rights in front of an illiberal Statute. What the Court curtailed, to the outrage of many non-secessionist Cata- lanists, were things like the definition of the Catalan language as the “preferred” language (though not exclusive) of the Catalan public administration (article 6.1. of the Statute, deemed unconstitutional by the Court). We are not talking about African-American slavery in the Southern U.S., so to speak. That is: the Spanish Constitutional Court didn’t try to prevent a minority from tyrannizing another minority (or, in general, from tyrannizing anyone), which would have had good republican credentials as part of the normal checks and balances of a democracy. The Ultimate Check: Republicanism, Multinational Federations and Right to Secession 73 this point, but the problem is that, to this day, a mass majority of the Spanish Parliament seems to be completely opposed to this idea.51 And here is when the international part of my reasoning becomes important. Thus, according to my theoretical arguments, if the Spanish Parliament, as well as the Spanish government, keeps refusing both a federal and multinational constitutional reform and a referendum on independence, the international community (and, particularly, European countries) would find themselves faced with the moral obligation to intervene, especially taking into account that, since after the Catalan elections in 2012, the Catalan government has repeatedly asserted their willingness to settle the matter through an agreed-upon referendum, like Scotland. Of course, even if we consider that such a moral obligation exists, this does not mean that the international community will be willing to fulfil it. In this case, confronted with an arbitrary permanent majority, and left at her mercy by an oblivious international community, what should the Catalan secessionist community do? This is another problem that a republican, federal theory of secession must confront: even if it stands for a non-unilateral right of secession under international arbitration, what happens when one of the two conflicting factions (either the unionists or the secessionists) is unwilling to accept this mechanism, and the international community is unwilling to intervene to guarantee its implementation? In my view, this probably authorizes (normatively speaking) a unilateral move by the side of the conflict that had been willing to accept the settlement of the matter through this non-unilateral right to secede. So it seems that, in republican terms, unilateralism on one side of the secession conflict could normatively authorize unilateralism on the other side. When applied to the Catalan case, all this means that if the Span- ish government (and Congress) insists on forbidding the possibility of a “Scottish solution” to the Catalan secessionist conflict, at some point such an approach to the problem could morally authorize, from this republican point of view, a unilateral declaration of independence by the Catalan Parliament, together with the executive actions that the Catalan government may take to enforce it (provided that they respect basic human rights). Moreover, this could probably be the only way to conduce both

51. This includes the two Spanish majority parties (the conservative People’s Party and the progressive Socialist Party), as well as the fourth party of the Parliament (liberal-conservative Citizens - Party of Citizenship). Together they number 248 MP’s out of 350. 74 The Catalan Process the Spanish government to dialogue, and/or the international community to intervene.

3.6. Conclusion

This chapter has sought to explore the proposal according to which multinational federations can be a proper institutional design when it comes to ensuring non-domination in secession conflicts. Through this exploration, I have shown how republicanism indeed has good reasons to favour multinational federal arrangements in order to control the threats to republican freedom posed by secession conflicts (and by nationalist conflicts generally speaking, of which secession conflicts are only an ultimate manifestation); but I have also pointed out that this perspective, and the multinational federal arrangements it favours, will be incomplete unless they are coupled with a commitment to a non-unilateral right of secession, pretty much in the line of the Reference re Secession of Quebec issued in 1998 by the Supreme Court of Canada (while adding international arbitration to it). I have also applied this exploration to analyzing the case of the Catalan secession conflict, in which multinational federal arrangements are usually sold as a “third way” between the status quo and secessionism. Based upon this theoretical exploration, I have defended that, in fact, a “third way” settlement for the Catalan secession conflict will only have chances to succeed if a non-unilateral right to secession under international arbitration is guaranteed to Catalonia. Finally, I have also argued that if this non-unilateral right is persistently denied by the Spanish government and Parliament, and if the international community refuses to intervene, all this could justify a Catalan unilateral declaration of independence.

References

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Deudney, Daniel H. Bounding Power: Republican Security Theory from the Polis to the Global Village. Princeton: Princeton University Press, 2008. Guinjoan, Marc, Toni Rodon, and Marc Sanjaume. Catalunya, un pas endavant. Barcelona: Angle Editorial & Fundació Josep Irla, 2013. Habermas, Jürgen. “Human Rights and Popular Sovereignty: The Liberal and Republican Versions.” Ratio Juris 7, no. 1 (1994): 1-13. Hansen, Mogens Herman. The Athenian Democracy in the Age of Demos- thenes. Structure, Principles, and Ideology. Oxford: Basil Blackwell, 1991. Lincoln, Abraham. Lincoln’s Speeches. (Edited by Allen C. Guelzo, and Rich- ard Beeman). London: Penguin Books, 2012. López, Jaume. From the Right to Self-determination to the Right to Decide. A Possible Paradigm Shift in the Struggle for the Rights of Stateless Nations. Barcelona: UNESCOCAT, 2011. Machiavelli, Niccolo. Discourses on Livy. Chicago: University of Chicago Press, 1998. Norman, Wayne. Negotiating Nationalism. Nation-building, Federalism, and Secession in the Multinational State. Oxford: Oxford University Press, 2006. Pavkovic, Aleksandar, and Peter Radan. Creating New States. Theory and Practice of Secession. Burlington: Ashgate, 2007. Pérez-Lozano, Lluís. “The Republic and its boundaries. Democratic republicanism and theories of right of secession.” Political Theory Working Paper. Barcelona: Universitat Pompeu Fabra, 2014. Pettit, Philip. Republicanism. A Theory of Freedom and Government. New York: Oxford University Press, 1997. . On the People’s Terms: A Republican Theory and Model of Democracy. New York: Cambridge University Press, 2013. Pocock, John. The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition. Princeton: Princeton University Press, 2003. Requejo, Ferran. Multinational Federalism and Value Pluralism. New York: Routledge, 2005. Rokkan, Stein, and Derek W. Urwin. Economy, Territory, Identity. Politics of West European Peripheries. London: SAGE Publications, 1983. Sandel, Michael. Democracy’s Discontent: America in Search of a Public Phi- losophy. Cambridge: Belknap Press of Harvard University Press, 1996. Skinner, Quentin. Liberty before Liberalism. Cambridge: Cambridge Uni- versity Press, 1998. . “A Third Concept of Liberty.” Proceedings of the British Academy, 117 (2002): 237-268. 76 The Catalan Process

Sorens, Jason. Secessionism: Identity, Interest, and Strategy. Montreal & King- ston: McGill-Queen’s University Press, 2012. Supreme Court of Canada. Reference re Secession of Quebec. August 20 1998. Wood, Gordon S. The Radicalism of the American Revolution. New York: Vintage Books, 1993. Young, Iris M. “Self-determination as non-domination.” Ethnicities 5, no. 2. London, Thousand Oaks, CA, and New Delhi (2005): 139-159. 4 Liberal Democracies, Federalism and National Pluralism: Walking from Kant to Hegel

Ferran Requejo

4.1. Introduction

In this chapter we are concerned with one of the issues that 21st-century liberal democracies have to face regarding their internal legitimacy in plural societies: the possibilities and limitations of federal models or secessionism to politically accommodate one specific kind of pluralism: national pluralism. Traditionally there have been three institutional arrangements aimed at giving an answer to the existence of national pluralism in a state: federalism, consociationalism and secession. First we briefly consider how federal constitutional orders have dealt with the reality of multinationalism and the problem of accommodating national minorities. Thus, we refer to the five axes along which power can be distributed and conceptualized in a federation. We conclude that there are five aspects to take into account when assessing a federation from the standpoint of accommodation. One of these aspects concerns the right of secession by a national minority. Therefore, in the third section we refer to the state of the art of the issue on the right to secede from a moral point of view. We close our argument by pointing out in what sense the kind of normative reflection most fruitful for our purpose — the accommodation of national minorities and national pluralism in current liberal democracies — will not be inspired by Kant’s but rather by Hegel’s writings. 78 The Catalan Process

4.2. Plurinational Federalism: A Comparative Approach

Aristotle realized that human beings are insatiable in their search for knowledge. Skeptics through the centuries, from Pyrrho and Sextus Em- piricus to a number of postmodern authors have concluded that the desire for knowledge that drives humans is impossible to satisfy. Montaigne and Shakespeare show how skepticism is present in our daily lives. Practical distrust is related to theoretical skepticism. Whether it is honest or dis- honest, wanted or not, distrust is part of our nature. Half a century later Hobbes approached the issue of trust from a more political perspective. Like Montaigne and Shakespeare, his ideas still influence us today. The main theme of his work is not that of the supposed selfish and rational nature of human beings, as some slightly misinformed neoclassical economists still repeat nowadays, but the impossibility of establishing cooperative relations between individuals in the absence of mutual trust. But this trust cannot exist, says Hobbes, without a superior political power that ensures that individuals respect laws and contracts. In order to work cooperatively it is essential to trust that the other parties will fulfil their part of the agreement. And in the absence of a coercive political power, it is irrational to believe that the other parties will respect any accord. Without political coercion, trust is destroyed. In his later years, Kant showed that he understood Hobbes well when he formulated his magnificent concept of the unsocial sociability which characterizes human beings and which is at the root of all changes and progress that our species has undergone. Kant, unlike Rousseau, would have applauded Darwin. But it was political liberalism, and subsequently Hegel, which hammered the point home: political legitimacy that gives stability, trust, and prospects for the future must be based on institutions that are able to protect rights and limit power; the politician’s main task is to create institutions that can resolve political and social conflicts efficiently. Patriotism, for Hegel, is not a feeling but a bond that can only be rational if institutions are able to manage conflicts. If not, a state’s constitution becomes a mere “piece of paper” (ein Stück Papier). The question of political recognition and constitutional accommodation of national pluralism is one of the main challenges of the evolution of current liberal democracies. I think that Hegel’s philosophical approach, as we will see in the next sections, offers a relevant framework to think better about this subject. Liberal Democracies, Federalism and National Pluralism: Walking from Kant to Hegel 79

A few years ago, the United Nations clearly established that a politics of recognition is an integral part of the struggle for human dignity (Hu- man Development Report, 2004). Moreover, it established that national and cultural freedoms, which include both individual and collective dimensions, are an essential part of the democratic quality of a plurinational society. Furthermore, it stated once again that when analyzing legitimacy in plurinational contexts one often observes a juxtaposition between the perspectives of the paradigm of equality (equality vs. inequality) and the paradigm of difference (equality vs. difference). This juxtaposition inter- acts with the individual and collective rights of liberal democracies. As a result, values such as dignity, freedom, equality and pluralism become more complex in plurinational contexts than in those of a mononational nature. The overall challenge of plurinational democracies can be summed up in the phrase “one polity, several demoi.”1 On the other hand, if we turn our attention to liberal democracies, it is clear that all of them conduct processes of nation-building that promote the predominant national identity among their citizens, even when this kind of state nationalism is implicit or “invisible.” Over the last two decades, analyses of democratic liberalism have shown the normative and institutional biases of traditional approaches (liberalism 1), the individualist, universalist and statist nature of which favor the majority nations of plurinational democracies. An alternative liberal-democratic approach (liberalism 2) has stressed the value that the national and cultural spheres have for individuals, in terms of their self-image and self-respect, as well as and in terms of the understanding of the societies in which they have become socialized or in which they live. Therefore, this second perspective uses political and moral reasons to demand that state institutions and practices adopt measures in favor of the political and constitutional recognition and accommodation of a state’s national pluralism.2

1. Normative definitions of minority nations (nations without their own state) tend to be controversial. One way to determine whether a specific case may or may not be regarded as a minority nation is by incorporating empirical criteria into the more classic normative definitions found in studies on nationalism (Requejo, “Federalism and Democracy”). As in previous works, I prefer the term “plurinational” to the more common “multinational” for descriptive and prescriptive reasons. See Requejo, and Caminal, Political Liberalism, 12-13. 2. For normative arguments in favor of liberalism 2, see Seymour, De la Tolérance; Norman, Negotiating; Burgess, Comparative Federalism ch 4; Requejo, Multinational Federalism, and Parekh, Rethinking Multiculturalism; Taylor, “Politics of Recognition.” Regarding “invisible” state nationalism, see Billig, Banal Nationalism. 80 The Catalan Process

The classic institutional measures offered by comparative politics to achieve the practical accommodation of national pluralism are basically of three types: federalism (in a broad sense, including processes of “devolution,” confederations, associated states, etc.), consociationalism, and secession. While the first two types of measures have been studied for a number of decades through both theoretical and normative models as well as through the analysis of different empirical cases and comparative analyses, secession has received renewed analytical attention in recent years, especially in plurinational contexts. One consequence of this has been the analytical refinement of the literature on normative theories of secession. However, before approaching these theories, let us establish what the main findings of federal comparative analyses based on fresh data have been, especially regarding nationally plural societies (I will present these findings implementing the same methodology that I did in previous comparative analyses,3 but using updated information (2012). Broadly speaking, current analyses of states that display a clear territorial division of federal or regional powers can be situated along five basic axes, depending on the research questions that one is attempting to answer:

a) the mononational-plurinational axis b) the unitarism-federalism axis c) the centralisation-decentralisation axis d) the symmetry-asymmetry axis e) the competitiveness-cooperation axis

These analytical axes require a diverse battery of variables and indicators in order to carry out a comparative approach. The universe of our analysis comprises democratic federations — excluding cases based on archipelagic federations such as Micronesia, the Comoros and St Kitts and Nevis, as well as federations which are a long way from the liberal- democratic logic (the United Arab Emirates, Nigeria, Pakistan, etc.). As- sociated states/federations and supra-state entities such as the European Union have been also excluded. On the other hand, we include three Eu- ropean Western democratic regional states which display a clear territorial division of powers: the United Kingdom, Spain, and Italy. Altogether, the analysis covers 20 federations or regional states.

3. See Requejo, “National Pluralism” and “Federalism and Democracy.” Liberal Democracies, Federalism and National Pluralism: Walking from Kant to Hegel 81

1) The mononational-plurinational axis is applied according to the theoretical and the double empirical criteria — party systems/effective number of parties, and secessionist parties within them — I have developed elsewhere.4 2) The unitarism-federalism axis focuses on how federal a federation (or a regional state) is. It is established using constitutional regulations which are more or less favourable to a federal institutional logic from the perspective of the federated units.5 3) The centralisation-decentralisation axis refers to the degree of constitutional self-government of those units that have political autonomy.6 4) The symmetry-asymmetry axis refers to the de jure regulations and powers that may exist for specific territorial units.7

4. See Requejo, “Federalism and Democracy,” sec. 2. 5. We will include as indicators the existence, or not, of: federated polities as constituent units (1); constitutional guarantee of their self-government (1); agreement on constitutional reform (1); an institutional dualism in relation to the three classic powers: the executive and the legislative branch /the legislature(2) and the judiciary(1); a model of fiscal federalism (2); an upper chamber with representatives appointed by the institutions of the federated entities (1), and with seats distributed along territorial lines (not proportional to the population) (1); powers of the upper chamber within the institutional system (2); the allocation of unallocated powers to the federated units (2); a court to arbitrate in disputes (2), with the sub-state entities having a say regarding who is appointed to it (2); and, finally, the regulation, or not, of a right of secession of (some) the federated units (2). The numbers in brackets refer to the score given to each indicator. Altogether, the global scale of each case is situated between 0 (absence of a federal logic) and 20 (maximum degree of constitutional federalism). See annex 1. In this axis, “para-institutional” indicators have not been considered/are not considered, that is, those which have an effect on federalism as a process (e.g. party-systems; inter-governmental relations). See Baldi, Stato e territoriofor an analysis that uses a number of slightly different indicators applied to 11 federal and regional countries. See also Burgess-Gagnon, Federal Democracies; Burgess, Comparative Federalism. 6. In here the degree of decentralization is also measured on a global scale which goes from a scale of 0 (maximum centralization) to 20 (maximum decentralization). It is also measured using different indicators: a) the kind of legislative powers enjoyed by these sub-units (8) -subdivided in specific areas of government as follows: economy/infrastructures/communication (2), education and culture (2), welfare (2), internal affairs/penal/civil codes and others (2); b) the executive/administrative powers (2); c) whether or not the federated entities have the right to conduct their own foreign policy, taking into account both the scope of the matters and agreements with federal support (2); and d) their economic decentralization (8), calculated according to a single average index obtained taking the distribution of the public revenues and the public expenditures (GFS/IMF indexes) into account in each country. See appendix 2. Data from http://www1.worldbank.org/publicsector/decentralization/ fiscalindicators.htm [accessed, October 2017]. See also Rodden 2004. 7. See Watts, “A Comparative Perspective”; Agranoff, Accommodating Diversity. Federal capitals have been excluded from asymmetry criteria. Quebec, Catalonia, Scotland and Flanders are the reference for the cases of Canada, Spain, the UK and Belgium. 82 The Catalan Process

5) We do not include the competitiveness-cooperation axis in this analysis.

FIGURE 1. Relates the degree of constitutional federalism and the degree of decentralization for the cases under analysis which exist in the cases studied. Plurinational cases are marked in red, while asymmetrical cases are underlined.8

The following points are general comparative conclusions of the aforementioned research regarding the feasibility of federations for accommodating plurinational societies. We will consider five different aspects here: the constitutional recognition of national pluralism; the degree of decentralization, the degree of constitutional federalism, the inclusion of de jure asymmetries in plurinational polities and, finally, the inclusion or not of a right of secession for national minorities in the constitutional rules.

8. The cases of Ethiopia and Malaysia are not included in the degree of decentralization due to the lack of reliable economic data. Liberal Democracies, Federalism and National Pluralism: Walking from Kant to Hegel 83

1) Constitutional recognition of national pluralism in plurinational federations. Ethiopia and Russia formally recognize their plurinational character. However, all other federations and regional states are reluctant to permit explicit recognition of national pluralism in their constitutional agreements. 2) Degree of federalism, decentralization and asymmetries. Broadly speaking, the group of plurinational federations of the analysis show, paradoxically, a degree of federalism which is more uniform and lower than that of the group of uninational federations (except for the special case of Bosnia-Herzegovina, which displays some confederal characteristics). That is, there is a federalist deficit in plurinational federations. However, these policies are, in constitutional terms, more asymmetrical than uninational federations. In fact, there are no cases of clearly symmetrical plurinational federations. Not surprisingly, the two regional plurinational cases — Spain and the United Kingdom — score the lowest value within the plurinational group of states regarding their degree of federalism. These trends raise questions about the suitability of federations/regional states for properly managing plurinational polities when the accommodation of politically minority nations is not only a question of decentralization, but also of political recognition of their national status, and of regulation of their constitutional collective negative and positive liberties. 3) In some plurinational federations, there are elements of asymmetry that are regulated within the territorial symmetrical nature of the division of powers with the presence of pressure in favour of the symmetry of the system. This generally occurs when the number of federated units is not small (at least nine) (Canada, India, Russia, Ethiopia and Spain in contrast to the cases of Belgium, the United Kingdom and Bosnia-Herzegovina).9 4) The construction of “federal trust” in plurinational federations/ regional states requires the existence of at least two factors: a) the existence of clear mechanisms allowing the minority nations to participate within the shared government of the federation from their singular and individual character instead of being diluted into an entity of the federation (presence in the upper chamber, bilateral inter-governmental rela-

9. See the analysis of the evolution of ten European multilevel cases that started their process of decentralization asymmetrically in Requejo, and Nagel, Federalism. It is currently an open question whether the federations’ reluctance to introduce more asymmetric regulations, especially when the number of units is not small, will or will not reinforce territorial tensions and secessionist positions. However, recent evolution of some empirical cases (Scotland since 2008, Catalonia since 2010) seems to show that this is the case. For the Catalan case, see Requejo, and Sanjaume, “Recognition.” 84 The Catalan Process tions between these entities and the federation, consociational institutions, etc.), and b) the existence of rules protecting national minorities from the actions of the majorities. This is an issue of a more “liberal” than “democratic” nature (related to the collective “tyranny of the majority”).10 If specific participation and protection mechanisms are absent (Spain), or if they are insufficiently regulated (Russia), the perception by the minorities of a federalism of distrust (and the majorities as a reaction) will increase. From a normative perspective, this misrepresents the interpretation of collective liberal negative freedom in plurinational federal democracies. Moreover, it would seem to be advisable to promote the development of a kind of political culture for the whole of the federation in order to develop a stable federal trust: a “plurinational culture” that makes the plurality of the internal demoi a feature of the “political union.” 5) Right of secession. In conceptual terms, there is nothing to prevent the issue of where borders should be established from joining the democratic debate. But on an empirical level it is clear that states are jealous of their own territories. The introduction of a right of secession for minority nations represents a clear break with the dominant logic of federations (and traditional political liberalism), although not with the tradition of federalism. This logic only accepts the right to self-determination for the federation. But it is an interpretation that a number of federations have recently questioned. This is the case of Canada (through the “federal pat- tern” of the 1998 Secession Reference by the Supreme Court) and Ethiopia (or the more specific cases of the former Serbia-Montenegro and of St Kitts and Nevis).11

10. It favors the inclusion of institutional procedures such as powers of veto, an “alarm bell” and opting-in/opting-out policies (which do not require constitutional reforms), the appointment of some of the judges of the Supreme or Constitutional Courts, distinct participation in the processes of constitutional reform, asymmetrical intergovernmental relations, etc. Most of these procedures, which point to models of plurinational federalism or partnership, are either absent or have a low profile in the constitutions of most plurinational democracies. See Watts, Comparing; Requejo, Multinational Federalism, chap 4-5. 11. In contrast to what the anti-symmetrical argument of the stepping-stone towards secession suggests, the states that went through secession processes during the 20th century were not asymmetrical federations but Unitarist states (the United Kingdom, Ethiopia, Indonesia) or pseudo-federations of a socialist nature (USSR, Yugoslavia, Czechoslovakia). See McGarry, “Federal Political”; Norman, Negotiating. Liberal Democracies, Federalism and National Pluralism: Walking from Kant to Hegel 85

TABLE 1. Right of Secession in Plurinational Polities

Table 2 Right of Secession

Plurinational Federations Bosnia-Herzegovina No

Belgium No

Canada Yes 1

Ethiopia Yes

India No

Russia No

(Serbia-Montenegro) Yes 2

Plurinational Regional States Spain3 No

United Kingdom Yes 4

1 Right of Secession according federal (non-unilateral) rules 2 Federation broken by unilateral referendum in Montenegro (2006) 3 State with some federal trends 4 Referendum according to negotiated rules (2014)

4.3. National Pluralism, Secession and Political Liberalism

Empirical evidence suggests that plurinational federalism (plurinational federations and plurinational regional states) display shortcomings when regulating the recognition and political accommodation of national pluralism in liberal democracies at the constitutional level. Now we will turn to secessionism in order to discuss whether it offers a better way to achieve these two aims. So far we are fundamentally at a theoretical level as there is an almost complete lack of empirical evidence of peaceful practical secessionist processes in liberal democracies (with the exception of Norway-Sweden, 1905).

4.3.1. Theories of Secession

A fundamental motive behind liberal-democratic theories of secession is the justification of these potential processes on the basis of three key aspects of political legitimacy: the political subject (who), the reasons that legitimize secession (why), and the procedures (how). In addition, estab- 86 The Catalan Process lished typology divides secession into two basic groups: one is the group of the Remedial Right Theories, which link secession with a “just cause,” in other words, they regard secession as a remedy for specific “injustices.” The other is the group of Primary Right Theories that regard secession as a right belonging to collectives that fulfil a number of conditions. These theories are subdivided into those of an adscriptive or nationalist nature, and those of an associative or plebiscitary nature.

A) Remedial Theories, or those relating to a “just cause,” give priority to a number of reasons or specific cases that justify political separation. Secession is not regarded as a primary right of specific collectives, but as a legitimate remedy for a series of circumstances, such as territorial annexation by force (the case of the Baltic states and the USSR), the violation of the basic rights of a group of citizens by the state, genocidal practices, permanent negative discrimination regarding redistribution or socio-economic development, non-compliance with previous agreements of self-government or collective rights by the state, etc.12 These theories have received the most analytical attention in recent years, despite the fact that, as we will see, they do not appear to be the most suitable ones for the study of political legitimacy in plurinational contexts. The first difficulty is how one should characterize a situation as an “unjust” one. This obviously depends on the theory of justice one uses. Moreover, there are differences of degree in empirical situations that make it difficult to decide when the line of what could be considered morally reprehensible has been crossed (regulation of collective rights, fiscal treatment, redistribution, policies concerning education, culture, the media, etc.). These theories assume that the burden of proof resides with the minorities. In other words, they are theories that are biased in favour of the state, regardless of how the state was historically created. In this sense, they are conservative theories that legitimize state power and the status quo. In general terms, they are basically theories associated with the individualistic, universalist, and statist postulates of liberalism 1 — state respect for individual rights and democratic principles, as well as the non- discrimination principle. They therefore turn a blind eye to democratic states’ lack of neutrality with regard to national and cultural issues (na-

12. See Beran, “A Liberal Theory,” Birch, “Another Liberal;” Buchanan,Secession ; Buchanan, Justice, Legitimacy and Self-Determination. Liberal Democracies, Federalism and National Pluralism: Walking from Kant to Hegel 87 tion-building policies), marginalizing minorities’ collective demands for national recognition and accommodation — which are usually formulated nowadays through liberalism 2.13 Nevertheless, a number of authors have recently tried to enlarge the conditions of “just cause” by including the state’s obligation to carry out policies of recognition and accommodation towards its minority nations.14

B) Primary Right Theories regard secession as a fundamental right associated with specific collectives. The central element of adscriptive or nationalist theories revolves around the idea that the nation is a legitimate political subject endowed with this right. Thus, the legitimacy of secession would be based on a previous political unit that possesses this right, which would basically be understood nowadays in inclusive and universal liberal-democratic terms.15 This is the sphere of liberal nationalists who, in liberalism 2 terms, are critical of the practical consequences of the implicit state nationalism defended by traditional liberals (liberalism 1) — despite their habitual legitimizing rhetoric based on moral individualism and state constitutional universalism. The collective rights of minority nations are seen as complementary to individual rights, not antagonistic to them. And in many empirical cases the best and possibly the only way to promote and safeguard collective values would be the creation of one’s own state. Adscriptive theories are often criticized for the difficulty in defining a priori which groups have a primary right to secede. Once it has been determined which groups would have this right, the theory may provoke contradictions with regard to strict democratic

13. Despite the comments Buchanan makes regarding this question in his first book (1991), he explicitly refuses to incorporate nations or any other adscriptive criterion into his later conception. See Hechter, Containing; Sorens, Secessionism. 14. Bauböck, “Why Stay Together?,” for example, focuses on a revised conception of federalism in plurinational contexts. The federal solution is given priority over the creation of “culturally homogeneous states,” which are linked, somewhat impulsively, to adscriptive and associative theories. Seymour (“Secession”) reformulates Buchanan’s theory in order to incorporate the issue of the accommodation of national diversity. This author’s “philosophical” approach has similarities to mine (Multinational Federalism, 2013), above all because both regard the Hegelian paradigm of recognition as normatively and institutionally complementary to the Kantian approach of individual dignity in plurinational liberal democracies. In my case, however, I do not limit secession to internal processes of self-determination. See also Patten, 2002. 15. See Tamir, Liberal Nationalism; Margalit, and Raz, “National self-determination.” The last two authors use the concept of encompassing groups instead of the nation as the subject of the right to secede. See also Walzer, Thick and Thin. 88 The Catalan Process normativeness, as the minority nation may become a state without the need for majority demand. Moreover, it is commonly argued that, from a practical point of view, giving the right of secession to nations would multiply the number of secessionist demands in the world by thousands, which is associated with a high level of instability, particularly where national groups overlap territorially. However, the advantage of nationalist adscriptive theories is that they regard elements of a “historical” and of a socio-political nature designed to personalize subjects to be legitimate in order to exercise the right to secede. Associative or plebiscitary theories give priority to democratic procedure in order to legitimate secession, whether this is through a referendum or based on the decisions of representative institutions.16 The key values here are individual moral autonomy and the right to choose voluntary political associations. They represent the pillars of the consensual legitimacy of a democratic political authority. If this consensual base regarding the state’s authority is not shared by the majority of individuals of a collective, secession is a legitimate act and constitutes a right that must be legally regulated. Thus, in this kind of theories secession is not regarded as a possible solution to the infringement of the rights or interests of a collective, nor is it linked to any kind of specific national or ethnic group. Rather it is a primary right of a political and territorialized nature based on the individual preferences of the members of a group of citizens. The authors who have formulated this kind of approach define a series of conditions that must be met when this right is established. For example, the state must be feasible in empirical terms –number of citizens involved, guaranteed rights for (trapped) minorities, that secession does not prevent the viability of the former state, that it does not generate political instability, etc. “Histori- cal” considerations are alien to the internal logic of this perspective. This may mean, for example, that secession is considered potentially legitimate for a group of relatively recently territorialized immigrants. Moreover, it is argued, on the one hand, that an a priori right to secession established in these terms might result in the fragmentation ad infinitum of political communities and, on the other, would not permit the correct

16. Beran (“A Liberal theory”) states that any group that has inhabited a given territory for a (small) number of generations has the right to create a state there if this is carried out democratically. See also Wellman, A Theory of Secession. Liberal Democracies, Federalism and National Pluralism: Walking from Kant to Hegel 89 development of democracy as it would be permanently threatened by fragmentation.17

Finally, in the international sphere there are relatively few empirical examples of the constitutionalization of secession. The constitutions of Ethiopia and Saint Kitts and Nevis are the two clearest cases of the explicit inclusion of the right to secession. The former adopts an adscriptive approach, as the “nationalities” and “peoples” that constitute the state have access to the secession clause. The latter permits the secession of the island of Nevis through a referendum that must gather the support of a majority of two-thirds.18 The most recent cases of the secessions of Mon- tenegro (2006) and Kosovo (2008) from Serbia occurred, in the first case, in accordance with international regulations based on a referendum with clear rules monitored by the European Union and, in the second case, as a result of a unilateral declaration of independence by the Kosovar parliament, which was recognized by a majority of international actors once negotiations had broken down. These two cases are examples of international mediation when a deadlock has been reached regarding internal constitutional rules. Another case of constitutional regulation, albeit less conclusive than the previous ones, is that of Canada which, following the referendum on the secession of the French-speaking province of Quebec (1995) in which the anti-secessionist option won by a narrow margin of votes, established, on the grounds of an Opinion of the Supreme Court, that political and constitutional negotiations must take place if a “clear majority” of Quebec citizens responded to a “clear question” regarding secession (Secession Reference, 1998).19 The lack of secession clauses in plurinational contexts constitutes a permanent factor of instability in these democracies. I think that they should be included in the constitutional rules for both moral and pragmatic reasons.

17. See Moore, Ethics of Nationalism, Buchanan, Justice, Legitimacy and Self-Determination, and Secession. 18. While in Ethiopia there have been no secession proposals since that of Eritrea, which was preceded by a long armed conflict and occurred before the current constitution came into force, the island of Nevis conducted a secessionist referendum (1998) in which 61.7% voted in favour of secession without reaching, however, the legal minimum of two thirds. 19. These two references to “clarity,” however, have not been without controversy. Thus, the regulations of the Canadian Clarity Act (2000), following the Supreme Court’s Opinion, were countered when Quebec’s National Assembly passed the Loi sur l’exercice des droits fondamentaux et des prérogatives du peuple québécois et de l’État du Québec(2000). The contents of the Canadian Clarity Act are paradoxically “unclear” regarding the patterns of clarity. 90 The Catalan Process

4.3.2. National Pluralism, Recognition and Political Accommodation: A Little Bit of Political Philosophy

Moral and political philosophers, especially those who are members of university departments of philosophy and philosophy of law, usually work within a Kantian paradigm when dealing with contemporary political issues, including those of a multicultural and plurinational nature. I think this is a mistake because of its incompleteness. Kantian approaches (such as Rawls’ conception of “justice” which is only a theory of socioeconomic justice) reveal a set of misconceptions and shortcomings when they deal with subjects that include patterns situated beyond an individual perspective. This is the case of plurinational democracies, which, by definition, involve tensions between different national groups. Recognition and political accommodation between groups are two perspectives inherent in this kind of democracies that make it necessary to go beyond the moral individualism usually associated with Kantian approaches. We may ask whether the classical criticisms of the Kantian perspective made by He- gel represent a fruitful theoretical way to approach national pluralism in current liberal democracies.20 As is well known, Hegel sets out a number of criticisms to Kantian philosophy, introducing a more social perspective into his philosophy. Hegel transferred antagonisms in society as a typically modern phenomenon. Civil society is the second part of Hegelian ethics (along with the family and the state). And it is in civil society where the particularities that create conflicts reside, as well as the more relevant socializing and disintegrat- ing trends. Hegel does not deny that the natural roots of conflict must be found in the passions and desires of individuals (Kant’s concept of the “unsociable sociability” of individuals).21 Through his philosophy, Hegel does not intend to say how things should be, but how things really are. This realistic and social view opens the door to two important elements for the analysis and the normativity of plurinational societies: the politics of recognition and moral collectivism. Both connect with the Hegelian concept of ethicality (Sittlichkeit) (in contrast to morality) However, this is done by providing a price to pay: to adopt a clear statist perspective.

20. This subsection is based on Requejo 2013. 21. Although the Kantian term ungesellige Geselligkeitis not used by Hegel, the concept remains in his philosophy. See Requejo, and Valls, “Somos conflictivos, pero…”. Liberal Democracies, Federalism and National Pluralism: Walking from Kant to Hegel 91

A) Ethicality and the Politics of Recognition. Hegel stresses that the an- tagonism of civil society is the source of conflict, but is also a factor affecting socialization.22 In line with his statist realism, he emphasizes his fight against moralism, showing a skeptical attitude about the Kantian ideals of the “cosmopolitan society” and “perpetual peace,” stipulating that the evolution of reality and its complexities generates interaction mechanisms that facilitate conflict resolution. Moral imperatives do not have enough force to end conflicts. For He- gel, even the horizon of Kantian cosmopolitanism and perpetual peace are nothing but a moral sermon as beautiful as it is ineffective. From this perspective, we can deduce that the main political task is to establish a set of political institutions that help to prevent and solve conflicts. The real constitution of a state lies in the interactive framework of its institutions. In this way, Hegel introduced a new analytical approach to the study of modern societies. The basic idea is that the underlying strictly individual perspective of classical liberalism leaves too many normatively relevant elements out of focus. In addition to the dignity and identity of the individual considered in isolation, it is important to consider the relationships between individuals in order to understand their dignity and identity themselves. Deontology is not enough in the understanding of individual dignity. This dignity will always refer to particular social contexts, to societies with specific historical, linguistic, cultural and national features. The actions of the exercising of rights must not be based on the intentions of the actors, but on their consequences, which are never completely cognoscible a priori. To marginalize these features in the analyses using conceptual and purely individualistic abstractions means to impoverish them. Follow- ing this path, we move from the sphere of Kantian morality (Moralität) to that of Hegelian ethicality (Sittlichkeit). In summary, recognition by other individuals is also part of the self. Our relations with the other components of the collective shape the ethics of our political landscape. Our identities are formed through our relationships; our freedom is neither solipsistic nor fragmented. Against the principles of some versions of liberalism, the individual, communitarians will say much later, does not come earlier than his/her aims. Recognition is the target of this interaction. We seek a kind of recognition that satisfies the desire to be admitted in a specific way within the polity. There is a human

22. Philosophy of Right, sec. 142, 182. 92 The Catalan Process need here: that others recognize our status as independent entities with our own characteristics. This implies a relationship that is not necessarily peaceful, but based on the confrontation between different subjectivities. Individual autonomy outlines our subjectivity in part, but the struggle for recognition is what frames our political relations, that is, our inter- subjective relations. Recognition is thus an aspect of political equality in the cultural and national spheres. The search for recognition occurs both among individuals and between groups, as individual autonomy only occurs within a specific community (characterized by its history, language, etc.). Individuals are at the same time independent and dependent from the groups that they are part of, regardless of whether they are voluntary (family, profession) or involuntary in nature (language, history). Thus, recognition, which presides at the transition from morality to ethicality, requires going beyond the Kantian morality and the individualistic perspective of classical liberalism. This approach requires recognition between groups.

B) Moral Collectivism. Nobody has established more clearly than He- gel the human need for recognition. The “liberal” key of the recognition between majorities and minorities should be one that is reciprocal and established on equal footing. This allows us to deal with the relationship between different national groups within a state from a perspective located beyond moral individualism.23 Thus, from the politics of recognition between groups inherent in Hegelian ethicality comes the need to introduce the perspective of moral collectivism besides that of moral individualism. From the perspective of moral collectivism, 1) national groups are seen as legitimate sources of rights and moral claims, that is, they become legitimate actors from the normative links of their members to certain values, institutions and collective projects; and 2) moral collectivism emphasizes that moral autonomy of individuals is not necessarily the liberal value par excellence; other values can take this place in specific contexts, such as collective freedom and tolerance, along with individual autonomy. These would be two require-

23. The position of moral individualism can be summarized by means of two assertions: 1) the autonomy of the self as a subject — conceived as “prior to its ends” — is the liberal value par excellence, and 2) the individual is the last source of any legitimate moral claim. In their “technical” language, Hegel defined the state as “the actual reality Wirklichkeit( ) of the ethical idea.” See Philosophy of Right, sec. 257. Liberal Democracies, Federalism and National Pluralism: Walking from Kant to Hegel 93 ments to establish a successful constitutional and political accommodation of national pluralism in a liberal state. In a plurinational liberal democracy, the perspective of moral collectivism is pluralistic by definition. This is a point that takes us away from He- gel’s monistic view of the state. Moral collectivism in plurinational polities refers to a set of values, interests and identities of an agonistic character, which encourages reaching agreements that will include some of a pragmatic nature (modus vivendi). Berlin (value pluralism) and Taylor (political recognition) may join in a more diverse and complex Sitlichkeit than that stipulated by Hegel. But both are needed, the more individual perspective of Berlin’s liberalism and the more collective perspective of Taylor’s recognition. Following the path of the “atomized” individualism and the monist moral perspective that accompanies traditional state-liberalism means legitimizing relations of domination that de facto exist between national groups within plurinational democracies. In other words, the fact of keeping us in the single perspective of moral individualism means legitimizing the status quo of factual relations of domination present in the institutions, rules and decision-making processes of traditional liberal democracies. Obviously, to highlight the ethical importance of national groups for individuals does not mean accepting that these groups are of a static, eternal, or non-plural character. Like almost everything that is human, national groups are internally dynamic, historical and pluralistic entities. Over time, they change their values, their priorities and their internal composition. But they probably will be replaced by other forms of collective ethicality that will be also a legitimate source of rights, moral claims, constitutional recognition and political accommodation. Hegel provides a theoretical perspective that, despite its statism, is a shift towards a more interactive approach that is normatively and institutionally relevant for the relationship between majorities and minorities in plurinational democracies. In the language of the liberal tradition, this requires establishing collective rights for national minorities alongside individual rights, in order to break the monopoly of state nationalism and a notion of citizenship based purely on the moral individualism and the hegemonic state nationalism which are still very present in most approaches of political liberalism. Potential conflicts between individual rights and collective rights should be regulated in a similar way as conflicts between individual rights are regulated (courts, modus vivendi agreements, etc). But to do it from the premises of pluralist and egalitarian recognition, 94 The Catalan Process composition and procedures of the courts of higher rank (supreme courts or constitutional courts) and intergovernmental relations in plurinational federations should take the national pluralism of the polity into account, following, for example, egalitarian consociational patterns. The analysis of comparative politics shows that the two general objectives of plurinational democracies — constitutional recognition and political accommodation of national pluralism — are achieved in a very incomplete and biased way through mononational and symmetric traditional federal formulas. However, the Hegelian wake of political recognition and moral collectivism, as enlargement of some Kantian concepts, facilitates a “fair and stable” and better implementation of national pluralism through institutions and procedural rules based on plurinational federalism, partnership and consociational models. Both the ethical refinement of democratic theory regarding the relationship between national majorities and minorities in plurinational democracies, and the institutional practice that permits a fair recognition and political accommodation of national pluralism remain a challenge to liberal-democratic theory and constitutionalism in the twenty-first century. Liberal democracies are always incomplete systems when we compare their values and legitimizing language with their constitutional rights, institutions and practical decision-making processes. Skepticism regarding the interpretation of liberal-democratic values always appears when we put what normativeness says in contrast with what reality shows, especially in plurinational contexts. It might well be that the 21st century will see political movements in favour of the “right to decide” by the citizens of minority nations24 who wish to preserve as much collective negative liberty as possible in an increasingly globalised world. Unlike in the recent past, democratic federal theory and practice should turn to pay more attention to these movements. Here, recognition and moral collectivism are new ways to complete and refine classical Kantian approaches. This is a way to prevent the state’s constitution from becoming a mere “piece of paper” (ein Stück Papier). From the perspective of political philosophy, I think that a better way of approaching the main concepts and values of political liberalism in plurinational democracies is to introduce a “He- gelian turn” in order to overcome skepticism and to improve and refine liberal-democratic normativity in this kind of complex democracies.

24. In recent years there have been examples of such movements in Quebec, Flanders, Scot- land, the Basque Country, and Catalonia. Liberal Democracies, Federalism and National Pluralism: Walking from Kant to Hegel 95

To sum up, I think that the most convenient philosophical framework for analyses of plurinational democracies is to walk along the line Kant- Hegel-Kant. That is to say, in order to achieve a just and realistic political accommodation of national minorities in an “advanced liberal democracy,” from a philosophical perspective, it is convenient to come back to moral individualism once we have considered the collective components of this individualism through the concepts of political recognition, Sitlichkeit and moral collectivism linked to Hegelian political philosophy.

References

Agranoff R. (ed.). Accommodating Diversity: Asymmetry in Federal States. Baden-Baden: Nomos, 1999. Baldi, Brunetta. Stato e territorio. Roma-Bari: Laterza, 2003, 2nd ed. 2005. Bauböck, R. “Why Stay Together? A Pluralist Approach to Secession and Federation.” In: W. Kymlicka. Citizenship in Diverse Societies. Oxford: Oxford University Press, 2000. Beran, H. “A Liberal Theory of Secession.” Political Studies, XXXII (1984):21-31. Billig, M. Banal Nationalism. The Cromwell Press, 1995. Birch, A. “Another Liberal Theory of Secession”. Political Studies 32 (1984): 596-602. Buchanan, A. Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. Oxford University Press, 2007. .Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law. Oxford University Press, 2003. .Secession. The Legitimacy of Political Divorce from Sumter to Lithuania and Quebec. Westview Press, 1991. Burgess, M. Comparative Federalism. Theory and Practice. Routledge, 2006. Burgess, M., and A.-G. Gagnon (eds.). Federal Democracies. London-New York: Routledge, 2010. Hechter, M. Containing Nationalism. Oxford: Oxford University Press, 2000. Margalit, A., and J. Raz. “National Self-determination.” The Journal of Philosophy 87/9 (1990): 439-46. McGarry, J. “Federal Political Systems and the Accommodation of National Minorities.” In: Neremberg-Griffiths. Handbook of Federal Countries. Montreal & Kingston: McGill-Queen’s University Press, 2002, 416-447. 96 The Catalan Process

Moore M. The Ethics of Nationalism. Oxford University Press, 2001. Neremberg, K., and A. Griffiths. Handbook of Federal Countries. Montreal & Kingston: McGill-Queen’s University Press, 2002. Norman, W. Negotiating Nationalism. Oxford: OUP, 2006. Parekh, B. Rethinking Multiculturalism. Cultural Diversity and Political Theory. London: McMillian. Requejo, F. “National Pluralism, Recognition, Federalism and Secession (or Hegel was a Clever Guy).” In: A.-G. Gagnon, Soeren Keil, and Sean Mueller (eds.). Understanding Federalism and Federation. Ashgate, 2015, 157-176. .“Federalism and Democracy. The Case of Minority Nations: a Fed- eralist Deficit.” In: A.-G. Gagnon, and M. Burgess (eds.). Federal De- mocracies. London-New York: Routledge, 2010, 275-298. . Multinational Federalism and Value Pluralism. London-New York: Routledge, 2005. Requejo F., and M. Caminal (eds.). Political Liberalism and Plurinational Democracies. London-New York: Routledge, 2012. Requejo, F., and K. J. Nagel (eds.). Federalism beyond Federations. London- New York: Routledge, 2011. Requejo, F., and M. Sanjaume. “Recognition and Political Accommodation: from Regionalism to Secessionism. The Catalan Case.” In: J.F. Gregoire, and M. Jewkes (eds.). Recognition and Redistribution in Multinational Federations. Leuven University Press, 2014 (forthcoming). Requejo, F., and R. Valls. “Somos conflictivos, pero… Actualidad de la tesis de Kant sobre la insociable sociabilidad de los humanos y su prolongación por parte de Hegel”. Isegoría, no. 37 (2007): 127-163. Rodden, J. “Comparative Federalism and Decentralization. On Meaning and Measurement.” Comparative Politics(July 2004): 481-500. Seymour, M. De la Tolérance a la Reconnaissance. Montréal: Les Éditions du Boréal, 2008. . “Secession as a Remedial Right.” Inquiry 50, no. 4 (2007): 395-423. Sorens, J. Secessionism. Identity, Interest and Strategy. McGill’s-Queen’s Uni- versity Press, 2012. Tamir, Y. Liberal Nationalism. Princeton, NJ: Princeton University Press, 1993. Taylor, Ch. “The Politics of Recognition.” Multiculturalism and the “Politics of Recognition.” New Jersey: Princeton University Press, 1992. Walzer, M. Thick and Thin: Moral Argument at Home and Abroad. Notre Dame Press, 1994. Liberal Democracies, Federalism and National Pluralism: Walking from Kant to Hegel 97

Watts, R. “A Comparative Perspective on Asymmetry in Federations.” Asymmetry Series (4), IIGR. Queen’s University, 2005. . Comparing Federal Systems. Montreal and Kingston: McGill-Queen’s University Press, 1999. Wellman, A. A Theory of Secession: The Case for political Self-determination. Cambridge University Press, 2005.

5 Democratizing Sovereignty: the Catalan “Process” in a Theoretical Perspective

Peter A. Kraus

Catalonia has for a long time been one of the main topics — and, to be sure, an eminently controversial one — of political debates in Spain.1 Still, a decade ago, only few observers of the Spanish political scene would have expected to witness what has been happening since 2010 and to see the Catalan challenge moving into the focus of attention of European and international media. The main reason for the new salience of the Catalan question is the procés, as the term goes which Catalan activists have popularized as a catchword for a political dynamic that in their view shall lead towards self-determination and, ultimately, the achievement of full sovereignty of the historical area called Principat de Catalunya. This process, originally initiated by civil society actors and supported by a majority of the political parties represented in the Catalan parliament, is aimed at creating an independent state. According to the view of the bulk of the forces that constitute the sovereigntist block, the new state resulting from Catalonia’s secession from Spain should (and will) remain in the European Union (EU). From the Catalan perspective, independence has become the only viable option to overcome the shortcomings of an autonomy regime that, because of the structural inertia of Spain’s institutional system, does not

1. A previous German version of this article appeared in Europa Ethnica 72, 1/2, 2015, 17-24 (Kraus, “Demokratisierung der Souveränität”). 100 The Catalan Process respond to the aspirations of a collectivity which is conceived of by many of its members as a subjugated nation. Unsurprisingly, what in Barcelona many see as an overdue attempt at emancipation, is generally considered in Madrid to be a dangerous and politically unacceptable venture. The EU and the EU member states have officially adopted the position that dealing with the process is strictly a matter of Spanish internal affairs; at the same time, the implicit signals sent from Brussels and other Euro- pean capitals do not express an excessive sympathy for an independence movement that might impact as an additional factor of destabilization in a Southern Europe which is still struggling with the effects of a deep financial crisis. All in all, when it comes to assessing what the process is about, there seems to be an inclination in the wider European public to interpret the Catalan challenge as a symptom of a larger malaise which has in recent years led to the rise of nationalism, populism, and welfare chauvinism all over the Continent. For many observers, the reason for this rise ultimately lies in the insecurity and fear that Europeanization and globalization are generating among growing parts of the population: in consequence, more and more Europeans would be seeking protection from what they perceive as the threat of losing social status by retreating into particularistic identities.2 Support for the Catalan cause is to be found only where similar demands for achieving full political sovereignty have been — and continue to be — voiced with significant political impact, such as in Scotland, Quebec, or Flanders. In this context, the prevailing approach in social science analyses is to take Catalonia as a typical representative of a group of stronger regional nationalisms in the West, whose main goal, according to the analysts, would consist of making for a clearer correspondence of political and ethno-cultural borders. In this contribution, I deliberately want to refrain from approaching the process by relying on a meta-narrative prone to presenting a substantial critique of identity politics, in general, and of “regressive” ethnopolitical mobilizations, in particular. For reasons apparently connected to the disasters of modern German history, such a meta-narrative is a recurrent frame among scholars working on these phenomena in contemporary Germany.3 I think that this kind of meta-narrative often fails to capture

2. Such is, to mention but one example, the view expressed by the prominent German philosopher Jürgen Habermas in an interview published in November 2014 in the French weekly magazine L’Express. Habermas, “En Europe, les nationalismes sont de retour.” 3. See, for instance, in addition to Habermas, Meyer, Identitätspolitik; Riedel, Die kulturelle Zukunft Europas; Salzborn, Ethnisierung der Politik. Democratizing Sovereignty: the Catalan “Process” in a Theoretical Perspective 101 the actual complexity of self-determination disputes in Europe and other areas of the world adequately. At the same time, however, I doubt that alternative meta-narratives of ethnic conflict, which view ethnic bonds as a “primordially” justified basis for political mobilizations4, offer a much better interpretive template for understanding what is going on in Cata- lonia and similar political settings. Rather, the argument I want to put forward in the following sections is that the traditional vocabulary which is used in the bulk of scholarly research on ethnicity and nationalism has clear limits for offering an adequate analysis of political dynamics of the kind that are currently observable in Catalonia (as well as in Scotland, one may assume). Accordingly, my main point is to show why the recent developments in Catalonia have a significance that goes way beyond an- nouncing one more shift in centre-periphery relations in Spain, relations known to have been as intricate as they have been agitated for centuries. To substantiate this point, I will argue that the key issue in Catalonia today is not “just” finding an answer to the problem of how particular national identities can be adequately represented by using the instruments of minority protection available in liberal democracies; rather, what is at stake is how the foundations of modern statehood, which have a pre-democratic origin, can be changed in democratic ways. In the last section, I will offer hints at how the Catalan “process” seems to challenge the notions of political sovereignty that underlie the Westphalian state system, thereby bearing a remarkable transformative potential in a period of global change. As a first step, however, I will recapitulate in a highly condensed form why Catalonia finds itself today at a critical historical juncture, in a very literal sense, and why the Generalitat, the Catalan government, which has been exposed to continuous pressure from a civil society pushing for sovereignty, has entered a path supposed to lead to the establishment of a state of its own.

5.1. Two Dead Ends and a Possible Way Out

The following paragraphs can offer little more than a rough sketch of the developments that have led to the present situation, a situation which is characterized by the shift from autonomism to independentism. Accord-

4. Connor and Smith may be considered key exponents of such a view; see Connor, Eth- nonationalism;Smith, National Identity. 102 The Catalan Process ing to opinion polls, over the past few years the proportion of citizens in Catalonia who support independence has been oscillating around the 50% mark.5 This implies a clear departure from the political orientations that had for a long time been predominant among Catalanist forces, orientations leaning towards autonomism or federalism and leaving little space for secessionist demands. The turn towards independence reflects a deep discontent with the political trajectory of Catalonia after the reestablishment of autonomy in 1980. As one of the 17 autonomous communities created in the aftermath of Spain’s transition to democracy, when decentralization was the order of the day, Catalonia today finds itself trapped in two political dead ends. The implementation of the “autonomy model” introduced under the imperative of redeeming the post-Francoist democracy from the legacies of an authoritarian centralism that had for centuries impregnated Spain’s politics and administration, led Catalonia into the first dead end. Three and a half decades after the establishment of the foundations of the state of autonomous communities, the balance of political decentralization looks sobering from the Catalan perspective. In the negotiations between representatives of Catalonia and the central government after Franco’s death, the Catalan position was to see the emerging autonomy regime as a template for achieving substantial and institutionally entrenched levels of autogovern (“self-government” in Catalan) in a flexible system of political decentralization. However, under the autonomy model, Catalonia has not been able to attain the political powers typically held by the sub-units of multinational federations such as Canada or Belgium. The model has turned Spain into a decentralized unitary state, yet not into a federation.6 In particular areas, decentralization can be far-reaching and come close to levels that are characteristic of federal states. Nonetheless, the crucial point is that autonomy regulations in Spain ultimately remain always subject to the prerogatives of the centre; this makes for a critical difference between the state of autonomous communities and federal systems. To the extent that Catalonia, as an autonomous community, can act as a “sovereign” player at all, sovereignty has to be understood as a sovereignty “delegated” by Spain, not as a sovereignty “shared” with Spain. Thus, due to the correlation of political forces at the state level, the Generalitat has had little success in its ambition to protect and institution-

5. See the figures presented by the Centre d’Estudis d’Opinió. 6. Kraus, Nationalismus und Demokratie. Democratizing Sovereignty: the Catalan “Process” in a Theoretical Perspective 103 ally armour its powers against incursions by the central state. From the angle not only of the Generalitat, but also of a large majority of the parties represented in the Catalan parliament, the government of the conservative Partido Popular (People’s Party) has in the recent past recurrently, and massively, intervened in policy fields that fall exclusively under Catalonia’s powers. This has affected not only issues which outside observers may consider to be of secondary importance, such as decisions on shop opening times; it has also had significant consequences in domains that play an absolutely central role in Catalan politics, such as language and education. Here, the Spanish executive has undertaken major legislative initiatives to drastically reduce the practice of linguistic immersion in Catalan schools, which is a cornerstone of the policies devoted to revitalizing the Catalan language. Another reason for Catalonia’s growing disaffection towards the autonomy regime is the lack of proper fiscal autonomy. In spite of its relative productivity and wealth, Catalonia remains largely dependent upon transfers that have to be approved by the centre; under the effects of Europe’s financial crisis, the dependence has become even more pro- nounced, leaving Catalonia with hardly any space for seeking a profile of its own in the fields of economic and social policy.7 It was the explicit goal of the socialist Pasqual Maragall, who replaced the moderate nationalist Jordi Pujol as the president of the Generalitat in 2003, to expand and strengthen Catalan self-rule in cooperation with the — then also Socialist — Spanish government. The plan was to be realized by a reform of Catalonia’s Autonomy Statute in the new context of an España plural — as the wording of the time had it. After the Par- tido Popular lodged a constitutional complaint against the reform and a protracted process of judicial deliberations, the highly politicized Con- stitutional Court, dominated by conservative judges, revoked substantial parts of the new Statute. The reform’s spectacular failure can be seen as the proper catalyst of the shift towards sovereigntism in Catalonia. Mobilizations for independence reached a first peak on June 10, 2010, right after the promulgation of the Constitutional Court’s sentence, when hundreds of thousands of citizens took the streets of Barcelona under the motto “Som una nació. Nosaltres decidim.”8 Since that date, the mobilization level of the sectors of Catalan society showing support for independence has remained strikingly high by all comparative standards.

7. Cf. Bel, Anatomia d’un desengany; Paluzie, “Fiscal Issues of Catalan Independence.” 8. “We are a nation. We decide.” 104 The Catalan Process

It must be noted that such support is not only expressed by those citizens who consider themselves to be Catalan nationalists. Since 2010, many Catalans who for a long time prioritized the federalist option have shared in the view that there is no alternative to independence, as all attempts at achieving more substantial levels of self-government in a federalizing Spain are doomed to remain unsuccessful. To situate the Spanish case in the context of international debates on the protection of minorities and of the rights of “nations” and “peoples” without a state, we must keep in mind that Spain is not Canada. Neither is it Belgium or the UK. For an important part of Spain’s state elites, as well as of for large portions of the Spanish population outside Catalonia and the Basque Country, Spain is a homogeneous nation-state, which is grounded — as the Spanish Con- stitution reads — on the “indissoluble unity of the Spanish nation.” The internal dimension of the conflict regarding Catalonia’s political status is basically determined by the clash of two competing logics of nation-building which, over the course of time, have turned out to be incompatible under the conditions of post-Francoist democracy: on the one hand, there is the project of re-inventing the one Spanish nation after a long period of dictatorship; on the other hand is the struggle of Catalans (and Basques) to get a higher quota of effective political power. At the same time, as I will show in the subsequent sections, the weaponry the conflicting parties can put to use in their dispute is very unequal: while one side acts with the devices of sovereign state power, the other side has no equivalent institutional resources and is forced to rely on the persuasiveness of civil society mobilizations to promote its goals. The external dimension of the process is closely connected with the changes of the rationale of European integration during the last 25 years. These changes have ultimately produced the second dead end for Catalan aspirations for self-government. Political figures such as Jordi Pujol or Pasqual Maragall, who left a strong imprint on institutional developments in Catalonia after Franco, set high hopes for Spain’s accession to the Euro- pean Community, the precursor of what we today call the EU, in 1986. To a great extent, their hopes were fuelled by the expectation that Catalonia’s political standing in Europe would improve as a consequence of the cooperation between high-profile regions in the Union and as a result of the representation of such regions in Union institutions. As we can say with hindsight, this expectation turned out to be unrealistic in the Catalan case. In states such as Belgium and the Federal Republic of Germany, the regions or, respectively, the Länder, have the possibility of influencing Democratizing Sovereignty: the Catalan “Process” in a Theoretical Perspective 105

European politics through federal channels, and it is well-known that the territorial sub-units are eager to make use of this possibility. Accordingly, Bavaria or Flanders do have a specific weight when it comes to formulat- ing the political agenda at the European level, at any rate in those matters which are of direct concern to their regional interests. In the case of Spain, in contrast, such channels do not exist, so that Catalonia, like the other autonomous communities, has little say in European affairs. The status of the Catalan language in Europe offers some telling evidence of the weak position of Catalan actors in EU institutions. Several attempts at declaring Catalan, which is spoken by about 10 million Union citizens, an official language of the EU, like Maltese, Finnish, Greek, and, at present, 21 additional languages are, have thus far remained without concrete results. Ultimately, the reason for this failure is that Catalan is not the language of an EU member state. From the perspective of Madrid and, by extension, Brussels, all it can therefore aspire to is to be recognized at the regional level.9 The EU may well have many elements of a transnational polity, but the dominant perspective in this polity is still the perspective of the member states. Initially, after Spain’s accession to the EU, the Generalitat had high hopes that the Committee of the Regions would allow for an effective representation of Catalan interests in the emerging Euro-polity. However, compared to the European Council or the European Parliament, the Com- mittee has remained a residual body in European politics, thereby leaving sub-state actors such as Scotland and Catalonia, who did not come into being as administrative regional units designed according to technocratic criteria, but which are in their self-understanding historic nations, without a proper institutional forum for articulating their interests vis-à-vis the Union.10 The Committee has no mandate to make decisions that could have a major impact on the direction of EU politics; since its establishment in 1992, it has been a politically weak organ with merely consultative functions. Its political profile has become even more blurred in the course of the ongoing “re-nationalization” of European decision-making, which must be considered one of the main effects of the Union’s Eastern enlargement. More than ever since the Maastricht Treaty came into force, the dynamic of EU politics today is controlled by the governments of nation-

9. Milian-Massana, “Languages that are official in part of the territory of the Member States.” 10. See Kraus, A Union of Diversity, 186-187. 106 The Catalan Process states. This is a deeply frustrating development in particular for those sub-states that have legislative powers, and whose original expectation was — as was Catalonia’s — that the EU would successively evolve into a “post-sovereign order”11 beyond the Westphalian state system. For the forces that currently have the political say in the Catalanist camp, there are no concrete perspectives for getting out of the dead ends marked by a rigid autonomy model and by an EU dominated by the institutional logic of nation-states, as long as there is no clear break with the status quo. These forces — supported by many Catalan citizens — have come to see the building of independent state structures as the only realistic path left for achieving collective emancipation within the given context of European politics.

5.2. “Autonomy Is Not Sovereignty”

In a nutshell, the steep increase in the support for independence — that is the increase of the number of independentistes, as they are called in the autochthonous language — was triggered by the blatant failure of the attempt at turning the one into a plural Spain by adopting a new autonomy statute for Catalonia. Confronted with this failure, the hundreds of thousands of Catalan citizens who have been periodically demonstrating to claim the right to determine themselves what their political status should be came to the conclusion that the autonomy regime had not at all been created with the intention of providing them with a share of power that would have made their status similar to that enjoyed by sovereign nations. The rationale guiding the elaboration of the new statute had been based on the idea of turning the state of the autonomous communities into a multinational federation, in which Catalonia could have acted as a co-sovereign territorial unit. It was this very idea that was categorically rejected in the ruling of Spain’s Constitutional Court. As early as in February of 1981, in one of its first sentences, the highest judicial body of the constitutional monarchy had already emphasized that the Spanish Constitution is based on the unity of the Spanish nation, and declared: “Autonomy is not sovereignty.”12 Almost 30 years later, in 2010, the view that the norms of the central state generally take precedence over the

11. MacCormick, Questioning Sovereignty. 12. Quoted after iménezJ de Parga, “Autonomía no es soberanía.” Democratizing Sovereignty: the Catalan “Process” in a Theoretical Perspective 107 norms of an autonomous community served the Constitutional Court as the basis for invalidating key sections of the new Statute of Autonomy for Catalonia. In 2006, the Statute had been passed by parliamentary majorities both in the Catalan and in the Spanish legislative chamber; moreover, it had been ratified through a referendum in Catalonia. It is precisely the struggle over the meaning of sovereignty what makes the process appear as a phenomenon whose political relevance stretches way beyond the context of the conflict between Catalonia and Spain. The key element of the demands raised by sobiranistes13 and independentistes in Catalonia is the dret a decidir (the “right to decide”). This is the right to alter the foundations of a statehood whose origins are pre-democratic by democratic decision-making, thereby making up a new definition of the relationship of sovereignty and democracy. In the system of Euro- pean states that was formed after the Peace of Westphalia (1648), this relationship was characterized by the close connection it established between the identity of the collective subject that in the course of political modernization would become the demos and the territorial state with its clear-cut borders: With the rise of the principle of popular sovereignty, the Staatsvolk — the population virtually “belonging” to the state, as the German concept seems to connote — replaced the monarch as the bearer of sovereignty within a given state unit. This presupposed the identity of people and state. Where the political identity of the Staatsvolk-turned- into-people remained largely uncontested, the conflating of sovereignty and democracy did not become a cause of conflict. Where this identity was a matter of dispute, however, the adoption and implementation of democratic principles, and in particular of majority rule, often had politically destabilizing effects. Applying the principle of rule by the majority requires that majority and minority conceive of themselves as parts of a shared context of political identification — as parts of a “nation.” Only on this basis do majorities and minorities not have a structural character, so that future political realignments can turn a minority into a majority, and vice-versa. If there is no basic consensus about the identity of Staatsvolk and demos, invoking the principle of internal sovereignty to justify a majority decision may lead to major legitimacy problems: As the

13. “Sovereigntists” (sobirania is the Catalan word for ‘sovereignty’). Sobiranisme and independentisme are often used indistinctly in political discourse. However, the terms have slightly different semantic connotations: sovereigntists demand the right to full self-determination for Catalonia, yet this does not necessarily mean that independence is seen as the only possible outcome of the exercise of this right. 108 The Catalan Process borders of the unit that is constitutive of the identity of the Staatsvolk- turned-into-people were not drawn according to democratically justifiable procedures, this very identity can be challenged by structural minorities defining themselves as nations who, in principle, should enjoy the right to self-determination in the same way as the majority does. Built on the postulate cuius regio, eius religio, the Westphalian system managed to “circumvent” this problem by assigning statehood both chronological and normative priority over democracy and self-determination. One of the guiding criteria in the process of establishing the Westphalian state system was the intention of finding a modus vivendi in a Europe torn apart by religious conflict. On the other hand, making the corresponding political arrangements entailed the emergence of an institutional order of states striving to turn their populations into religiously and culturally homogenous subjects. The Westphalian system thereby contributed substantially to shaping these populations in a way that would by and by turn them into “proto-national” collectivities. In this regard, the principles of the Pax Westphalica continued to play an important role in attempts at expanding the basis of legitimate rule in the age of democratic revolutions: Thus, when it came to defining the identity of the demos, the dominant narrative — represented in its most extreme form by the French Jacobins — aimed to amalgamate the identity of the nation — of the sovereign people — and the identity of the state, to blend them into one identity. 14 From the corresponding angle, state sovereignty and democratic sovereignty were seen as all but interchangeable principles. The Jacobin approach may be considered one of the most salient examples of a monist understanding of the sources of political power and citizenship, an understanding that turns pre-democratic sovereignty into a foundation of democratic legitimacy, and which reverberates in the emphasis the Spanish Constitution places on the one and indivisible nation. The problem with the monist narrative, which is deeply inscribed in the institutional logic of the Westphalian order, was that it rarely con- verged with the sociological profile of European states. All over the Conti- nent, the notion of the one nation clashed with the structures of a cultural diversity that stood in remarkable tension with Jacobin visions of a uniform citizenry. Adopting a simplifying scheme of analysis for the longue durée of political modernization in Europe, and ignoring the most extreme attempts at homogenizing the population, such as ethnic cleansing and

14. Eisenstadt, Fundamentalism, Sectarianism, and Revolution. Democratizing Sovereignty: the Catalan “Process” in a Theoretical Perspective 109 expulsion, one can say that European states responded to the challenge that the existence of minorities constituted for the dominant narrative of the unity of the one nation with two main strategies: assimilation and autonomy were the two parallel, albeit obviously different, approaches to tackling potentially dangerous “identity issues” in the system of nation- states built on the institutional logic of Westphalia. That in the Départe- ment Pyrenées-Orientales Catalan is nowadays condemned to a marginal public existence at best is in many respects a consequence of the linguistic assimilation policy of the French state introduced in the Third Republic by Jules Ferry.15 On the other side of the Pyrenees, the institutionally weaker Spanish state was less successful in its attempts to nationalize its territory and impose comparable homogenous standards on the population. Thus, at historical junctures leading to the democratization of rule, such as in 1931 and 1978, the centre was forced to make concessions and offer territorial autonomy to mobilized minorities such as the Catalans. Throughout almost the whole history of modern Spain, the relationship between the Castilian centre and the Catalan periphery has been marked by tensions. Since the fall of Barcelona and the end of the War of Succession in 1714, Spain’s monarchic state and its administrative elites have aimed to concentrate all resources of sovereign authority in the centre. Shifts from centralism to autonomy could only happen in historical constellations brought about by a deeper crisis of the central state and forcing it to refrain from a hitherto nearly absolute monopoly of power. In spite of the recurrence of such crises, in the long run it became clear that the shifts did not imply a break with the monist logic of political integration characteristic of the Spanish path to state-building. In general terms, autonomy regulations are meant to reduce the pressures towards assimilation that minorities experience vis-à-vis the “majority state.” Au- tonomy, however, should not be confused with a departure from the key institutional principles of the Westphalian state system. Rather, it is the exception that confirms the rule of monism, as one can realize by taking a quick look at political maps of Europe. On these maps, each state gets its own particular colour; yet, each state only has one colour, as it has only one flag, and, in most cases, only one capital and one head of state. The maps thereby suggest that there is only one source of sovereignty, a sovereignty that at the same time expresses the hegemony of the one nation. With few

15. Weber, Peasants into Frenchmen. 110 The Catalan Process exceptions, this one nation with its “own” colour largely overlaps with a dominant majority.16 Saying that a minority group or a nationality is autonomous is therefore equal to saying that it is not sovereign. Quite obviously, this is the position the Constitutional Court has adopted in its rulings devoted to delineating Catalonia’s political powers in the state of autonomous communities. From the corresponding perspective, autonomy appears to be a mechanism introduced with the intention of making it more bearable for the Catalans to be subject to a hegemonic defining power based on a monist notion of sovereignty; it is not at all meant to be a mechanism that could question this very defining power. When it comes to dealing with issues of diversity and cultural difference, it becomes evident that making the effort of adapting and compromising is, all in all, a business for minority members to take care of. Let me put it bluntly: developing dual (Catalan-Spanish) patterns of political loyalty, as well as functional bilingual (Catalan-Spanish) communicative skills is a “privilege” reserved for the citizens of Catalonia, while Spanish “standard citizens” remain “exempt” from making comparable “efforts” at building complex identities. In other words: under the autonomy regime, “being Spanish” is the rule (set by the sovereign), while “being Catalan” is the exception (tolerated by the sovereign). The uneven burden that “standard” citizens and “autonomous” citizens are supposed to bear when it comes to tackling diversity becomes immediately apparent when we look back at the España plural-debate. The plan of creating a “plural” Spain was promoted by Catalan socialists under the leadership of Pasqual Maragall; initially, it also received the support, at any rate rhetorically, of the Spanish Prime Minister at that time, José Luis Rodríguez Zapatero. On the one hand, the plan was meant to further a substantial expansion of the political powers of the Generalitat; on the other hand, it also intended to contribute to “catalanizing” Spain by giving Catalonia greater visibility and a more significant political weight at the level of central state institutions. Confronted with the massive resistance the process of drafting a new statute for Catalonia generated especially (but not exclusively) in the more conservative sectors of the Spanish public, the Zapatero executive soon abandoned the España plural-discourse. At the headquarters of the Spanish government, the broad response to

16. The following paragraphs draw on the argumentation put forward in Kraus, “Caught in the Minority Trap,” 81-89. Democratizing Sovereignty: the Catalan “Process” in a Theoretical Perspective 111 the campaign of the Spanish-nationalist right against the statute outside Catalonia instigated fears that in the next election a majority of Spanish voters would not embrace the new approach of an España plural, but rather express their preference for sticking to the traditional image of the one Spanish nation In the political world of Westphalia, where the Spanish state may be considered a model pupil, protecting diversity is, in the first place, something left for minorities to do. The normative purpose of introducing autonomy regulations in this world is to provide those minorities who want to preserve their specific identity features with instruments for avoiding assimilation. According to the more enlightened versions of the Westphal- ian creed, one could say a state has the obligation of tolerating a minority. Yet toleration is a long way from recognition. Now, political recognition is the very minimum minority nations such as the Catalans are clamouring for in Europe today. Minority groups who struggle for their recognition are not primarily fighting against social exclusion or for material benefits. Their genuine objective consists of forcing the dominant majorities to accept their self-categorizations, which they consider to be expressions of an identity experienced as authentic.17 More than anything else, the operation of recognizing involves accepting others’ self-categorizations. In the context of the autonomy model, however, the logic of the operation varies quite significantly depending on whether its subject belongs to the dominant majority M or to the dominated minority m. Even if members of M do recognize members of m as “others,” this “otherness” remains limited to a sphere that is defined as autonomous and situated outside the M-territory. In contrast, members of m are expected to internalize the M-profile as part of their own identity. In this respect, it seems evident that autonomy arrangements are built on unequal recognition, and tend to reproduce unequal recognition. The very failure of all attempts at transforming the state of autonomous communities into an España plural bears witness to the political shortcomings of an order grounded on unequal recognition: Thus, under the autonomy regime, Catalan citizens are supposed to manufacture a reflective balance between the dual patterns of identification of being Catalan and being Spanish, while the members of the dominant Spanish nation, which represents the “standard” set by sovereign power, can just stick to their traditional identity.

17. See Allardt, Implications of the Ethnic Revival; Taylor, Multiculturalism. 112 The Catalan Process

The conflict over the status of Catalonia therefore shows that, in a Westphalian order in which political power and cultural identity appear to be closely intertwined, autonomy regulations may well end up being a minority trap. To be sure, for those who belong to one of the many m-groups in this world, autonomy does offer a welcome protective umbrella against assimilation. Yet autonomy was not invented as an asset for empowering m-groups and providing them with the levels of sovereignty enjoyed by those who belong to an M-group. In the context of the Westphalian order of states, which continues to be firmly in place, autonomy is the expression of a hierarchical system of self-categorization, which perpetuates the subordination of non-dominant vis-à-vis dominant groups. Not only is autonomy not sovereignty; ultimately, autonomy is non-sovereignty. The aspiration to reach levels of empowerment beyond the hierarchical limits of autonomy has become the elementary normative driving force of the Catalan process. For the supporters of sobiranisme, achieving free self-categorization only seems possible if the Catalans move up to the rank of M-groups, thereby acquiring the institutional resources that allow for merging territory and identity under the safeguard of an independent state.

5.3. Sovereignty in the “Process,” Sovereignty in Process

In the political discourse of independentism, which rotates around the dret a decidir, democratic demands play a way more prominent role than ethno-national considerations. In this regard, Catalan sovereigntism largely differs from the historical record of the secessionist movements of other “smaller” nations in Europe, and, in particular those of Central Eastern Europe.18 For these precursors of contemporary sovereigntism, the legitimacy of their demands resulted primarily from their representing a particular ethno-national identity. It seems obvious that the existence of such an identity — first and foremost connected to language — has a great bearing for the process as well. Nonetheless, in contrast with the bulk of national movements in the East that succeeded in establishing new states after the First World War and after the breakdown of the Soviet Union, the invocation of the nationality principle and the claim of constituting a particular ethnic group appear to be secondary aspects

18. Hroch, Social Preconditions of National Revival in Europe. Democratizing Sovereignty: the Catalan “Process” in a Theoretical Perspective 113 in the current political context of Catalonia; what is of a much greater importance is the claim that the process is the democratic expression of an emergent community of will. In this regard, it is quite symptomatic that one of the most active civil society actors giving support to independence is Súmate,19 an association that represents Spanish-speaking people in Catalonia. Nor is it a coincidence that a work that should leave a long-term impact on the sovereigntist agenda bears the title “Catalonia: From Iden- tity to Independence.”20 In the book, the philosopher and former Socialist member of the European Parliament Xavier Rubert de Ventós makes a pas- sionate plea for understanding independence as a political project beyond all the identity-based myths that he considers to be obsolete characteristics of the traditional nationalisms of the Westphalian state order. In this order, secession remains a very taboo issue. Charles Tilly, the great American sociologist, interpreted the period of early state formation in Europe as a process that shows many parallels with the history of organized crime.21 To a remarkable extent, state borders continue to represent the arbitrariness and the injustices of the past. This is precisely why, as one may put it provocatively, their continuity carries such a great weight in international politics. It is true that the principle of invulnerability of state borders has made a decisive contribution to pacifying inter-state relations in the Westphalian world, and it is certainly not my intention to negate the pacifying effects the invocation of the sovereignty principle has produced all in all in the state system externally — i.e. with regard to the relations between a state and its neighbouring states. At the same time, however, in a European Union built in the name of democracy and the rule of law it is hardly justifiable that questions connected to drawing up borders and collective belonging are not allowed to figure on the political agenda, even less so if such questions arise in connection with disputes on how sovereign rights have to be brought to bear internally, i.e. in the relations between a state and its citizens or, rather, particular segments of the citizenry. The fusion of popular sovereignty and established state structures was the result of the realpolitik of the 19th and 20th centuries, a realpolitik strongly marked by Jacobinism and statism. But the weight of factual powers should not be conflated with normative necessity. A key argu-

19. “Join in,” in a free translation from Spanish. 20. Rubert de Ventós, Catalunya. 21. Tilly, “War Making and State Making as Organized Crime.” 114 The Catalan Process ment of the advocates for keeping secession as a taboo consists of pointing out that questioning the primacy of established statehood will result in a multiplication of new states and thus a dynamic leading to political destabilization and chaos at the global level. Yet, there is not strong evidence at hand that suggests that the United Nations, with its approximately 200 members, is much more unstable than the League of Nations, formed in the interwar period by some 50 states. Notwithstanding the priority the structures of established statehood enjoy in the world of real politics, it has reasonably been argued that a system of many small states will be more beneficial for the progress of humanity and universal peace than the concentration of political power in the hands of a small number of larger states.22 At any rate, and beyond the level of speculation, it cannot be denied that the founding of a great number of new states in the 20th century was a phenomenon concomitant to the great historical waves of democratization at the end of World War I and after the breakdown of Communist rule. In these contexts of sweeping change, emerging demoi took the opportunity to exercise the right to national self-determination. This exercise may well have been connected in most cases to a traditional rather than a transformative understanding of the identity of demos and nation. Nonetheless, there is no conclusive evidence showing that the multiplication of sovereign states on the maps of Europe and Eurasia has brought about a durable threat to the international system. In a context of increasing political and economic interdependence at the global level, sovereignty can hardly be seen as an absolute category anymore. Accordingly, the ongoing trend towards the founding of new political units should not lead us to all too dramatic conclusions. The resurgence of the concept of sovereignty, a concept that many scholarly observers, especially in Europe, regarded as obsolete in view of the intrica- cies of multi-level governance “beyond the nation-state” is in many cases connected to the rise of new democratic aspirations. Obviously, secessionism should not in general be considered the ideal political cure for the evils caused by the hitherto historically hegemonic ways of institutionalizing sovereignty. Neither should it be discarded, however, that secession can be a necessary means for overcoming hegemonic structures. To the extent that it is a remedy against structural domination, secession should not be made taboo. On the one hand, we can assume that the risks of international disorder caused by the creation of new sovereign polities are largely

22. Kohr, Breakdown of Nations. Democratizing Sovereignty: the Catalan “Process” in a Theoretical Perspective 115 counterbalanced by the formation of transnational regimes with substantial regulatory powers in key policy areas. On the other hand, as I have tried to show, the possibility of breaking up established state structures must be a realistic threat option for minorities, nations without a state, and other subordinate groups in order for them to have a chance to end their very subordination and achieve equal recognition. In this respect, the new secessionism might ultimately contribute to defining sovereignty in a way that broadens its normative scope beyond the rigid limits of the Westphalian order. From this perspective, coming up with fair and cred- ible standards for dealing with secessionist demands should be considered a political task that is as urgent in Europe as in other parts of the world.23 To the extent that my assessment of the question of sovereignty holds, the political developments in Catalonia can be interpreted as a harbin- ger of more far-reaching transformations that are pushing sovereignty in a post-Westphalian direction, and thereby opening the concept up for innovative forms of democratic self-determination. The transformative appeal of the Catalan quest for self-determination stems precisely from the potential that this quest has for democratizing sovereignty and leading subordinate groups out of the minority trap. The innovative political thrust that Catalan sovereigntism has exhibited thus far can be illustrated by pointing out three key dimensions of the process. Firstly, the basis of the sovereigntists’ self-definition is not an ethnic, but a democratic one. The adversary of sobiranisme is neither “Spain” nor the “Spaniards,” but a state whose immobility in all matters related to the territorial distribution of power has been the main catalyst for Catalonia’s striving for independence. When it comes to defining the identity of the Catalan nation, it is beyond all dispute that civic and voluntaristic concerns make up the discursive backbone of the sovereigntist movement.24 The impressive mobilizing capacity shown by civil society associations and political organizations pushing for sovereignty over recent years is to a great extent an effect of the decidedly democratic and inclusive orientation adopted by the bulk of Catalanist forces. To give but one example: in the quasi-referendum on independence held on November 9, 2014 — an event that had to be declared a “participatory process” and organized under semi-legal conditions due to the obstructive position of the Spanish government — all foreigners registered in Catalonia and older than 16

23. Kraus, “Caught in the Minority Trap,” 91. 24. Cf. López, Independencia de Cataluña, 114-122. 116 The Catalan Process years of age were allowed to cast a vote. For a clear majority of its supporters, the process is not supposed to lead to an independent polity that imitates traditional nationalism by institutionalizing the patterns of a “primordial” collective identity; its declared aim, rather, is to break with the monopoly the central state, acting in the name of the one sovereign Spanish nation, has in officially assigning identities to its citizens. Secondly, as is to some extent deducible from the previous argument, the sovereigntist discourse does not articulate a fictional homogeneity. The search for a Catalan “Volksgeist,” which a century ago was a matter of great concern for early theorists of Catalan nationalism such as Enric Prat de la Riba25 (1978 [1906]), is not an issue that keeps attracting the attention of many supporters of independence. Like all Western-style societies, Catalonia is today characterized by the structures of a complex diversity. In such a context, simplistic identity attributions appear to be at best obsolete, and at worst reactionary. Prominent spokesmen of the sovereigntist cause seem to be well aware of this, as transpires from their public declarations. Ever since the Renaixença — the revival of Catalan culture in the 19th century — the autochthonous language has been the preeminent icon of Catalan identity politics. Nonetheless, neither Artur Mas, President of the Generalitat for the liberal Convergència Democràtica de Catalunya until January 2016, nor Oriol Junqueras, leader of the left-Catalanist Es- querra Republicana, consider the coexistence of Catalan with Spanish to be a zero-sum game. Mas declared explicitly that Spanish-Castilian would maintain its co-official status in an independent Catalonia. Junqueras shares this position; moreover, in a newspaper contribution published in 2014, he called Spanish “the language of my friends, of my people.”26 If there is a litmus test for giving a political assessment of the different identity projects competing in present-day Europe, this test probably consists of asking: “How do we deal with diversity?” High-profile representatives of sobiranisme, such as Junqueras and Mas, have shown little reservation in emphasizing that they regard the cultural and linguistic diversity of Catalan citizens as a precious asset and that the project they defend does not stand for uniformity, but for diversity. They thereby move along a line that has been characteristic of Catalan politics since the reestablishment of autonomy, a line according to which the appreciation of diversity should

25. Prat de la Riba, Nacionalitat catalana. 26. Quoted after Kraus, “Language policy and Catalan independence,” 138. Democratizing Sovereignty: the Catalan “Process” in a Theoretical Perspective 117 precisely be a feature that differentiates Catalonia’s institutional approach from that adopted by Spain’s central governments. Thirdly, and finally, the notion of sovereignty which the bulk of secession supporters share is a notion of a deliberately weak sovereignty, a sovereignty contained in the political framework of the European Union. In this respect, the process has adopted programmatic positions which are quite similar to the Scottish discourse on independence in Europe.27 According to such positions, sovereignty today can hardly be more than sovereignty in interdependence with others. This corresponds to the view that sovereignty in contemporary Europe must be conceived of as something fragmented and variable, as a principle that does not allow for exercises in monist reductionism anymore. Against the background of a Europe supposed to break with Westphalian schemes, sovereignty can only be comprehended as sovereignty in plural, as a system of intertwining sovereignties in which political authority is distributed across super-state, state, and sub-state levels, in which executive functions overlap, and cultural diversity is recognized on the basis of equal status. Seen from this perspective, the Catalans’ struggle for sovereignty may well be interpreted as an attempt at its supersession, at its “Aufhebung” in a Hegelian sense, and thereby ultimately as an attempt to contribute to a political change directed at giving sovereignty a qualitatively new democratic meaning beyond the constraints of the Westphalian order.

References

Allardt, Erik. Implications of the Ethnic Revival in Modern, Industrialized Society. A Comparative Study of the Linguistic Minorities in Western Europe. Helsinki: Societas Scientiarum Fennica (Commentationes Scientiarum Socialium 12), 1979. Bel, Germà. Anatomia d’un desengany. La Catalunya que és i l’Espanya que no va poder ser. Barcelona: Destino, 2013. Centre d’Estudis d’Opinió. Baròmetre d’Opinió Política, 34, 1a Onada 2015. Dossiers de premsa. Barcelona: Centre d’Estudis d’Opinió - Generalitat de Catalunya, 2015. http://ceo.gencat.cat/ceop/AppJava/pages/home/ fitxaEstudi.html?colId=5268&lastTitle=Bar%F2metre+d%27Opini%F3+ Pol%EDtica+%28BOP%29.+1a+onada+2015[last accessed 31 March 2015].

27. On the European dimension of the Scottish project see Nairn, Old Nations. 118 The Catalan Process

Connor, Walker. Ethnonationalism: The Quest for Understanding. Princeton, NJ: Princeton University Press, 1994. Eisenstadt, Shmuel N. Fundamentalism, Sectarianism, and Revolution: The Jacobin Dimension of Modernity. Cambridge: Cambridge University Press, 1999. Habermas, Jürgen. “En Europe, les nationalismes sont de retour.” Interview in L’Express (17.11.2014): http://www.lexpress.fr/actualite/monde/europe/jurgenhabermaseneuropelesnationalismessontderetour_1621409. html [last accessed 18 Feb 2016]. Hroch, Miroslav. Social Preconditions of National Revival in Europe: A Com- parative Analysis of Patriotic Groups among the Smaller European Nations. Cambridge: Cambridge University Press, 1985. Jiménez de Parga, Manuel. “Autonomía no es soberanía.” ABC (12.09.2009): http://www.abc.es/20090912/opinion-tercera/autonomia-sobera- nia-20090912.html[last accessed 11 Feb 2016]. Kohr, Leopold. The Breakdown of Nations. Totnes: Green Books, 2001. Kraus, Peter A. Nationalismus und Demokratie. Politik im spanischen Staat der Autonomen Gemeinschaften. Wiesbaden: Deutscher Universitäts- Verlag, 1996. . A Union of Diversity: Language, Identity and Polity-Building in Europe. Cambridge: Cambridge University Press, 2008. . “Caught in the Minority Trap: Limits of Territorial Autonomy.” In: Karlo Basta, John McGarry, and Richard Simeon (Hrsg.). Territorial Pluralism: Managing Difference in Multinational States. Vancouver: UBC Press, 2015a, 74-96. . “Language policy and Catalan independence.” In: Klaus-Jürgen Nagel, and Stephan Rixen (Hrsg.). Catalonia in Spain and Europe: Is There a Way to Independence? Baden-Baden: Nomos, 2015b, 128-139. López, Jaume. La independencia de Cataluña explicada a mis amigos españoles. Barcelona: RBA, 2014. MacCormick, Neil. Questioning Sovereignty. Law, State, and Nation in the European Commonwealth. Oxford: Oxford University Press, 1999. Meyer, Thomas. Identitätspolitik. Vom Missbrauch kultureller Unterschiede. Frankfurt a. M.: Suhrkamp, 2002. Milian-Massana, Antoni. “Languages that are Official in Part of the Ter- ritory of the Member States: Second-class Languages or Institutional Recognition in EU Law?” In: Xabier Arzoz (Hrsg.). Respecting Linguistic Diversity in the European Union. Amsterdam: John Benjamins, 2008, 191-229. Democratizing Sovereignty: the Catalan “Process” in a Theoretical Perspective 119

Nairn, Tom. Old Nations, Auld Enemies, New Times. Edinburgh: Luath Presss, 2014. Paluzie, Elisenda. “Fiscal issues of Catalan independence.” In: Klaus-Jürgen Nagel, and Stephan Rixen (Hrsg.). Catalonia in Spain and Europe: Is There a Way to Independence? Baden-Baden: Nomos, 2015, 140-155. Prat de la Riba, Enric. La nacionalitat catalana. Barcelona: Edicions 62, 1978 [1906]. Riedel, Sabine. Die kulturelle Zukunft Europas: Demokratien im Zeitalter globaler Umbrüche. Wiesbaden: Springer VS, 2015. Rubert de Ventós, Xavier. Catalunya: de la identitat a la independència. Bar- celona: Empúries, 1999. Salzborn, Samuel. Ethnisierung der Politik. Theorie und Geschichte des Volks- gruppenrechts in Europa. Frankfurt a. M.: Campus, 2005. Smith, Anthony D. National Identity. London: Penguin, 1991. Taylor, Charles. Multiculturalism and “The Politics of Recognition.” Prince- ton: Princeton University Press, 1992. Tilly, Charles. “War Making and State Making as Organized Crime.” In: Peter Evans, Dietrich Rueschemeyer, and Theda Skocpol (Hrsg.). Bringing the State Back. Cambridge: Cambridge University Press, 1985, 169-187. Weber, Eugen. Peasants into Frenchmen: The Modernization of Rural France. Stanford: Stanford University Press, 1976.

6 The Right to Decide: a Right of the 21st Century

Jaume López

6.1. What Can Be Done in the 21st Century if a Political Community Wants to Become an Independent State?

This question, which may seem meaningless for many people, turns out to be both relevant and necessary for millions of citizens around the world, as it is an expression of their will.1 Unless one considers current states as untouchable and unchangeable moral goods, then even the narrow- est readings of democratic principles will lead us to clearly consider that there should be a democratic formula to allow the public to weigh in on this issue. Citizens should be able to decide the basic institutional design of their political community, including, if this is their will, reconfiguring the administrative and political boundaries. Otherwise, the implication is that important issues with very relevant political consequences would remain beyond the reach of democratic procedures and, even worse, that there is a tacit acceptance that the use of violence or armed conflict is

This text is partially based on chapter 1 in Barceló,Derecho a decidir; and López, “A ‘right to decide’?”28-41. 1. This is the case of Catalonia where there have been several huge demonstrations, initially in favour of calling a referendum to decide Catalonia’s future political status (between 2006 and 2011), and later, from 2011 onwards, in favour of demanding to become an independent state. 122 The Catalan Process the only way to resolve them. So, without abandoning the democratic framework, what can be done if a political community wants to become a new state? To answer this question, it is useless to ask about the causes that have generated such a demand, just as we don’t ask why voters cast their vote on any other matter. The voter’s will is, by definition (at least in our modern democracies), legitimate, no matter what has motivated it: belief, level of education or social status, etc. Naturally, no majority will is entitled to violate fundamental rights and neither would it be so in the case of the creation of a new state. Equally, what should also be asserted is that the preservation of an existing state should not be the cause of any violations of fundamental rights. And what is more fundamental in a democracy than the ability to express one’s democratic will politically? Is it not a violation of the citizens’ rights to impede a referendum asking them to express their position on a fundamental political issue that contains broad social demands which have been sustained over time? The recognition of this will should be the first step in exerting it. Nowadays, a conception of democracy that assumes that the possibility of asking citizens whether they want to remain part of their present state can be denied should be considered as a limited or low-quality expression of democratic principles. Modern democracy has advanced greatly since the revolutions that led to its establishment in the 18th and 19th centuries. It has been developed thanks to the recognition of new rights, from civil rights to social rights, which have also contributed to strengthening its own foundations. In the 21st century and in accordance with this democratic evolution, some defend the existence of a new right as the only viable framework for resolv- ing some of today’s most pressing political challenges. This new right has come to be known as “the right to decide.” Admittedly, it is a right which is not drawn explicitly from any national or international law. This does not mean, however, that it cannot become a part of either legal framework. The same goes for many other rights with widespread social support, whose validity is not questioned despite not appearing literally in any fundamental declaration or constitution. The right to marriage between members of the same sex, the right to rest, the right to be forgotten, to name a few, are examples of allowances with a clear constitutional basis that legislators could not have foreseen. The right to decide is in this same position. It must not be confused with the right to self-determination, however, which has explicit expression in international law, linked, since World War II, to the decolonization The Right to Decide: a Right of the 21st Century 123 of former colonial empires. According to the United Nation’s Special Com- mittee on Decolonization, there are still 17 pending cases of decolonization in the world, potential subjects of the right to self-determination, including Gibraltar and Western Sahara. The right to decide is a different concept. Specifically: it is the individual right of collective exercise (such as, for instance, the right to strike) of the members of a territorial and democratically organized community to express and carry out, through a democratic process, their will to redefine their political status and the basic institutional framework of their community; this includes the possibility of establishing an independent new state. It is a right that can be based on the principles of the Spanish Constitution and international law.2 Next, I focus in detail on three key questions that are commonly raised in relation to the right to decide: why must the right to decide not be confused with the right to self-determination? What relationship does it hold with normative theories on secession? And finally, what sort of relationship can be established with regard to the rights of minorities?

6.2. The Relationship between the Right to Decide and the Right to Self-Determination

Although the foundations of the right to decide and the challenges that it seeks to overcome can be framed within the context of the development of the democratic principle in modern liberal-representative democracies, there are noticeable ties to (and differences with) the right to self- determination.3 These ties have led most authors and politicians to confuse the right to decide with a sort of “make-up” for the right to self-determination. It is seen as a political marketing method for expressing the same, more traditional and worn-out term, the connotations of which, accumulated over time, must be overcome. This is not the approach I advocate here. On the contrary, I believe that the so-called “right to decide” equates to a new regulatory paradigm resulting from the development of the demo-

2. Its rationale, scope and criteria of application, especially with regard to the Spanish Constitutional framework, are explained in detail in Barceló, et al.,Derecho a decidir. 3. See López, “Del dret a l’autodeterminació al dret a decidir.” And also López, “A ‘right to decide’?,” 28-41. 124 The Catalan Process cratic principle and the understanding that current states are purely the result of historical circumstances — wars, pacts and various historical events — rather than of democratic decisions, which can only be legitimized to the extent that they can prove useful in meeting the demands of their citizens at different levels (from democratic, to welfare, and even identity). History cannot legitimize the existence of these states, yet it can explain their existence. Moreover, the concept of the right to self-determination has far stronger ties to historical legitimacy. It is based on the affirmation of the historical existence of nations and peoples, with a set of features that makes them easy to recognize, and to which we can attribute certain rights. It is possible to draw a parallel here between individuals and nations. The existence of an individual affords him or her intrinsic rights. The same claim can be made for nations and people; from this perspective, every nation is a potential state. This was at least the first reading of the right to self-determination when this term was popularized by President Woodrow Wilson in his so-called Fourteen Points Speech (1918). His proposal led to the gradual development of an internationally recognized right, first without a precise legal form and, over the years, with an increasingly restrictive definition, but with greater legal foundation. The right to self-determination laid the foundations for the League of Nations and the agreements that ended World War I. It had peoples and nations as a subject, usually as parts of empires and often enjoying geographical and administrative, although not political, recognition. The ultimate objective of the right to self-determination, at least in this context, was to settle existing border disputes arising as a result of war, by considering the aspirations of the constituent units. As such, this had the potential to lead to the creation of new states, such as by the redesign of the boundaries of existing ones. The will of these peoples and nations should be taken into account insofar as it could contribute to international stability. This vision and the ultimate objectives intended to be achieved through the right to self-determination have changed over time; we may even speak of a new chapter in the development of the right to self-determination after World War II. The founding Charter of the United Nations, in its first article, makes explicit reference to this right; in addition, since 1945, it has become the legal basis for many decolonization processes that have overcome the initial Eurocentric context that characterized its previous development. The Right to Decide: a Right of the 21st Century 125

It is worth mentioning a few key moments in the evolution of the right to self-determination towards a right whose subject has since been the territories and colonies of colonial powers. In the Declaration on the Granting of Independence to Colonial Countries and Peoples (1960) and the United Nations Declaration on Principles of International Law Con- cerning Friendly Relations and Cooperation between States (1970) the link between the right to self-determination and territories under colonial rule is fully formulated. It also appears in other documents, such as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (both 1976) claiming also that “All peoples have the right to self-determination,” interpreting the concept legally in the sense mentioned above. According to the United Nations, there are only 17 cases of decolonization still pending (in inhabited territories) as of 2013.4 In Africa: the Western Sahara; in America: Anguilla, Bermuda, the Cayman Islands, the Falkland Islands, Turks and Caicos, the British Virgin Islands, the United States Virgin Islands, Montserrat, St. Helena; in Europe: Gibraltar; in Oce- ania: Guam, New Caledonia, Pitcairn, French Polynesia, American Samoa, and Tokelau. In all these cases, the right to self-determination is defended as a means of establishing sovereignty definitively through referendums.5 From the point of view of current international law, some of the groups which demanded their right to self-determination after World War I and who obtained recognition of their demands from the international community (with the result of being acknowledged as new states) would not be subject to this right today. Indeed, today’s context is different, as Europe is no longer made up of empires. It must therefore be emphasized that the interpretation of a law is always contextual, even when a particular interpretation is legally fixed. This is mostly to do with the nature of the problem that is intended, at heart, to be solved by the recognition of such

4. http://www.un.org/en/decolonization/nonselfgovterritories.shtml. 5. An example of the lack of legal dispute raised by the right to self-determination applied to these cases (although it did not prevent the political dispute) can be found in the report issued by the Bar of the City of New York (New York City Bar Association, 2012) on the Western Sahara case, after the conclusions by the United Nations Mission for the Referendum in Western Sahara (1991) that strongly supported the need for a referendum among Sahrawis. The report dismantles all arguments contrary to the referendum argued by the Moroccan side, and explores the legal basis for doing so. The report concludes that under international law any plan for Western Sahara that would eliminate the option of independence from the wording of the referendum organized to exercise the right of self- determination will be well understood to be illegitimate. 126 The Catalan Process a right; at least, this is a conclusion drawn from the evolution of the right to self-determination. Indeed, from a less legalistic position, some political and theoretical positions take the view that the right to self-determination cannot be circumscribed only to former colonies, as widely interpreted since 1945. Their subject should have a broader definition instead, possibly more in line with the original definition of identifying peoples and nations.6 How- ever, this position is not the most widespread when it comes to interpreting the contents of the right to self-determination. It is not understood in this manner, for example, by the Supreme Court of Canada in its opinion on the possibility of the unilateral secession of Quebec (1998), as it does not consider Quebec subject to this right. The same goes for the International Court of Justice (ICJ) in its opinion on the accordance with international law of the unilateral declaration of independence of Kosovo (2010); stating that it does not take into account this right in assessing the legality of the declaration. In both cases, it is clear that the subject of the right to self-determination, as understood in international law, are, in the words of the International Court of Justice, “non-self-governing territories and peoples subject to alien subjugation, domination and exploitation” (ICJ. 2010: paragraph 79). In fact, when, in these two legal documents, the conditions that may legitimate secession within international law (Kosovo) or constitutional law (Quebec) are discussed, a number of political principles which can be encompassed by the right to decide are evident, although they are not explicitly mentioned as such. To clarify, when the democratic principle is taken into account concerning Quebec’s will and it is stated that, if it were in favour of independence, it should imply a process of negotiation with the state, the (democratic) problem of a permanent territorially-based minority that is appealing for recognition is assumed. Likewise, the need to develop a negotiating process between two democratic majorities is accepted: the majority of the demos of this sub-state and the majority of the demos of the whole state. Also, in the case of the opinion on Kosovo, a shift in the central argument of the judgement may be highlighted and, by extension, a shift in the notion of the legitimacy of a secession process that can be linked to

6. Some authors (Hechter, Internal Colonialism; González, “Colonialismo interno”) also refer to a non-explicit colonial relationship that, although it does not involve an imperial power and its colonies, takes place between the central government and the sub-state units, when the former constantly discriminates the latter. The Right to Decide: a Right of the 21st Century 127 the right to decide. The principles behind the ICJ’s decision not to declare Kosovo’s independence illegal based on international jurisdiction can be listed in the form of the following conditions (or aggregates):

1. If there is no violence (ICJ. 2010: paragraph 81). 2. If all avenues of possible negotiation between the state government and the sub-state community have been exhausted (ICJ. 2010: paragraphs 68, 69 and 72). 3. If the political will of the sub-state community has expressed itself democratically (ICJ. 2010: paragraph 73 and 76).

And given that:

4. Secession does not attempt to violate the principle of territorial integrity enshrined in international law (ICJ. 2010: paragraph 80).7

Keeping in mind also that:

5. The constitutional legality of secession is not judged. (It would probably be unlawful from this point of view.) 6. The nature of the sub-state demos is not used as an element in the consideration of the claim. No reference to a national condition (or not) is required. This condition is irrelevant in the reasoning of the ICJ.

These six elements do not lead to a legal unilateral declaration of the independence of Kosovo. Rather, the conditions raise an argument that concludes that the demand for independence is not illegal, but that it has nothing to do with the right to self-determination, which is reserved for cases of a different political nature. That is to say, this consideration concerning legitimacy is situated within a new framework, which does not correspond to the same parameters traditionally used to evaluate independence as a consequence of decolonization. This framework, as yet still under construction, is coherent with everything said here in relation to the right to decide. At any rate, new interpretations of existing rights are always possible, even if their legal definitions are fairly tightly bound. In this sense, it

7. “The scope of the principle of territorial integrity is confined to the sphere of relations between States” (paragraph 80). 128 The Catalan Process is possible to imagine a future extension of the legal significance of the right to self-determination. A right to self-determination of a third or even fourth generation could be imagined. The first generation of the right to self-determination (1918-1945) focused on the inter-war context and had peoples and nations as its subject (in a clearly ethnic sense); the second generation (1945-present) has developed within the context of decolonization and has had colonies as its subject. In the future, there could be a third generation, within the context of Western liberal representative democracies with stateless nations as its subject; and even a fourth generation, in which the subject would not necessarily have to be a nation. The right to decide could be linked to the third and fourth generation of the self-determination right if it is stressed that its relationship with the nation is purely empirical (the right to decide usually occurs where there are stateless nations), rather than normative (a new state is not legitimized by the existence of a nation, but by the existence of a permanent democratic will). In any case, the two potential future interpretations of the right to self-determination, as understood either in a broad or in a non-legalistic sense, clearly show that the right to decide is an expression of the type of problems which must be tackled in the 21st Century, in contrast to the problems of the 20th Century.8

6.3. The Relationship between the Right to Decide and Normative Theories of Secession

Firstly, it must be clear that the right to self-determination and secession are not the same thing. In fact, in terms of their legal definition, they have very little to do with one other, because colonies become independent from their respective colonial powers but do not undergo secession insofar as they never properly formed part of that state. They do not separate

8. This does not mean, however, that 20th Century problems do not persist in the 21st Century; processes of decolonization are still pending, therefore, the defence of the right to decide does not mean the abandonment of the right to self-determination in a legal sense. One does not subsume the other. These are rights that can be concurrent and that, in any case, are not exclusive. Defending the right to decide in Quebec or Catalonia, for example, does not deny the right to self-determination in Western Sahara. The Right to Decide: a Right of the 21st Century 129 from the state. They are born ex-novo so to speak, after leaving behind a colonial relationship.9 Nor is the right to decide equivalent to secession. The right to decide includes the option of external self-determination or secession, but it can be developed in different ways that include internal self-determination, not necessarily leading to the creation of a new state. The exercise of the right to decide could imply institutional redefinition as the result of the democratic will of the demos of a sub-state and the negotiation between this sub-state majority and the state’s majority. In any case, the inclusion of secession as a possible expression of the right to decide (among others) connects the latter to the various theories that analyze the possible justification of secession. These normative theories can be grouped into two main families: theories that justify secession as an answer or remedy to wrongdoing, and those that justify secession as a good to which to aspire, as a corollary of a legitimate right.10Among this second type of theory, the so-called “primary right” theories, we find two different perspectives: the ascriptive and plebiscitary versions. If we briefly examine the criteria or conditions associated with each of these perspectives, we can analyze their possible relationship to the right to decide (and even anticipate some of their possible objections). The theories concerning a just cause or “remedial” cause defend secession as a last resort when a political community is the recipient of grave injustices. Taking the works of Allan Buchanan11 as the most prominent representative of this line of thought, we can categorize these injustices into four groups:12 (i) the violation of basic human rights on a grand scale; (ii) the recent and unjust annexation of territory; (iii) serious and persistent discriminatory redistribution (within a state in a manner which harms one region in particular); and (iv) a state’s violation of the territorial autonomy

9. From a legal perspective, nor can we relate new independent countries in Europe (Slo- venia, Croatia, Latvia, etc.) with secession, as they are formally recognised as the product of the dissolution of a state that they had previously been a part of, with the disintegration of previously communist regimes. 10. This division hints at a classic ethical dilemma between consequentialist theories (the criteria of which imply examining the results of an action) and deontological ethics theories (which examine the coherence with given principles). 11. See Buchanan, “Theories of Secession,” 31-6, and Buchanan, Justice, Legitimacy, and Self- determination. 12. Further motives to justify secession from a restorative or just cause perspective can be noted: for example, Allen Patten claims a failure of recognition (of the sub-state nation) or discrimination as conditions justifying secession. See Patten,Equal Recognition. 130 The Catalan Process of political arrangements, or persistent or unjustified refusal to negotiate some kind of autonomy within that state.13 With regard to theories on the primary right of secession, we can distinguish between those based on the existence of nations and peoples and their inalienable right to be awarded the same state status as others, which are usually described in the academic literature as ascriptive (or nationalistic) theories;14 and those that claim that defending the right to secession is nothing but an extension of the democratic principles that should govern any decision, applied in this case to the design of territorial borders, which are known as plebiscitary (or associative) theories.15 The right to decide may be considered a possible legal interpretation of the normative perspective of the second of these two types of theory. As for the rest, their ties with the right to decide are secondary and, as it has been seen, are of an empirical nature. In practice, a relationship between nation and right to decide might exist, as the socially and politically more developed demands for the right to decide are expected to feature more easily in regions where there is a distinct national conscience, as compared to other regions of the state. Likewise, the right will probably be demanded with greater political insistence by communities suffering problems of accommodation within the host state, especially when their desire for institutional reform is not taken seriously into account. In this

13. The last two conditions do not feature in Buchanan’s original definition of just cause (“Theories of Secession,” 31-61). It is interesting to note that in the preface to the Spanish edition (2014) of his theoretical revision (Buchanan, Justice, Legitimacy, and Self-determination) he reaches the conclusion that, in the case of Catalonia, autonomy should be renegotiated, but without affirming either way its right to secede in case such renegotiation was not possible. It is also curious to note that Buchanan’s list of injustices has some concordance with the arguments expressed by many proponents of Catalan independence. These proponents often mention: (i) that the state violates the individual rights of Catalan citizens; (ii) that Catalonia is the result of an annexation by the Spanish crown in 1714, and that more recently the consequence of the Spanish Civil War was also the conquering of Catalonia (taking into account that the Catalan legitimate democratic authorities unanimously reject the military coup); (iii) that there is a financial structural regime which results in a permanent and serious fiscal deficit that harms Catalonia; and (iv), that the Spanish central government has implemented various measures for recentralization , while it responds negatively to any initiative to renegotiate autonomy, as shown uniquely and singularly by the process of statutory reform. For further application of the arguments of normative theories of secession to the Catalan case, see Guinjoan, et al., Catalunya, un pas endavant. 14. See Margalit, and Raz, “National Self-determination.” 15. See Beran, “A democratic theory of political self-determination.” And also Wellman, A Theory of Secession. The Right to Decide: a Right of the 21st Century 131 sense, the exercise of the right to decide (rather than its foundation) could take on a restorative role.

6.4. The Relationship between the Right to Decide and the Right of Minorities16

There is a clear relationship between the rights of minorities and the right to decide, as the latter will always be demanded by definition by a territorially-based minority. The use of the term “minority” in both cases, however, may lead to some confusion, since it is often used with different nuances. In the international legal context, the term “minority” usually refers to ethnic groups with their own culture (or religion) and language.17 It is, therefore, a more restrictive definition than that used within the context of democratic theory, which does not take the ethno-cultural or indigenous nature into account in its demarcation of the members of the minority demos in relation to the whole state. Moreover, in practice, the demand of the right to decide observed in Western liberal-democratic states is usually related to the defence of inclusive or civic, rather than ethnic, nationalism. It is not expected, nor is it claimed, that individuals who are part of the political community demanding the right to decide must have the same origin or share the same ethnicity. Furthermore, although the rights of indigenous peoples and (ethnic) minorities are demanded by communities with a territorial base that defend their own political will (as is the case with the right to decide), their foundation and ultimate goal are above all to address a problem concerning the survival of a community that wants to maintain its specific features and a degree of internal homogeneity (i.e., the wish to protect itself from linguistic and cultural assimilation).18 Arguably, the basic principle

16. I want to thank Professor Neus Torbisco (Universitat Pompeu Fabra) for her valuable comments for the elaboration of this section (the points of view defended here do not necessarily coincide with hers). 17. Ethnic, religious or linguistic minorities and indigenous peoples. See United Nations, Minority Rights. 18. The classic definition of “minority” was proposed by the Special Rapporteur Franc- esco Capotorti: “A group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members — being nationals of the State — possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, tradi- 132 The Catalan Process is to preserve cultural diversity as a good in itself, just as in the sense of preserving biodiversity. Instead the right to decide, as it has been highlighted, emphasizes the democratic principle. This initial distinction should not distract us from the wide range of similarities. Demanding the right to decide is not oriented towards achieving a privileged agreement, but a democratic one, taking the differences and specific features of a sub-state demos expressed through concrete political demands into account. “We do not want more, we want the same thing”: a notion that could possibly be shared by an advocate of minority rights as well as a defender of the right to decide, who both seek to redefine the institutional design, both driven by the existence of unequal treatment in their respective domains. When the demand for the right to decide is the result of a lack of accommodation, claims from both the right to decide and the right of minorities arise from the existence of unequal treatment; that is to say, from the differences created by the state in dealing with its citizens in relation to the community to which they belong. Alleged tolerance (in a very passive manner) can mask such inequality to be overcome, for, as claimed by Patten19 (2014) or Torbisco,20 tolerating difference is not the same as recognizing equal footing.21 Indeed, together with the objective of collective survival, and the promotion and protection of minority identity, international law on minorities cites the objectives of non-discrimination and equality, as well as effective and meaningful participation.22 Often, the problem of a lack of institutional accommodation within the state cannot be identified as blatant oppression; certainly not in the case of liberal-democratic contexts in which the claim to the right to decide arises. It is not a violation of the classical liberal rights (as noted by the theories of just cause secession), but of unequal treatment justified or legitimized democratically through majority rule (of the state demos). tions, religion or language.” See Capotorti, Study on the Rights of Persons. For a criticism of this definition see Torbisco,Group Rights as Human Rights. 19. Patten, Equal Recognition. 20. Torbisco, Group Rights as Human Rights. 21. The attitude of the Spanish state towards pro-independence political parties may be considered as a case of false tolerance. Actually, such political parties are tolerated (and this tolerance is usually cited as evidence of democracy in Spain) as far as they are very small parties, unable to win elections and implement their independence electoral manifestos. Once they have achieved sufficient democratic support and may have a majority in Parlia- ment, the illegality of their objectives and policies to achieve them is stressed. 22. See United Nations, Minority Rights. The Right to Decide: a Right of the 21st Century 133

We could link it to low-intensity discrimination, a “soft discrimination,” but certainly not with a segregation or “apartheid.” Certainly, these situations occur not only with territorial minorities; religious minorities can also be included, as with those based on sexual orientation, etc. All share the discrimination and resistance against a type of assimilation that implies you can only be equal to the rest of citizens if you reject who you are, i.e. you renounce an identity and specific demands that are not shared by most of the state’s population. The vindication of the rights of the minority, in all these cases, can be linked to an eman- cipative fight to achieve full equality. In the case of the right to decide, the mark of inequality is belonging to a demos (territorially located) that democratically expresses its own will (i.e. different from that of the rest of the state) in terms of fundamental and permanent issues, but that is unable to politically implement it. It must be reemphasized that discrimination is not expressed in cultural or linguistic terms, but in political terms; seen as the confrontation between two democratic wills. By using different terminology and perspectives, we could also relate such demands to the demand for the preservation or creation of an area of positive freedom, in which public options supported by the sub-state political community can be developed, though representing a minority of citizens of the entire state. International law on the rights of minorities proposes solutions exclusively focused on internal self-determination,23 without making reference to or excluding the possibility of external self-determination and the possible subsequent creation of a new state. From this perspective, the problems of territorially-based minorities (i.e. indigenous peoples, etc.) must be resolved within the state, without ever questioning its existing borders. Such an approach is consistent with the pre-eminence of states as exclusive actors and authors of international law.24 The exercise of the right to decide, in contrast, includes the possibility of creating a new state. If, along with the development of the democratic principle, we include the principles of equality and non-discrimination (that is to say, full recognition and equal treatment rather than mere tolerance), as associated with

23. See United Nations, Minority Rights. 24. According to the Declaration on the Rights of Persons Belonging to National or Eth- nic, Religious and Linguistic Minorities adopted by the General Assembly in its resolution 47/135 of December 18, 1992: “Nothing in this Declaration may be interpreted in the sense of permitting any activity contrary to the purposes and principles of the United Nation’s activities, including sovereign equality, territorial integrity and political independence of States.” 134 The Catalan Process the rights of minorities, and we add the principles of autonomy, the right to inviolability and to personal dignity, we gather together what could be considered the principles that form the right to decide. It is evident that the fundamental problem the right to decide has to face does not concern its principles, but the inclusion of secession as a viable means. The main problem is the “sacredness” of the state, and its implicit self-consideration as an end in itself rather than a mere political instrument which may be modified.

6.5. Addendum: Catalonia and the Right to Decide

In Catalonia the right to decide became popular as a result of massive demonstrations organized by the Right to Decide Civic Platform (PDD), made up of hundreds of organizations of different types (cultural, sports, environmental, political, etc.). Demonstrations were followed by a process of non-official consultations on independence organized by the civil society. In 2006, 2007 and 2010 large demonstrations took place in Barcelona that brought together hundreds of thousands of citizens who demanded (literally) the right to decide for the Catalan people. The term “right to decide” was part of the slogans used in these three demonstrations. Like- wise, the practical exercise of such a right was developed by the same civil society that organized four rounds of non-official referendums on independence between 2007 and 2011. About 885,000 citizens (15% of the population over 16 years old) from 551 towns (60% of the total) participated.25 These consultations were organized without any institutional support — in some cases there was even opposition from some political forces — and required the contribution of thousands of volunteers. The demand (and exercise) of the right to decide in Catalonia implies a bottom-up frame change regarding Catalan sovereignty demands. In 2007, for the first time, the then main opposition party (Convergència Democràtica de Catalunya) was the first to include the demand as such in its political agenda. Since 2012, it has become the key idea that drives the so-called “National Transition.” Some milestones can be highlighted in its political development: Catalonia’s declaration of sovereignty and the right to decide (23/01/2013), National covenant for the right to decide

25. Muñoz, and Guinjoan, “Accounting for internal variation in nationalist mobilization,” 44-67. The Right to Decide: a Right of the 21st Century 135

(26/06/2013), and the agreement for the holding of a non-binding referendum politically founded on the right to decide (13/12/2013). The non- binding referendum was finally held on November 9 , 2014 and it had two embedded questions: “Do you want Catalonia to become a state?”; and if so, “do you want it to be an independent state?” The positive answer to the first question did not necessary imply the desire for independence. Defenders of a federal definition of Spain, or a confederal relationship between Spain and Catalonia, had to vote “yes” to the first question and “no” to the second one, as it was claimed during the political campaign. Since then, the National Pact for the Referendum has been created (2017), and a referendum on independence (with a single question) is to be called in September, 2017. The right to decide, as a new political framework, did not appear for the first time in Catalonia. It was first expressed in 2005 by the President of the Basque autonomous community at that time, Juan José Ibarretxe, as a concept linked to a proposal for a new relationship between the Spanish state and the Basque autonomous community. Within this context, however, it did not intend to present any difference from the concept of the right to self-determination.26 It has also appeared in Quebec and Scotland, but with little political and media relevance, taking a secondary role behind other more appealing concepts, such as souveraineté, in Quebec, and the idea of devolution and splitting the present union into two countries and Parliaments under a common Crown, in the case of Scotland (that is, the dissolution of the Union Act).27 In conclusion, it is in Catalonia that the right to decide has taken its most prominent role, with an evident social and political impact. Like- wise, it is in Catalonia that its content has more clearly departed from the traditional and legal view of the right to self-determination.

26. This proposal included the wording of the question for a possible referendum: “Do you agree that Basque political parties, without exclusions, would initiate a negotiation process to reach a Democratic Agreement on the exercise of the right to decide of the Basque people, and to submit this agreement to a referendum before the end of 2010?” 27. At the beginning of the government of the Scottish National Party, the right to decide shyly appeared as, for example, in the document promoted by the Scottish government Choosing Scotland’s Future - A National Conversation (2007), which addressed all the issues associated with an increase in sovereignty. The introductory words by the Prime Minister Alex Salmond stated: “We in the Scottish Government are ambitious for the future of Scotland. We also believe that sovereignty in our country lies with its people. As a sovereign people, the people of Scotland and we alone have the right to decide how we are governed.” 136 The Catalan Process

References

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Patten, Alan. Equal Recognition. The Moral Foundations of Minority Rights. Princeton & Oxford: Princeton University Press, 2014. Torbisco, Neus. Group Rights as Human Rights: a Liberal Approach to Mul- ticulturalism. Dordrecht: Kluwer, 2006. United Nations (UN). Minority Rights: International Standards and Guid- ance for Implementation. New York & Geneva: United Nations Human Rights Office of the High Commissioner, 2010. Wellman, Christopher. A Theory of Secession: The Case for Political Self- determination. Cambridge: Cambridge University Press, 2005.

7 Normative Views in Practice: the Political Discourse on Secession in Catalonia 2003-2015

Ivan Serrano

7.1. Introduction

Cases such as Scotland, Quebec, or Catalonia have prompted a renewed attention to secession in democratic contexts. The literature has focused either on the legitimate causes for secession from a normative perspective or on the explanatory factors that account for secessionist demands.1 However, little attention has been devoted to how normative elements are present in the political narrative of secessionist movements. The aim of this chapter is to bridge this gap by exploring how normative reasons are used to legitimize secessionist demands in the Catalan case. The historical goal of mainstream Catalanism consisted of a horizon of accommodation within Spain combined with a direct participation in the European Union. The development of the Spanish autonomic system and European integration was seen as a multilevel framework where a sufficient level of self-government could be achieved. On the one hand, the institutional design of the so-called State of Autonomies was expected to evolve towards a progressive federalization of Spain, but the evolution of the territorial question has resulted in an unstable equilibrium between demands for self-government and the national project of the state, which has also in-

1. Moore, National self-determination; Sorens, “Cross-sectional determinants of secessionism.” 140 The Catalan Process

cluded recentralizing policies.2 On the other hand, in the Spanish context the idea of Europe was historically seen as a facilitator for the democratization of the country, as a factor of modernization that offered a framework for political stability. For minority nationalisms it was also seen as a process that would erode states’ sovereignty, opening the possibility for a direct participation in European affairs. However, the expectations of a Europe of Regions have been far from fulfilled, reinforcing the perception that the only way to participate in the European arena is to have a state of their own.3 The perceived failure of a sufficient if not optimal accommodation within the multilevel framework of Spain and Europe prompted a relevant change in the institutional goal of Catalanism where independence is progressively seen as the best and only way to achieve a meaningful level of self-government. Accordingly, arguments sustaining self-determination and independence on national and democratic grounds have been reframed and remedial and instrumental arguments have been progressively incorporated into the political discourse. This evolution has been accompanied by the strategic choice of a unilateral approach to secession, given the alleged reluctance of the state to agree to a bilateral process of consultation on the constitutional status of Catalonia.

7.2. Theories of Secession in Practice

The elements shaping the contemporary discourse on independence in Catalonia are closely linked to potential arguments justifying secession in the field of political theory. An important consideration to bear in mind when attempting to explore how these theoretical elements are present in the political realm is the distinction between categories of practice and analysis. The concepts used in the social and political arena are categories of practice that should not be taken for granted as categories of analysis, following the distinction made by Bourdieu and further developed by Bru- baker in the field of nationalism and ethnicity.4 Taking this perspective,

2. Maiz, Caamaño, and Azpitarte, “Hidden Counterpoint of Spanish Federalism,” 63-82; Serrano, “Just a Matter of Identity?,” 523-545. 3. Elias, “Introduction: Whatever Happened to the Europe of the Regions?”; Hepburn, “Rise and Fall of a ‘Europe of the Regions’”, 537-555; Keating, “A Quarter Century,” 629- 635; Nagel, “Transcending the National/asserting the National,” 57-74; Requejo, and Nagel, Federalism Beyond Federations. 4. Bourdieu, Language and Symbolic Power; Brubaker, Ethnicity Without Groups. Normative Views in Practice: the Political Discourse on Secession in Catalonia 2003-2015 141 we can identify elements of comparability such as the self-determination debate in terms of an alleged “right to decide” or the definition of the national community entitled to this right, highlighting the evolution and specificities of the political discourse in a given case of study. From a normative perspective, there is a long-lasting debate on which group of arguments is necessary and sufficient for a unilateral secession to be morally acceptable.5 However, nationalist movements tend to express their demands for self-governments as a combination of these elements. Moreover, the usual configuration of arguments for secession in the theoretical field does not necessarily reflect how it is expressed in the political arena. Demands for self-determination by minority nations are in a primary sense presented in terms of self-recognition as a national community. This first level of legitimacy is related to ascriptive or national arguments, where a key element is to define what a national community is and, to the extent that they are necessary vehicles for individual self- realization, whether or not they are entitled to self-determination.6 Once a given group is self-recognized as a national community, the exercise of self-determination in the context of liberal democracies is related to associative or choice theories of secession. Given that individuals are the best judges of their own interests and explicit consent is necessary for the creation of a political community, the democratic will of a territorially concentrated group of population is a sufficient basis for the creation of a new state, without the need for external causes to justify secession.7 National and democratic arguments share a rationality based on principle, that is, that the legitimacy of secession — and in fact of the creation of political communities — is based on moral reasons without the need to rely on external causes.8 Complementary to reasons of principle, the political discourse of secession also relies on consequential arguments. The emphasis here is placed on the instrumental rationality of secession, in terms of means and ends. Remedialist theories of secession represent a first group of arguments in this category. In the most restrictive version, secession is only acceptable as a last resource in cases of severe violation

5. López, Sanjaume, and Serrano, “Demandes de Noves Estatalitats al Segle XXI,” 13-27. 6. Costa, “On Theories of Secession,” 63-90; Kymlicka, Multicultural Citizenship; Margalit, and Raz, “National Self-Determination,” 439-461. 7. Beran, “Liberal Theory of Secession,” 21-31; Wellman, “Defence of Secession and Political Self-Determination,” 142-171. 8. Beran, “Democratic Theory of Political Self-Determination,” 32-59. 142 The Catalan Process

of group rights or occupation of a formerly independent territory.9 Other factors such as a failure of recognition, violation of self-government arrangements or a situation of permanent minority were later introduced into remedialist debates, but from our perspective they all share the instrumentalist approach to secession, as they are thought of as a means of solving an unfair situation.10 Lastly, from an analytical perspective a fourth group of arguments can be added. In minimally just states, where the existence of severe reasons justifying secession is less likely to occur, contemporary minority nationalisms have progressively incorporated an instrumentalist group of arguments based on the material effects of independence in terms of economic prosperity, social well-being, and political participation.11 Catalan parties’ manifestos and parliamentary resolutions for the period 2003-2015 reflect how these groups of arguments are combined in a dynamic rather than static way. In particular, the analysis shows a “remedial shift” from the traditional approach of self-government demands within the state recognizing the national distinctiveness of Catalonia, towards a pro-independence approach that emphasizes consequential arguments.

7.3. The Statutory Reform: The Last Expression of Traditional Catalanism

After the regional and national elections of 2003 and 2004, negotiations started in the Catalan Parliament for a new statute. This period is characterized by a horizon of self-government that still follows the traditional demands for a special arrangement within the State and to participate in the European Union as a distinct region.12 The paradigmatic example of this historical current is represented by Convergència i Unió (CiU), the coalition formed by the liberal Convergència Democràtica de Catalunya and the Christian-democrats of Unió Democràtica de Catalunya, characterized by a moderate approach both in the ideological and the national

9. Buchanan, “Toward a Theory of Secession,” 322-342. 10. Patten, “Democratic Secession,” 558-586; Seymour, “Secession as a Remedial Right1,” 395-423. 11. Dalle Mulle, “New Trends in Justifications for National Self-Determination,” 211-229. 12. Dowling, “Autonomistes, Catalanistes and Independentistes,” 185-200; Giordano, and Roller, “Catalonia and the ‘Idea of Europe’,” 99-113. Normative Views in Practice: the Political Discourse on Secession in Catalonia 2003-2015 143

dimension.13 The coalition offered parliamentary support both to Socialist and conservative Spanish governments in exchange for advancing self- government developing the potentiality of the statute of 1979 without the need to reform it.14 The coalition sustained this traditional approach in the 2003 elections even though it finally adhered to the proposal for a new statute. According to the party’s platform, the new statute was an opportunity for a better recognition of Catalonia as a nation, to achieve a higher level of self-government and to renew relations with Spain, receiving fairer political and economic treatment from the state.15 This “renewed relationship” with Spain would also include recognition at the external level, with an autonomous foreign policy and presence in international organizations such as the UNESCO, direct representation in the Council of Ministers of the EU in the areas under the regional government powers, or the recognition of Catalan as an official language.16 Direct participation in the EU was seen as a scenario for self-government at its fullest, but also reflected a particular vision of the European project, which should be “more respectful to the plurality of peoples that configure it.” In the case of Esquerra Republicana de Catalunya, the party officially supported the independence of the “Catalan Countries” after the incorporation in 1989 of a new generation of politicians coming from pro-independence movements and civil society activists.17 In 1993 a new “Ideological Declaration” was approved, changing the generic references to self-government to pro- independence positions. However, the party did not immediately run to regional or national elections with this political platform. While officially pro-independence, the party also strengthened a left-wing agenda and the possibility for an acceptable accommodation within a federal Spain. In the party’s manifesto for 2003 there were no explicit references to the idea of independence and the agenda was rather focused on the development of policies of recognition as a “stateless nation”18 developing a strategy of international projection within the wider process of European integration.19

13. Newman, “Ideological Trends among Ethnoregional Parties,” 28-60. 14. Guibernau, Catalan Nationalism, 124. 15. CiU, ‘Tu Ets Primer,’ 102. 16. Ibidem, 97. 17. Argelaguet, “Esquerra Republicana de Catalunya”; Vilaregut, “Memòria i Emergència en l’Independentisme Català.” 18. In the Catalan context, references to Catalonia’s necessity to have her ‘own State’ are often found in the political discourse. 19. ERC, Un País Actiu i Equilibrat. 144 The Catalan Process

The coalition of Iniciativa per Catalunya-Verds and Esquerra Unida i Alternativa (ICV-EUiA), is formed by parties from a Marxist tradition with different degrees of modernization towards post-materialist and green positions combined within the Catalanist tradition.20 The party’s position was mainly focused on the possibilities for social transformation that a leftist majority in the parliament would open.21 Regarding the possibility for a new statute of autonomy, the autonomic system was perceived as a good step towards self-government but yet far from fulfilling the party’s self-government goal, which was a stable accommodation of Catalonia within a plurinational and federal Spain that would eventually allow for a direct participation in a federal Europe.22 Nonetheless, the bid for a federal Spain in a federal Europe was based on Catalonia’s right to self-determination — either external or internal — an expression of her “sovereignty as a nation.”23 This common approach, which at the time also included the Social- ists’ Party of Catalonia (PSC), resulted in the declaration of “Catalonia is a nation,” as included in Article 1.1 of the proposal approved by the Catalan Parliament in 2005. This statement can be seen as a precedent of recognizing Catalonia as a sovereign demos entitled to a unilateral right of self-determination. By 2006 three events would dramatically define the evolution of the years to come. First there was the approval of the new statute by referendum in Catalonia after the controversial negotiation between the Catalan and the Spanish delegation in Madrid. Second, after ERC did not support the final version of the statute, snap elections were called by the leading party of the coalition in government, the PSC. Third, by 2006 a process of grass-roots mobilizations with a sovereigntist agenda had already started, leading to a long series of massive demonstrations that would strongly influence the political agenda.24 It was the moment when the idea of a “right to decide” emerged in the public sphere within the structure of opportunity resulting from institutional developments such as the controversial process of statutory reform, but also from a policy crisis that was linked to complaints of under-investment by the central

20. Guibernau, Catalan Nationalism, 96. 21. ICV-EUiA, ICV - Programa Eleccions Autonòmiques 2003, 5. 22. Ibidem, 227. 23. Ibidem, 202. 24. Muñoz, and Guinjoan, “Accounting for Internal Variation in Nationalist Mobilization,” 44-67. Normative Views in Practice: the Political Discourse on Secession in Catalonia 2003-2015 145

government.25 After the first waves of successful social mobilization, the concept would be incorporated into the repertoire of political parties, even though its ambiguity allowed for a wide range of interpretations before it was consolidated as the local expression of the idea of self-determination. In fact, the first references to the “right to decide” in the parties’ discourses are not associated with a pro-independence agenda. Political parties rather emphasized the need to fully develop the potential of the new statute, including ERC, which had opposed the final version and cam- paigned for a “No” in the referendum. The case of the electoral manifesto of CiU for the 2006 elections is revealing in this sense. The idea of a “right to decide” is not mentioned yet and the emphasis is rather on policy issues that could be developed under the new statute. Regarding international projection, the reference is again to seek “cultural and political recognition as a nation within Europe.”26 A similar approach is shared by ICV, which had also supported the final version of the new statute, offering new possibilities for self-government in areas such as welfare or sustainability.27 Together with the new arrangement within Spain, the European Union is still seen as a horizon that opens alternatives to independence as long as the traditional conception of statehood is eroded. However, it is also stated that nation-states retain their role as the key actors of the integration process, and in this context Catalonia does not renounce self-determination as an expression of sovereignty to decide about its political status.28 In the case of ERC, the final agreement approved in referendum was considered a “mistake,” but emphasis was placed on developing its full potential.29 However, this runs in parallel with a more explicit sovereigntist agenda, aimed at Catalonia’s “right to decide” freely about its political future and to achieve “full sovereignty,” as the states remain the key actors in international relations, the only bodies that would allow participation in “global governance.”30 This is particularly important, as it shows a turning point in perceptions of European integration being increasingly perceived as a matter of states, where the participation of regions is not a viable option for minority nations having a voice of their own. While there is

25. Vilaregut, “Memòria i Emergència en l’Independentisme Català,” 141. 26. CiU, Programa de Govern 2006-2010, 143. 27. ICV-EUiA, ICV - Programa Eleccions Autonòmiques 2006, 4. 28. Ibidem, 287. 29. ERC, Programa Electoral 2006, 4. 30. Ibidem, 65. 146 The Catalan Process criticism of the lack of democratic legitimacy in European decisions and the emergence of a neoliberal paradigm, the traditional positive attitude towards Europe does not change as much as the perception that the best way to participate in the European process is not pushing for a Europe of Regions but rather to become a full-fledged member.31

7.4. The Failed Expectations of Autonomy within Spain

The next electoral cycle was defined by the economic crisis and the crisis of the leftist coalition in government since 2003. However, the long- awaited decision of the Constitutional Court about the new Statute of Autonomy would dramatically alter the political agenda in Catalonia. The ruling of the Constitutional Court prompted a massive popular mobilization of protest monopolizing the political agenda, and early elections were called for November 25th. The so-called “right to decide” was interpreted as a democratic response to the failure of accommodation within the state. This conception went further from the initial incorporation of the idea that Catalonia had the right to decide on any relevant matter that its citizens may decide, as established in a political conference delivered by the coalition’s candidate, Artur Mas, in 2007.32As the Court’s decision would show that the constitutional framework of 1978 had “reached its limit,” the electoral manifesto of CiU states that Catalan self-government must be the result of “the democratic and inalienable right of every nation to decide its own future.”33 However, the coalition did not yet transform this claim into a pro-independence agenda, but the application of the “right to decide” was linked to the proposal of a new fiscal status within Spain that would result in the “financial sovereignty” of Catalonia.34 The horizon of self-government also included other demands defined in the first proposal for a new statute approved by the Catalan parliament, such as an autonomous infrastructure policy, the possibility of organizing referendums, bilateral relations with the state, or the clarification of powers with full autonomy.35 The question was whether the level of self-government that

31. Ibidem, 66. 32. Mas, Per Una Casa Gran. 33. CiU, Eleccions Nacionals 2010, 6. 34. Ibidem, 82. 35. Ibidem, 82. Normative Views in Practice: the Political Discourse on Secession in Catalonia 2003-2015 147 was necessary according to the party’s vision could be achieved within the existing state. The “right to decide” plays a key role in legitimating the political discourse, as the impossibility of reaching a satisfactory level of self-government would potentially allow for a new political strategy based on the recognition of Catalonia as a sovereign autonomous demos. That is, this approach changes the focus from the contents of autonomy to the legitimacy of self-determination as the best institutional way to achieve a satisfactory level of self-government, assuming that sovereignty is not conceived of in classical terms, but rather through direct participation in interdependence networks either at the European or the Spanish level. In the case of ICV-EUiA, the new statute is still perceived as a positive step granting more self-government, despite the Constitutional Court’s decision, and, on the other hand, the coalition defended the results of the incumbent government and the need to address the impact of the economic crisis with social policies.36 Regarding the new political scenario, the coalition’s proposal consisted of a coordinated plan to restore the powers overruled by the Court’s decision, and to promote a constitutional reform that would transform Spain into a plurinational federation.37 The idea of a “right to decide” is also incorporated into political discourse as an ultimate expression of Catalonia’s right to self-determination, including the right to define its political status, including both the possibility for a unilateral action as a last resort in case the state rejected the possibility of a plurinational and federal reform. In this scenario, the coalition proposal included a referendum to choose between the status quo, a state within a federal Spain, or independence.38 Despite criticisms of the “policies of austerity” promoted by European institutions, the European community arena remains the scenario where nations such as Catalonia should have a voice of their own, becoming “subjects of political and institutional action.”39 In the case of ERC, the party introduced new conceptual elements that translated the generic pro-independence position into a specific program. The manifesto introduces unilateral plans such as the possibility of declaring independence if the party obtained a sufficient majority of the Catalan parliament, but also seeking the necessary post-electoral agreements to

36. ICV-EUiA, ICV - Esquerra, Ecologia i Llibertat 2010, 2. 37. Ibidem, 221. 38. Ibidem, 221. 39. Ibidem, 223. 148 The Catalan Process

exercise the “right to decide” by means of a referendum on independence.40 With an explicit pro-independence platform, the international projection of the Catalan case becomes a political priority, in order to get the “necessary supports” at the international level, with the final aim of becoming an independent state within the “framework of the European Union.”

7.5. A Remedial Shift towards Self-Determination

However, after the victory of CiU, the main proposal of the new elected government was to negotiate a fiscal agreement with the central government, similar to the fiscal regime of the Basque Country and Navarre. The proposal was approved by the Catalan parliament two years later, including CiU, ERC and ICV, but as expected, the central government refused to introduce a bilateral component in the fiscal arrangements of the Autonomous Communities. This again prompted a social and political mobilization about the possibility of independence. After a new cycle of social mobilizations that culminated in a massive demonstration on September 11, 2012, early elections were called again, once the Par- liament had approved a resolution establishing the priority of holding a referendum for Catalans to decide upon “their collective future freely and democratically.”41 According to the nationalist narrative, the Spanish government’s refusal to negotiate a bilateral process showed the impossibility of finding satisfactory accommodation within Spain, especially after an agenda of recentralization policies on key areas such as education or the failure to make the public investment included in the Statute of 2006. Even though the proposal suggested reaching an agreement with the central government for the referendum to be held under the existing constitutional framework, the situation could eventually legitimate unilateral decisions by the Catalan parliament if the state’s negative position persisted.42 The official statement of the Parliament underlines the failure of the historical goal of Catalanism, that is, the accommodation of Catalonia within a plurinational Spain, leaving statehood within Europe as the only remaining alternative.

40. ERC, Programa Electoral 2010, 9. 41. Catalan Parliament, Resolution 742/IX. 42. Ibidem. Normative Views in Practice: the Political Discourse on Secession in Catalonia 2003-2015 149

This new scenario was later conceptualized as the “national transition” by the governing coalition in the electoral manifesto for the new elections, a process where key “structures of state” were to be strengthened or built, aiming at the creation of “a state of its own within Europe.” This national transition is presented more as a process of state-building than an event, a process which is legitimated by the unlikelihood of a viable accommodation within Spain, even though the final institutionalization of this process would not exclude the possibility of some arrangement with the state.43 Accordingly, the emphasis remains on the exercise of the “right to decide” in a broad sense, understood as the expression of the democratic will of the “Catalan people” to decide upon their political future, but expressing a will to negotiate with “the Spanish State, the European Union and the international community.”44 For ICV-EUiA, the situation of 2012 reflected the failure of a negotiated agreement with the state to advance towards the federalization of Spain and the recognition of its national diversity. In this new political scenario, the political discourse explicitly included unilateral and remedialist elements. On the one hand, the “right to decide” legitimates the exercise of self-determination to achieve the goal of “full sovereignty,” as expressed by a massive cycle of social mobilizations, and on the other hand, this is the only alternative left after the ruling of the Constitutional Court of 2010 and the unwillingness of national parties to make a more flexible interpretation of the Spanish Constitution.45 This position aims to appeal to both pro-independence and pro-federalism supporters, not excluding the possibility of an agreement with the state which would include a referendum for Catalan society to express its preferences. Under this approach, the so-called “right to decide” is a strategy either to force the central government to negotiate or to confirm that no agreement is possible.46 In any case, the referendum should be called and defined following international standards and negotiating the terms with Spain and the European Union.47 The references to the European Union are combined with a critical stance against fiscal austerity measures, which have failed to overcome the economic crisis.48

43. CiU, Programa Electoral 2012, 15. 44. Ibidem, 13. 45. ICV-EUiA, ICV - Programa Electoral Autonòmiques 2012, 130. 46. Ibidem, 132. 47. Ibidem, 133. 48. Ibidem, 149. 150 The Catalan Process

The idea of independence is thoroughly dealt with in the ERC’s electoral manifesto. It is the party’s key goal, also sustained in an alleged “right to decide,” a concept that translates the right to self-determination into political language emphasizing the democratic basis of recognition as a demos.49 The main goal for achieving independence is the organization of a referendum, but a unilateral declaration of independence is not excluded if, as expected, the state refused to enter into negotiations.50 The discourse on independence increasingly features a remedialist approach, that is, independence is presented as a last resort because the state not only rejects the possibility of further autonomy, but also does not fulfil the existing arrangements of self-government. Europe and the international community is seen in this context as an arena where the Catalan bid for the democratic right to self-determination can be defended, and on the other hand, as a space where an independent Catalonia would be fully integrated by the doctrine of “internal enlargement.”51 The 2012 elections also witnessed the emergence of a new political party, the CUP (Candidatura d’Unitat Popular), a grass-roots coalition of far-left, pro- independence and anti-capitalist groups that obtained three representatives. The coalition ran in the election with a unilateral approach to secession and a discourse denouncing the European Union as not representing working classes, but rather capitalist interests.52

7.6. Democratic and Welfare Arguments for Secession

After the elections, the new Parliament approved a number of resolutions which eventually resulted in a non-binding consultation held on November 9, 2014 and a legislative initiative to negotiate an agreement with the central government to entrench it within the existing constitutional framework. The rhetoric used in the parliamentary resolutions reflects the process of discursive convergence that had been emerging in previous years. The main resolution in this new period is the Declaration of Sovereignty of January 25th 2013, which was approved by CiU, ERC, ICV and partially by CUP, claiming that after the failure of accommo-

49. ERC, Un Nou País, 12. 50. Ibidem, 8. 51. ERC, Un Nou País, 10. 52. CUP, La CUP Al Parlament. Normative Views in Practice: the Political Discourse on Secession in Catalonia 2003-2015 151 dation within the State and the massive demonstrations of civil society, the parliament has received the mandate of holding a referendum for Catalan society to be consulted on its political future. According to this rhetoric, the goal of independence reflects the Catalan people’s will to be recognized as a collective identity, but it is also an instrument for “more progress, welfare and equal opportunities for all its citizens.”53 In Decem- ber, 2013, the four parties agreed on a date and a referendum question scheduled for November 9, 2014. Moreover, in January, 2014, the Catalan parliament agreed to send a proposal to the Spanish Congress to hold an agreed-upon referendum in the Spanish Congress, a proposal that was rejected in March by the two main Spanish parties, the People’s Party and the Spanish Socialist Worker’s Party. The following months became a controversial period, given the state’s opposition to allowing a unilateral, full-fledged referendum. Eventually, the consultation was organized as a non-binding informal process, with a twofold question asking “Do you want Catalonia to become a state?” with a follow-up: “In case of an affirmative response, do you want this state to be independent?” This sort of referendum wording would raise some concerns of clarity given the existing international recommendations on the matter, but it reflected the widest consensus possible among parties supporting the possibility of a unilateral consultation, that is, the recognition of Catalonia as a demos and the inherent right to self-determination, despite ideological differences — from radical left to liberal and conservative positions — and constitutional preferences — from outright independence to the possibility of an agreement within Spain.54 Given the political gridlock between the Catalan and the Spanish government, new regional elections were called for September, 2015. This election was considered by pro-independence parties as a pseudo- referendum, given the difficulties in organizing a standard referendum agreed upon by the state, which also reinforced a shift from a bilateral to a unilateral approach. This “plebiscitarian” character was accompanied by a reconfiguration of the political coalitions that participated in the election. On the one hand, a wide coalition was agreed on between

53. Catalan Parliament, Resolution 17/X. 54. Regarding some international references on referendums, see for instance the well- known opinion of the Supreme Court of Canada about the necessity of a “clear question” (Supreme Court of Canada 1998), the recommendations of the British Electoral Commis- sion on the Scottish referendum (Commission 2013), or the Code of Good Practices in Referendums of the Venice Commission (Venice Commission 2009). 152 The Catalan Process

CDC –which had split from its historical partner UDC in the coalition CiU– and ERC which included a number of independent candidates from social movements and former PSC and ICV members. The coalition was labelled Junts pel Sí (“Together for Yes”). On the other hand, the CUP widened its electoral space by incorporating a variety of social movements from the radical left. The electoral manifesto of Junts pel Sí can be seen as the culmination of the rhetorical shift towards remedial and instrumental arguments for secession. The introductory part of the manifesto emphasized arguments for secession related to the prospects of a more “flourishing” and “fairer” society, which underpinned the necessity of exercising the right to self-determination by democratic means given that Catalonia “belongs to a hostile State.”55 The unilateral nature of the election was also a core element for the CUP, breaking away from the Spanish State, but also from the austerity policies “dictated by the European Union and the Troika.”56 On the other hand, the instrumental dimension of independence is well reflected in the fact that 5 out of 9 policy measures to be implemented referred to welfare, economic, and environmental policies.57 ICV also merged into a new electoral coalition formed by Podemos, a national political party created in 2014, and a Barcelona-based movement that had won the local elections of May, 2015. This prompted a change in the political discourse of independence, keeping the emphasis on the so-called “right to decide” which was now also linked to a “constituent process” at the Spanish level. Thus, the unilateral component was relaxed, as the main strategy was to reach an agreement with the central government, if new majorities were to have a determinant role in the Spanish Congress.58 The new elected parliament passed a resolution on November 9 that set the priorities for the new government to be agreed upon between Junts pel Sí and CUP, given the parliamentary results of the election. The document represented a mandate for Catalan institutions to implement a number of legislative measures that had been overturned by the Constitutional Court, mostly referring to welfare and social policies in areas such as health, housing, abortion, or energy poverty.

55. Junts pel Sí, “Programa electoral 2015,” 10. 56. CUP-Crida Constituent, “Programa 2015,” 3. 57. Ibidem, 5. 58. En Comú Podem, “Programa Electoral 2015,” 73-75. Normative Views in Practice: the Political Discourse on Secession in Catalonia 2003-2015 153

7.7. Conclusion

The aim of this chapter was to analyze the presence of normative theories of secession in the political discourse of pro-independence movements, focusing on the Catalan case. Contrary to theoretical discussions in the academic field, political actors do not rely on a single group of arguments to legitimize their claims, but rather on a contextual combination of these elements. Moreover, these particular configurations not only vary across cases but also evolve over time. The evolution of nationalist discourse in Catalonia has three main features. First, a reconceptualization of primary factors related to what I have labelled rationality of principle, that is, the modernization of national and democratic arguments for secession, reflected in the emergence of the so-called “right to decide.” Sec- ond, the growing importance of remedial and instrumental arguments, which have progressively gained preeminence in the political discourse of pro-independence movements. This is not to say that elements such as self-recognition as a nation or the right to exercise self-determination by democratic means disappear. These primary elements are rather the necessary base from which nationalist movements can expand their discourse in democratic contexts. Third, the preeminence of these elements linked to an instrumental rationality is accompanied by a unilateral approach to secession that departs from traditional demands for self-government and self-determination by means of a bilateral and negotiated agreement with the state. Exploring the analytical possibilities of arguments discussed by normative theories of secession, the basic feature of contemporary Catalan nationalist discourse could be summarized as a shift from cultural and national preservation arguments to the legitimacy of a unilateral definition of the institutional status of Catalonia, articulated as a response to the perception of failure of accommodation within the state and Europe and as a rational means of improving welfare policies and economic per- formance. 154 The Catalan Process

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8 Secession, Democracy and Power: the Catalan Case

Hèctor López Bofill

8.1. Introduction

Secession by means of a democratic procedure has never taken place in history. This is the basic statement behind my approach. In any case, before going further, I will define what I understand by a “democratic procedure.” In my view, “democratic procedure” refers to a context in which, (1) there is no coercion whatsoever (thus, there is no violence in the stages prior to or following the secession, neither within the political body of access to statehood, nor within the state from which the new state has seceded); (2) the decision to found a new state is grounded in citizenship participation, whether through a referendum or through parliamentarian elections; and (3) secession is adopted according to the previous legal and constitutional framework within a background of institutional stability. According to the conditions stated above, there have been just two examples of secessionist movements developed under a “democratic procedure”: those regarding Quebec through the 1980 and 1995 referendums on sovereignty from Canada, and the 2014 Scottish referendum on independence from the United Kingdom. But secessionism failed in both examples. Thus, Quebec and Scotland confirm the validity of the assertion “secession through a democratic procedure has never taken place.” It could be suggested that the reasons explaining the failure of these two experiences were precisely thatthe Quebecois and the Scottish demands 160 The Catalan Process were developed within the context of two advanced democracies. As Stephane Dion remarked in a famous article on the Quebecois question,1 the politics of recognition of national pluralism promoted through democratic procedures make it difficult for a pro-independence majority to be consolidated. The Scottish experience through the 2014 referendum on independence and the defeat of the “Yes” could confirm such an idea, since the mere negotiation and holding of a referendum on independence agreed upon with the central government according to the state’s constitutional framework is, in itself, a form of democratically expressed recognition. Comparing the Quebecois and the Scottish examples with the Catalan case allows me to stress some features regarding the relationship between secession and democracy: precisely because Spain has not developed any politics of recognition towards its minority nations, and the different Spanish governments have successively blocked any attempt to express the issue of secession through democratic channels, the Catalan pro-independence majority has been reinforced: the stronger Spanish opposition to allowing the will of the Catalan people to be expressed regarding the issue of secession, the greater the support of independence among the Catalans. Thus, as the Spanish constitutional system renders it almost impossible to hold a referendum on secession, clear pro-independence majorities can only be expressed within the context of elections to the Catalan Parlia- ment. However, parliamentary elections are not an ideal context because, basically, despite the electoral centrality that the debate on secession could take during the campaign, factors such as the emergence of other electoral issues and the political margin of individual candidates in shaping the debate (as there is no imperative mandate), can end up distorting the citizens’ determination for independence. This is exactly the situation that took place in September, 2015, after the Catalan parliamentary elections. Yet, although the political parties that had presented an explicit pro-independence manifesto altogether obtained the overall majority of seats, it turned out to be impossible to clarify the exact proportion of pro-independence voters as one parliamentary party, Catalunya Sí Que es Pot (with a 9% share of vote) had not clearly defined the party position on independence. At the same time, if the interpretation of the Spanish Constitutional framework by the Spanish central officials does not concede any margin

1. See Dion, “Why is Secession Difficult in Well-Established Democracies?,” 269-283. Secession, Democracy and Power: theC atalan Case 161 in acknowledging the will of the Catalan people (for instance, agreeing to a referendum on independence), then the only way out would be that of adopting an unilateral decision on sovereignty promoted by the Catalan people and their representatives involving, therefore, the breakup of the Spanish Constitutional order. Thus, the case of the Catalan demand for independence, even placed within a scenario generally characterized by democracy and the rule of law (the Spanish state in Western Europe that belongs to the European Union and the Council of Europe) is likely to be lacking some of the premises associated with the “democratic procedure.” In other words, and taking into account the fact that the Catalan dispute is still pending resolution, the shaping of the Catalan State, if the Catalan demand succeeds, will not be an example of a secession according to a “democratic procedure.” Rather, Catalan secession, as an outcome of a pro-independence mobilized majority, will be achieved by means of the democratic flaws in the procedure towards independence. Examples of these losses of democratic legitimacy regarding the attitude of the Spanish authorities include their persistent refusal to negotiate any referendum on independence and any coactive measures adopted by Spanish government in order to undermine the secessionist claim (such as, for instance, the conviction of the former Catalan President, Artur Mas, accused of civil disobedience over the consultation vote that was held on November 9, 2014. However, if the Catalan pro-independence majority can only be expressed through the breakup of the Spanish Constitu- tional framework, then the Catalan case, even vested with democratic legitimacy (as currently happens since the Catalan Parliament elections held on September 27, 2015, would not fulfil the condition of adopting a decision on sovereignty “according to the previous legal and constitutional framework.”

8.2. Democracy and Secession in the Past

After tracing my basic idea on secession and democracy and advancing some considerations on the Catalan case, I shall mention some other examples that are sometimes invoked in order to refute the fact that coercion has always been involved in separatist procedures. I will try to demonstrate that such cases do not exactly fit with examples of secessions following “democratic procedures.” 162 The Catalan Process

The case that is closest, however, to meeting the aforementioned premises is the separation of Norway from Sweden in 1905.2 Certainly, Norwegian independence from Sweden was not violent, and it was adopted with the participation of the citizenship through a referendum and the decision over full Norwegian sovereignty was adopted according to the previous legal and constitutional framework within a background of institutional stability. However, the union between Norway and Sweden did not constitute a State in the modern sense of the word but a personal union of the separate kingdoms of Norway and Sweden; that is, a sort of confederation that shared the monarchy as, aside from foreign policy, almost the only common institution, while both states kept their separate constitutions, laws, legislatures, administration, state churches, armed forces, and currencies. The 1905 Norwegian example, therefore, is too distant from serving as an example of a “democratic procedure” regarding current independence claims, since Norway was already a state with sovereign attributes during its union with Sweden, within a context in which the modern constitutional state had not been fully developed. We cannot consider that the secessions triggered in Eastern Europe after the fall of the Berlin wall during the 1990’s and the first decade of the 21st century were adopted under a “democratic procedure” either. Aside from the high levels of violence that occurred in some territories, such as some republics of the former Yugoslavia, and even the violent incidents surrounding certain secessions from the Soviet Union, the new political configuration of Eastern Europe was certainly the outcome of the collapse of the Socialist regimes. Thus, even without coercion, as for the case of the divorce between the Czech and the Slovakia Republics, it seems inap- propriate to refer to such cases as secessions developed “according to the previous legal and constitutional framework in a background of institutional stability.” The passage from a Socialist model to a liberal democracy was itself a break with the previous political framework. In the case of the Czech and Slovakian separation, it should also be observed that, first, it was not exactly a secession of a part of a territory from the rest of the country, but the dissolution of a federation made up of two entities that, in turn, became two independent states; and second, the divorce between the Czech Republic and Slovakia did not meet the second premise that we highlighted, according to which the decision regarding the founding of a

2. On the case of the separation of Norway and Sweden see Young, “How Do Peaceful Secessions Happen?” Secession, Democracy and Power: theC atalan Case 163 new state must be grounded in citizenship participation, whether through a referendum or through parliamentarian elections. The separation of the two republics was not adopted through referendum, even though the constitutional regulation in effect provided that a referendum should be required to decide the partition.3 The Federal Parliament passed the constitutional provisions on separation after being elected in 1990, without any debate on the constitution of either of the two republics. This was because during the elections, the dissolution of the Federation was not an issue.4 Furthermore, it has been asserted that the decision on the partition was made by the political elites of both countries against the opinion of the majority of both populations.5 In the case of some republics which became independent from the USSR, especially the Baltic republics, it has been highlighted that their final recognition was a matter of negotiation and acceptance by the successor of the Soviet Union (USSR), that is, Russia. This made it possible for these new republics to access the United Nations, since Russia, as the successor of the USSR holds the condition of permanent member of the Security Council and did not use its power of veto against Lithuania, Latvia or Estonia. Nonetheless, the secessionist twist of the aforementioned republics took place between 1990 and 1991, within the context of a rupture with the Soviet system. The importance of this context is highlighted by the fact that all three republics held independence referenda between February and March of 1991 (illegal referenda, according to the Soviet authorities, although article 72 of the Constitution of the Soviet Union formally recognized the right of “any republic in the Union (…) to freely secede from the USSR.”) The truth is that, in some episodes of the process that led the Baltic Republics to independence, there was violence and turmoil, including the loss of human life; for example, during the so-called “Bloody Sunday” in Latvia on January 13, 1991, when Russian parachute forces killed fourteen demonstrators. Another example is set by the fact that the three republics consolidated their independence after the coup d’état against the Soviet Union that in August 1991 was led by

3. See Preamble of the 1968 Constitutional Act on the Czechoslovakia Federal Constitu- tion, amended in 1990. On the Czechoslovak Constitutional framework regarding self- determination and secession, see Bakke, “The principle of national self-determination in Czechoslovakia,” 173-198. 4. On the breakup of Czechoslovakia see Cox, and Frankland, “Federal State and the Breakup of Czechoslovakia,” 71-88; Stein, Czecho/Slovakia; Young, Break-up of Czechoslovakia. 5. See Massa, “Secession by Mutual Assent,” 183. 164 The Catalan Process a group of military and civil servants who were against the democratic changes introduced by the General Secretary of the Communist Party and Executive President of the Union, Mikhail Gorbachev. The coup hastened the collapse and disintegration of the Soviet Union which was formally a reality through the Minsk agreements of December 1991 between Russia, Byelorussia and Ukraine, and which led to the creation of the Community of Independent States. Neither is it pertinent to mention the examples of Montenegro and Ko- sovo as cases of secessions adopted by means of democratic methods, even though, in the final stages of their respective procedures of independence, full sovereignty was clearly the will of their peoples (through referendum in Montenegro and through parliamentarian elections on the issue of independence in Kosovo). Leaving aside the fact that both independences, even during the first decade of the 21st century, were achieved during the death throes of the collapse of Yugoslavia and the Socialist regimes in Eastern Europe, with regard to Montenegro, it must be remarked that this example, similar to the case of the Czechs and Slovaks, was a partition of a confederation (the Union with Serbia established in 2003 and composed of just two entities: Serbia and Montenegro) and not exactly a secession of a part of a territory from a bigger political entity. Regarding Kosovo, one cannot fail to remember the outbreak in 1999 of an extremely violent conflict that preceded the independence claim and required NATO military intervention.6 After the war, an international protectorate was established based on which the new state was erected in 2008. The 2008 Kosovo independence declaration followed one of the rare examples of parliamentarian elections in which pro-independence parties concurred on a political discussion with independence as the main issue of the electoral process. This feature conferred legitimacy, from a democratic point of view, to the parliamentary declaration, even though no referendum was held.7 However, the bloody background of fighting and ethnic cleansing definitely prevents Kosovo from being considered as a case of secession carried out through a “democratic procedure.”

6. On the 1999 military conflict in Kosovo see Schnabel and Thakur Ramesh (editors), Kosovo and the Challenge of Humanitarian Intervention. 7. On the 2008 Kosovo declaration of independence and the subsequent International Court of Justice Advisory Opinion of July 22, 2010 on the accordance of Kosovo’s declaration with international law, see Urrutia, “Territorial integrity and self-determination,” 107-140. Secession, Democracy and Power: theC atalan Case 165

The fact that the Spanish state belongs to an international organization such as the European Union (EU) has raised a debate, especially in Catalonia, on whether the secession of a territory that is part of a EU state, but which holds the clear will of remaining within the EU, should be seen as a case of internal secession (that is, when a territory secedes from a member belonging to a federation but remaining within the federation, such as the separation of the Jura Canton from the Berna Canton in the Helvetic Federation),or as an external secession regulated by the general norms of public international law. Thus, one could argue that the Cata- lan case has to be understood in terms of what MacCormick has called a “post-sovereign” space, rather than in terms of classical sovereignty, when the states, subjects of international public law, keep their original power, which is supreme from an internal point of view and independent from an external point of view. Nonetheless, the imminent exit of the United Kingdom from the European Union after the referendum of June 23, 2016 has shown two aspects/points: first, the EU has not led to any definitive overcoming of the classical paradigm on sovereignty, since states such as the United Kingdom keep their power of original decision and can leave the EU by making use of the constitutional norms (article 50 of the Treaty of the European Union in its writing of the Lisbon Treaty); second, the power to leave the EU relies on those entities which are agents of international public law, that is, on those territories which are sovereign states and hold the power of ultimate decision on forming part of an international organization. In other words, without the previous acceptance of the condition of sovereignty in its classic sense, today, despite some theoretical proposals questioning that sense, such as MacCormick’s, one cannot become an agent either through public international law or through the peculiar international public law of integration originating from the treaties of the European Union. Moreover, despite the singularities due to it being an act carried out by a sovereign state, the United Kingdom’s process of leaving the EU has not taken place in circumstances where there was no violence at all either. Not only was the debate on abandoning the EU strongly affected by the crisis of refugees arriving in Europe from countries of the Near East or the threat of terrorism from ISIS and Al-Qaida, but also, on June 16, 2016 Jo Cox, a Labour MP, defending the idea that the UK should remain in the EU, was killed by a man allegedly with several connections to ultra-right movements in favour of Brexit. It was clearly a political killing. Therefore, not even in the particular context of secession by a sovereign state from an international organization 166 The Catalan Process of integration, by means of unambiguous democratic rules and following the required constitutional procedure, was the process devoid of direct or subjective (to put it in Zizek’s terms)8 violence, and we could still refer to elements of “objective” or “systematic” violence with regard to the refugee crisis and the fight against terrorism. Considering these precedents that go in the same direction as my argument, according to which no secession under a “democratic procedure” has existed, it might be suggested that this circumstance is due to the essence of the state. As I will develop in the following section, a state is primarily an instrument of coercion. Such a feature would help to explain why it is so difficult to find elements linked with democratic procedures during the founding process of such entities. Democracy might provide a way of functioning and overcoming conflicts within constituted States, but the creation of a state, even the creation of liberal democracies, is more related to the confluence of power factors than to the will of the people. At this point, I will not go further into the discussion on the extent to which liberal democracies have been founded in the midst of coercion, such as wars, migration, and ethnic cleansing (a dark past that involves existing consolidated liberal democracies, such as the United States, France and as the German Federal Republic). My challenge is more modestly aiming to show that, even today, and within the context of Western Europe, following a democratic procedure such as the one previously defined is not enough to found a new state. Along with the expression of popular will (and according to the idea that secession cannot be developed according to the previous constitutional framework), the success of a claim to independence is also related to factors of power that determine sovereignty and the recognition of the new entity by other states; factors that, in my view, have been underestimated in the debate surrounding Catalan independence.

8.3. The State as a Human Community that Claims the Monopoly of the Legitimate Use of Physical Force

According to Max Weber’s famous definition of the state, “a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”9 Thus, the first require-

8. See Zizek, Violence. 9. Weber, Wirtschaft und Gesellschaft, 821-824. Secession, Democracy and Power: theC atalan Case 167 ment that a successful secession must fulfil is that the new political entity must be able to exercise such monopoly of coercion. Sovereignty, in such terms, means effectiveness in controlling territory and population. State authorities must be able to enforce the law generated by state institutions and taxes must be collected. Without force and without resources from tax revenues, there is no state. As we shall see, these are the criteria that international public law requires to recognize the creation of new states. According to the so-called “effectiveness principle” in international law, what is relevant in appreciating the shaping of a new sovereign state is the ability of the rulers to repress through coercion those agents who seek to challenge the new established political order, whether they be common criminals or a foreign army of occupation. In such conditions, when a political entity exercises the monopoly of violence over a territory and a population, the other states already members of the international community must validate the actual existence of the new state by recognition. Recognition by other independent states, other sovereigns able to exercise the monopoly of violence within their borders, is the key that allows entry into the system of international relations. However, and coming back to the Catalan case, precisely because the Spanish Constitutional framework does not concede margin for the democratic Catalan pro-independence majority to express itself, Catalan sovereignty may only emerge as long as the Spanish legal system is set aside by Catalan authorities. Catalan independence would then rely on the ability of Catalan authorities to contest the exercise of “the monopoly of violence” of the Spanish state. Such a scenario was demonstrated during the symbolic referendum (called a “participatory process”) organized by the government of Catalonia and several civic associations on November 9, 2014. The referendum had been suspended and prohibited by the Spanish Con- stitutional Court, but the Catalan President and the Executive proceeded regardless. In disobeying the resolutions of the Spanish Constitutional Court, the Catalan President and the Executive contested the effectiveness of the Spanish legal system and, particularly, the Spanish Constitutional framework, and thus questioned the ability of Spanish central authorities to repress an act that sought to challenge the Spanish legal order. In other words, carrying on with the “participatory process” was not important from the point of view of the state’s recognition, but because it challenged the “exercising of the monopoly of violence” of the Spanish authorities. This was immediately understood by the Spanish government, which, in the days following, urged the prosecutor to lodge a complaint against 168 The Catalan Process the Catalan President and some members of the Catalan Executive. The Catalan process has been characterized by broad-based democratic and pacific popular mobilizations, such as the enormous rallies organized in 2012, 2013, 2014, and 2015 on the Catalonia National Day (September 11), but none of them had the political effectiveness in the process of building a state that was demonstrated by the disobedience of the Catalan authorities in organizing the symbolic referendum of November, 2014. The point is that, within a context in which a referendum on secession cannot be agreed upon between Catalan and Spanish authorities, Catalan secession will only take place if Catalan authorities are able to establish the factors of power that would allow them to exercise “the monopoly of violence” within Catalan territory and over the population. These factors of power, among other aspects, should ensure the democratic expression of the people’s will of secession by means of another referendum on sovereignty outside of the Spanish Constitutional provisions. But shaping structures, such as an independent tax office that could collect all taxes generated in Catalonia, a security force that could control the territory, an independent system of international relations, and unilateral secession on top of all this, would require a much broader disobedience among Catalan officials and Catalan citizenship than that which occurred during the “participatory process” in November, 2014.

8.4. State Recognition

As I have said, the crucial issue according to international public law, to be recognized as a state, concerns the existence of a government able to control the territory and the population of the new entity.10 There is some doctrinal discussion regarding the act of recognition by other states: whether the latter is declarative (meaning that if the state already exists de jure, therefore, recognition by the other states merely verifies this situation) or constitutive (meaning that recognition by the other states is necessary in order to be considered a new sovereign entity to full legal effect).11 In any case, international practice shows that some recognition (through declaration or diplomatic note) must be given by other states in order to allow the authorities of the new state to display

10. On the principle of effectiveness in international law see Kelsen, Teoría general, 262. 11. See Díez de Velasco, Instituciones, 284-287. Secession, Democracy and Power: theC atalan Case 169 full international activity (and, from that point to onwards, not be subordinated to the international relations developed by the government of the state from which the new entity has seceded). A bilateral secession negotiated by the central government and the authorities of the territory that seek independence, and provided with some kind of democratic legitimacy (such as a referendum), might eventually lead to recognition being extended by other states. Democracy, as I outlined, could confer legitimacy before other political actors but, in the international relations dynamic that drives the recognition of a new state, the core question is whether other states perceive the existence of a ruling apparatus capable of imposing its legal norms over the population of the territory in question. State recognition is definitely an institution grounded in power relations. It cannot be otherwise, since some of the states from which recognition is required are not democratic. The prominence of states not organized under the principles of democracy and liberalism is obvious in the existing link between state recognition and certain international organizations, such as the United Nations. Given that accessing the United Nations is not a requirement for being considered an independent state, if we observe the evolution of the cases of independence in recent decades, one can observe that membership in the United Nations might be perceived/understood/considered as an ir- reversible step towards the admission of the new entity into the system of international relations. The admission of any state to the United Nations is undertaken by means of a decision of the General Assembly upon the recommendation of the Security Council.12 This prior recommendation of the Security Council is therefore crucial to opening the vote in the As- sembly and allows the rejection of candidates lacking political support. A recommendation for admission from the Security Council requires affirmative votes of nine of the council’s fifteen members, provided that none of its five permanent members have voted against the application. Among the five permanent members of the Security Council, three are liberal democracies (the United States, France and the United Kingdom) but there is also a Communist regime of one single party (People’s Repub- lic of China) and a formal democracy with some authoritarian features (the Russian Federation). Therefore, the independent state of Catalonia, in order to become full member of the United Nations, should gain the support, or at least the indifference, of the People’s Republic of China and

12. Article 4.2, Charter of the United Nations. 170 The Catalan Process the Russian Federation, presumably not very impressed by any democratic credential that Catalan authorities could provide to demonstrate popular support for its independence. If the secession has been achieved after negotiation and a bilateral process, and the new state does not significantly affect the political interests of any of the five permanent members of the Security Council, the application to the United Nations membership would likely be processed without problems. The disintegration of the Soviet Union provides an example of the latter. As is well known, the Russian Federation was considered the successor to the Soviet Union in its permanent membership of the United Nations Security Council and, thus, with the right to exercise veto. Even though the claims for independence in some Soviet republics arose under serious and violent tensions (as happened shortly after the declaration of independence of the Baltic states), the final split of the So- viet Union and its dissolution established in the Minsk agreements signed in 1991, promoted the fact that the new independent republics (not only the European republics but also the Asiatic republics that emerged from the collapse of the Socialist federation) were mutually recognized, and that the partition was pacifically negotiated. Such circumstances allowed, therefore, access by the new republics to full United Nations membership without any opposition in the Security Council from the Russian Federa- tion or from any other of the permanent members. On the contrary, unilateral secessions with persistent opposition from the matrix state are more likely to encounter obstacles and the new state authorities are called to manage the different diplomatic interests of, at least, the five Security Council permanent members. Palestine is an example of this, as it still has not overcome the veto of the United States, as is Kosovo, as its United Nations (UN) membership application has been denied, since the Russian Federation, traditional ally of Serbia, is not eager to recognize the aforementioned republic and would probably use the veto to avoid admission by the General Assembly vote. In the Catalan case, everything indicates that Catalan independence will come from a unilateral secession from Spain. Therefore, without agreement, it would be elementary for Catalan claims and Catalan admission as a sovereign state to the UN to count on no opposition among the five permanent members of the Security Council. And such consent, rather than being achieved by means of arguing in terms of the democratic support that secession has among Catalans, might be reached by seeking to satisfy the political interests that some of the five members Secession, Democracy and Power: theC atalan Case 171 would have in Western Europe. A non-democracy such as People’s Repub- lic of China would not be concerned by either the fact that the majority of Catalans voted for independence in a referendum, or that the overall majority of the Catalan Parliament voted for independence. China would only be concerned by Catalan interests if Catalan authorities manage to offer them benefits in terms of political or economic influence, that is, in terms of power.

8.5. Catalan Secession: A New Kind of Secession or a Repetition of Previous Cases?

The low democratic standards (as has been shown by the Spanish central authorities in denying any referendum on Catalan secession) and the failure of multinational accommodation within the Spanish constitutional framework (as was seen in the Spanish Constitutional Court’s ruling issued on June 28, 2010 which declared some parts of the 2006 Catalan basic law amendment unconstitutional and void) have boosted a majority demand for independence among Catalan society. However, this majority is not likely to be explicitly expressed within the Spanish Constitution- al framework. Such circumstances will probably not allow the Catalan claim for independence to meet the third condition of the aforementioned definition of secession according to a “democratic procedure,” that is, “a decision on sovereignty adopted according to the previous legal and constitutional framework in a background of institutional stability.” The Catalan path to independence, if achieved, would therefore differ from the examples of a democratic secession that have been mentioned above, such as the Scottish or the Quebecois processes. This difference, however, will perhaps give the supporters of Catalan independence some chance of success, or at least evidence of the existence of a greater majority of pro- independence citizens than those seen in Scotland or in Quebec. However, once this democratic support appears as irrefutable, the creation of the Catalan state will require the concurrence of the logic of power, a dimension/aspect absent from the mentality of the Catalan political and intellectual establishment so far. The aim of any pro-independence movement is, after all, to create a state, an entity that exercises the “monopoly of violence.” Without achieving a concept of sovereignty grounded on pure facts and force (such as the one announced by Carl Schmitt when he famously stated that sovereign is the one “that decides on 172 The Catalan Process

the state of emergency”),13 even within the circumstances of a great majority supporting the independence in Catalonia, the passage to becoming a state will require a break with the Spanish Constitutional framework and, therefore, a movement of facts beyond the norms. As we have seen, such breakups have been the only way to access full sovereignty, while democracy has played almost no role. Power factors, on the contrary, have been crucial. Breakups have normally been expressed through declarations of independence, from the declaration of independence of the American States to that of the Parliament of Kosovo in 2008, in both cases, the declaration of independence are to be seen as a gesture that confirms the invalidity of the former legal order, which shows the control of the new authorities of the territory and the population to the world, and therefore opens up the possibility of being recognized by other states. Controlling the territory, enforcing the law issued by the independent authorities, ensuring that people pay their taxes to the new independent authorities… these are the factors that count in order to obtain international recognition beyond democracy, even within a democratic context. Nihil novum sub sole.

References

Bakke, Elisabeth. “The Principle of National Self-Determination in Czech- oslovak Constitutions 1920-1992.” Central European Political Science Re- view 3, no. 10 (2002): 173-198. Cox, Robert Henry, and Erich G. Frankland. “The Federal State and the Breakup of Czechoslovakia: An Institutional Analysis.” Publius 25, no. 1 (1995): 71-88. Díez de Velasco, Manuel. Instituciones de Derecho Internacional Público. Ma- drid: Tecnos, 2013. Dion, Stéphane. “Why is Secession Difficult in Well-Established Democra- cies? Lessons from Quebec.” British Journal of Political Science 26, no. 2 (1996): 269-283. Kelsen, Hans. Teoría general del Derecho y del Estado. México: UNAM, 1995. Lindgren, Raymond E. Norway-Sweden: Union, Disunion, and Scandinavian Integration. Princeton: Princeton University Press, 1959. Massa, Salvatore. “Secession by Mutual Assent: A Comparative Analysis

13. Schmitt, Politische Theologie, 13. Secession, Democracy and Power: theC atalan Case 173

of the Dissolution of Czechoslovakia and the Separatist Movement in Canada.” Wisconsin International Law Journal, no. 14 (1995): 183. Schmitt, Carl. Politische Theologie. Vier Kapitel zur Lehre von der Sou- veränität. Berlin: Duncker & Humblot, 2004. Schnabel, Albrecht, and Thakur Ramesh (eds.). Kosovo and the Challenge of Humanitarian Intervention: Selective Indignation, Collective Action, and International Citizenship. Tokyo: UNU Press, 2000. Stein, Eric. Czecho/Slovakia. Ethnic Conflict, Constitutional Fissure, Negoti- ated Break-Up. Ann Arbor: The University of Michigan Press, 1997. Urrutia Libarona, Íñigo. “Territorial Integrity and Self-determination: the Approach of the International Court of Justice in the Advisory Opin- ion on Kosovo”. Revista d’Estudis Autonòmics i Federals, no. 16 (2012): 107-140. Weber, Max. Wirtschaft und Gesellschaft. Tübingen: J.C.B. Mohr (Paul Sie- beck), 1972. Young, Robert A. The Breakup of Czechoslovakia. Kingston: Queen’s Uni- versity Institute of Intergovernmental Relations, 1994. . “How Do Peaceful Secessions Happen?” Canadian Journal of Politi- cal Science 27, no. 4 (1994): 773. Zizek, Slavoj. Violence. London: Profile Books, 2008.

9 Post-Secession Duties: about the Equal Recognition of Languages in an Independent Catalonia

Albert Branchadell

9.1. State of the Art

In 2012, pro-secession activist Eduard Voltas published a couple of newspaper columns that opened up a long debate on the status of languages in a future independent Catalan state. In “La tribu o l’estat,”1 he advocated for an inclusive secessionist project in which the different “identity sensibili- ties” that exist in Catalonia can feel represented; in “En castellà també, sisplau,”2 he went a step further and argued that on the road to victory, Catalan secessionism has to “spouse” the Spanish language and turn it into a value of the future Catalan state, which means among other things that Spanish should undoubtedly keep its present official status. Voltas was perfectly aware of what he was saying: “yes, it is a radical change of paradigm for longstanding Catalan linguistic nationalism.” Shortly afterwards, the leader of the centre-left secessionist party Esquerra Re- publicana de Catalunya, Oriol Junqueras, published a newspaper column that turned Voltas’ suggestion into a political promise. In his “El castellà i la República catalana”/”El castellano y la República catalana”3 he said

1. Voltas, “Tribe or the State.” 2. Voltas, “Spanish as Well.” 3. Junqueras, “Spanish and Catalan Republic.” 176 The Catalan Process that Catalan would be the national and official language of Catalonia but announced that Spanish would also be an official language in the Catalan republic. Later on, the leader of the centre-right secessionist party Con- vergència Democràtica (later on renamed as Partit Demòcrata Europeu Català or PDECat) and at the time president of the Catalan autonomous government, Artur Mas, said in an interview that Spanish would keep its official status in an independent Catalonia (La Vanguardia, October 12, 2012). Both these announcements were followed by hundreds of journalistic contributions. (A second wave of journalistic contributions arose in 2016 after the publication of the controversial manifesto “For a true language normalization process in independent Catalonia” by the so- called Koiné group. This manifesto called for the “restitution” of Catalan to the status as Catalonia’s “territorial language.” Although its authors later denied it, most commentators considered this to be a call for official monolingualism.)4 In contrast to this prolific journalistic debate, rather few academic contributions have been published on the language regime of a possible independent Catalan state. In a sort of pioneering paper, Branchadell5 noticed that an officially monolingual independent Catalan state would be an unwelcome exception to the common-sense rule that a state’s majority language is also (one of) its official languages(s), and then argued that international / European climate on linguistic diversity militate against sheer official monolingualism in such a linguistically heterogeneous polity as Catalonia (where Spanish, not Catalan, is the majority language). Escribano6 drew on the Catalan constitutionalist tradition (from the Bases of Manresa of 1892 to the blueprint of the Catalan Statute of Autonomy of 1931) to support the view that the Constitution of the new Catalan state should grant exclusive official status to Catalan, as the aforementioned texts did. Despite this monolingualist slant, Escribano suggested including Spanish among the “recognized languages” that citizens would be entitled to use with administrative authorities (albeit on a temporary basis: Escribano made his suggestion “without taking for granted that this recognition has to be permanent, so that it can be repealed as soon as all citizens become proficient in Catalan”).

4. For an exhaustive compilation of all these contributions see Sendra, Llengües a la Cata- lunya independent. 5. Branchadell, “Language Policy,” 73-96. 6. Escribano, “Criteris,” 164-174. Post-Secession Duties: about the Equal Recognition of Languages in an IndependentC atalonia 177

In a rather informational paper targeted at a German audience, Nagel7 gave a good description of how the politicization of the language issue after the wreck of the 2006 Statute of Autonomy fuelled the rise of Catalan secessionism and, at the same time, convincingly depicted how “moderate” the linguistic stand of mainstream secessionism is (a Spanish-written flyer of the Assemblea Nacional Catalana, the most prominent secessionist NGO, read: “Question. I speak Spanish. Will I have problems keeping speaking it? Answer. Not a single one. No one will have to resign from her or his identity, language, or culture. Spanish is the language of many Catalans and it represents a great cultural and economic asset”). As for the language(s) of an independent Catalonia, Nagel did not go beyond framing the terms of the debate. Considering the role that Spanish plays in Catalan society, secessionist leaders quietly accept the premise that “any declaration of monolingualism in the new Catalan state would be implausible [unglaubwürdig] and politically counter-productive [kontraproduktiv]”. Some isolated voices notwithstanding (like Escribano’s), Nagel concluded that the majority of secessionists support official bilingualism, with some differences in the details. Underlying this stand is what Kraus8 depicted as a “loosening” of the traditional bond between language and Catalan identify, which “somewhat paradoxically” paralleled the rise of the secessionist movement.9 This point was reinforced by Sendra & Vila10 in a paper that set out to describe an explicit “discursive change” in mainstream Catalan secessionism with respect to language. In a more “philosophical” contribution, Marí11 claimed that whatever the rules that are meant to license the language regime of a future Catalan independent state, they have to be grounded in principles of universal justice. This closely resembles our own endeavour; the problem is that the linguistic justice that Marí had in mind was the one of Van Parijs12 and its territorial principle, which presupposes the kind of pre-existing linguistic homogeneity that does not exist in Catalonia.13 This is also the

7. Nagel, “Unabhängigkeit,” 260-282. 8. Kraus, “Language Policy,” 129-140. 9. Ibidem, 239. 10. Sendra, and Vila,“Estatus de les llengües,” 33-50. 11. Marí, “Notes sobre l’ordenament lingüístic,” 237-253. 12. Van Parijs, Linguistic Justice. 13. See De Schutter, “Linguistic Territoriality,” 105-120, and see also Branchadell, “One Nation.” 178 The Catalan Process problem with Escribano’s approach: in 1892 or even in 1931 Catalonia was homogeneous enough to support a regime of official monolingualism, but in the second half of the 20th century this linguistic homogeneity was irremediably lost. In a mostly comparative-oriented work, Branchadell14 argued that linguistically heterogeneous polities tend to have pluralistic language regimes. Among eight linguistically heterogeneous newly independent states in central and eastern Europe (Belarus, Bosnia and Herzegovina, Estonia, Latvia, Macedonia, Moldova, Montenegro, and Ukraine), six have adopted a more or less pluralistic language regime (all of them except Estonia and Latvia, where persisting official monolingualism is a source of political strife). In view of this tendency and also taking public opinion polls into account (which show a wide popular support of official bilingualism), Branchadell’s expectation was that a newly independent Catalonia would keep Spanish as one of its official languages. What is striking in opinion polls is that both Spanish-speaking and Catalan-speaking interviewees support official status for Spanish. This makes Catalonia a different case from other polities, where opinions are divided along linguistic lines: in these other polities, official status for the locally spoken non-autochthonous language (e.g. Russian in Latvia) is largely rejected by speakers of the corresponding autochthonous language.

9.2 Discussion

The local Catalan debate on the future status of Spanish is connected to an emerging scholarly debate in the field of political theory.15 We might encapsulate this debate in the question of what obligations linguistically heterogeneous states have towards each language spoken in the community (we take the expression “languages spoken in the community” from Alan Patten,16 on the understanding that it does not cover the languages of immigrants). The question can be specifically formulated for linguistically heterogeneous newly independent states or, still more specifically, for languages spoken in the community which happen to be the original

14. Branchadell, “Monolingüisme oficial,” 202-236. 15. One can consider the starting point of this debate Kymlicka, and Patten, Language Rights. 16. Patten, Equal Recognition. Post-Secession Duties: about the Equal Recognition of Languages in an IndependentC atalonia 179 state-wide official language of the state from which such newly independent states have seceded. Needless to say, from this general question we will be able to jump to the specific Catalan question that this contribution is interested in, namely what obligations a newly Catalan independent state will have towards Spanish. Before we proceed, a word is in order on the theoretical framework we are going to explore here. First of all, we have to start with the obvious: no standard theory of linguistic justice exists that every scholar is willing to adhere to. We intend to use Patten’s theory because it is superior to rivalling theories on two important accounts. On the one hand, Patten’s theory (unlike Van Parijs’) does not presuppose either national or linguistic homogeneity. Van Parijs’ main endeavour is to design a theory that aims to preserve the linguistic homogeneity of linguistically homogeneous territories. When he asks himself whether Europe should be Belgian,17 Van Parijs is advocating a mosaic view of multilingualism “in which clear and stable boundaries separate monolingual cultural blocks,” to put it in De Schutter and Boyden’s terms.18 Quite on the contrary, Patten’s framework is modelled on contexts “in which there are a plurality of national identities among citizens of […] unit (T). In particular, it is concerned with cases where, although some citizens of T have a strong, even exclusive, sub-state national identity focused on T, others maintain a national identity focused on the state as a whole (S).”19 We believe that this makes Patten’s approach better equipped to deal with the Catalan case than previous approaches that treat Catalonia as an homogeneous unit, or at least as homogeneous as Quebec, Flanders or South Tyrol (Catalonia is not a homogeneous polity, either in national or in linguistic terms).20 On the other hand, Patten’s theory is not just a theory of linguistic justice; linguistic justice is embedded into a broader theory of secession and so offers more sophisticated tools to analyze the Catalan case that are unavailable in rivalling theories. As a matter of fact, the nationally mixed “T units” that Patten has in mind are “would-be secessionist units” like Catalonia: the interplay of linguistic rights and post-secession duties that Patten’s theory sets in motion is a

17. Van Parijs, “Must Europe Be Belgian?” 18. See De Schutter, and Boyden, “Ethics Language Planning,” 7-18. 19. Ibidem, 239. 20. See Branchadell, “One Nation,” and also Branchadell, “Missing the Overlap.” 180 The Catalan Process perfect fit when one thinks of the on-the-ground linguistic debate that has been sparked by secessionism in Catalonia.

9.2.1. State Obligations towards Languages

In his own words, Patten’s book revolves around two main claims: “the first holds that the liberal state has a responsibility to be neutral toward the various conceptions of the good that its citizens affirm. The second states that, in certain domains, the only way for the state to discharge its responsibility of neutrality is by extending and protecting specific minority cultural rights.” In other words, “a state that is neutral toward culture is not one that takes no notice of culture, or disentangles itself from culture, but is one that extends equal recognition to each culture.”21 What does equal recognition amount to? A general definition reads as follows: “two or more cultures (or religions, etc.) are equally recognized when a comparable form of customized assistance is extended to each of them. The same kinds of rules, facilities, and resources that are offered to assist one are also offered to assist the other(s).”22 Why should states be neutral at all? The ultimate reason for this neutrality-of-treatment requirement lies in the need to provide people with a fair opportunity for self-determination, assuming that self-determination is something of considerable value for individuals. In typical liberal terms, Patten defines self-determination as “the interest that a citizen has in being able to pursue and enjoy the conception of the good that he or she happens to hold.”23 The liberal state has a specific responsibility to be neutral toward the various languages spoken in the community, given the pivotal role that language plays in the fulfilling of self-determination. In linguistic terms, neutrality-driven equal recognition requires some sort of multilingualism. According to Patten, “two or more languages enjoy equal recognition from public institutions when those institutions extend roughly comparable forms of assistance to each on a prorated basis.”24 Under (unrestricted) official multilingualism, “each language spoken in the community enjoys the same benefits of the law. For instance, if a particular public service (e.g., advice about tax matters from a government office) is offered in one

21. Patten, Equal Recognition, 27. 22. Ibidem, 161. 23. Ibidem, 28. 24. Ibidem, 200. Post-Secession Duties: about the Equal Recognition of Languages in an IndependentC atalonia 181 language spoken in the community, then that same service is also offered in other languages spoken in the community. Or if a particular piece of public business (e.g., filing a suit in a court of law) can be conducted in one language, then it can also be conducted in the others.”25 The prorating proviso qualifies unrestricted official multilingualism in the sense that “some account is taken of the number of people demanding services in each recognized language.”26 In other words, under prorated official multilingualism “equality is said to be realized when people receive services in their own language equivalent in value to their fair claim on public resources rather than when they receive equivalent services.”27 Of course, for Patten’s scheme to work, one has to be able to determine what the languages “spoken in the community” are and who the “speakers” of each language are. These are clear questions with fuzzy answers. As is common in the literature, we will assume that these two controversial questions pose no problem to the development of a theory of linguistic justice. Before we proceed, a comment on the word “official” is also imperative. As a good Anglo-American scholar, Patten speaks of “official” languages in a working, not statutory sense.28 Whether it has statutorily been declared official or not, a language spoken in the community is an official language as long as citizens are allowed to use it for their interaction with the government. When we claim that in a newly independent state of Catalonia Spanish will have to be official we claim that it will have to be official at least in this sense. Other than numbers, equal recognition schemes can also be sensitive to various disadvantages that the different languages spoken in the community might suffer from. While keeping neutrality of treatment as the cornerstone of his approach, Patten is ready to accept “departures” from equal recognition. Patten is well aware that “a language community may find it hard to flourish under conditions of equal treatment because it is hobbled by injustices it has suffered in the past.”29 For such cases, Patten agrees that his model must be qualified. What he does is to adhere to an old liberal belief: “Liberals widely believe that some kind of affirmative action may be in order as a means of compensating for present disad-

25. Ibidem. 26. Ibidem. 27. Ibidem, footnote. 28. See Cooper, Language Planning. 29. Patten, Equal Recognition, 212. 182 The Catalan Process vantages flowing from past injustices. Where this is applicable to our problem, we would again have a reason for considering a departure from equal recognition.”30 What Patten has in mind here are linguistic minorities within a traditional state, but there is nothing in this approach that prevents us from applying it to the “titular” group of a newly independent state.

9.2.2. Newly Independent States’ Obligations towards Languages

What obligations do linguistically heterogeneous newly independent states have towards their linguistic groups? More specifically, what obligations do linguistically heterogeneous newly independent states have towards the original state-wide official language of the state from which they have seceded? If we take Patten’s approach literally, newly independent states should have the same duties as old ones with respect to each language spoken in the community. Whether newly independent or long time independent, in the name of neutrality, all (liberal) states have a responsibility to extend equal recognition to “each language spoken in the community.” Now the truth is that Patten is not content with this simple statement and further elaborates his account for the specific case of states created through secession. In Patten’s formulation, the interplay of equal recognition and secession is a complex one. In the chapter devoted to secession, Patten discredits “plebiscitary” or “democratic” theories of secession and puts forward a theory of the remedial type. In practical terms, what Patten does is to extend Buchanan’s (2004) framework to include a new form of injustice that can justify secession. According to Patten, the “failure of recognition” condition is met “when the state has failed to introduce meaningful constitutional arrangements that recognize the distinct national identity of (some) members of the secessionist group.”31 Technically speaking, “a national identity is recognized [...] to the extent that bearers of that identity enjoy self-government.”32 This is a very important limitation on secession: according to Patten, a democratic mandate won by a national minority does not generate a right to secede unless the failure of recognition condition is met.

30. Ibidem, 214. 31. Ibidem, 239. 32. Ibidem, 240. Post-Secession Duties: about the Equal Recognition of Languages in an IndependentC atalonia 183

Let us have a look at the possible empirical basis of this postulate. As a matter of fact, something like the failure of recognition condition is a valuable analytical instrument. With it, we can better understand the reasons for a number of past secessions (taking “secession” in a broad sense). Some cases in which we could say that the failure of recognition condition was met (and hence secession was justified) include the “secession” of Czechoslovakia from Austria-Hungary in 1918 (Czechs were not equally recognized in the Empire), the “secession” of the Sudeten from Czechoslovakia in 1938 (Germans were not equally recognized in interwar Czechoslovakia), the “secession” of Slovakia from Czechoslovakia in 1990 (Slovaks were not equally recognized, despite the federal structure of the CSSR), and might include a future “secession” of southern Slovakia, where Hungarians are presently not equally recognized. The condition was probably also met in the former USSR (despite its federal structure, there was not a true equality in the recognition of the different national identities of the Soviet republics) and in the former Yugoslavia. Now, we could also speak of failure of recognition in the “secession” of Kosovo from Serbia (2008) and of Crimea from Ukraine (2014). As can be seen, empirical cases include newly independent states that seceded from non- equally-recognizing states and fell into failure of recognition themselves. If we map the failure of recognition condition into the future, it seems that the territorial integrity of a number of condition meeting areas is also in danger. Moldova has already lost Transnistria. The provinces of Donetsk and Lugansk might end up de facto seceding from Ukraine. The future of Macedonia, with its ill-recognized Albanian minority, is also at stake. But what if the failure of recognition condition is not met? In other words, what if a region tries to secede from a state that is engaged in equal recognition? According to Patten, the plebiscitary theory of secession “gives the go- ahead to a secession that dismantles arrangements providing for equality in the recognition of the different national identities prevalent in the secessionist region and replaces them with a new set of arrangements that exclusively recognize the sub-state identity.”33 In his own account, the authority of a democratic mandate in favour of secession “is restricted or nullified when secession would dismantle arrangements providing for the equal recognition of the different national identities prevalent in the

33. Ibidem, 252. 184 The Catalan Process

secessionist region.”34 In other words, it seems that secession from a well- formed multinational federation (in which the different national identities are equally recognized) is never permissible. But, as a matter of fact, secession need not be equality-disabling. Patten himself is aware of this when he takes in the objection that “it is possible that the post-secession states could enter into confederal arrangements with one another in which the original state-wide national identity borne by some citizens of the secessionist group finds significant expression and recognition.”35 According to this objection, “the requirement that there be failure of recognition in the pre-secession state ignores this possibility of a post-secession reestablishment of equal recognition and to this extent is too restrictive.”36 His final position is that “a secession that dismantles a particular scheme for providing equal recognition should not be said to be compatible with equal recognition unless there is a well-founded expectation that a new confederal scheme that reestablishes equal recognition will in fact be adopted.”37 To tell the truth, the requirement that post-secession reestablishment of equal recognition consists of a confederal arrangement is still too restrictive. Confederal arrangements are too rare to begin with. Maybe the answer to this should be that confederal arrangements need not be the only means of preventing a net loss of equal recognition. If we set the requirement of confederal arrangements aside, we can keep the idea that secession from an equally recognizing state of things does require the post-secession reestablishment of equal recognition. Before we deal with Catalan post-secession duties with respect to equal recognition, an obvious question arises. In the Catalan case, is the failure of recognition met or not met? To tell the truth, whether the failure of recognition condition is met in this case (and thus prima facie justifies secession) is not the topic of this paper. But we are interested in the consequences of meeting or not meeting the condition for the post-secession duties of a newly independent Catalan state. So a comment on this issue is in order. The situation is somewhat paradoxical. In Patten’s view , the recognition of a distinct national identity entails the enjoyment of self-government by the bearers of that identity. Now, the Catalan case is that the bearers of a distinct national identity do enjoy (a degree of) self-government within

34. Ibidem, 253. 35. Ibidem, 262. 36. Ibidem. 37. Ibidem, 264. Post-Secession Duties: about the Equal Recognition of Languages in an IndependentC atalonia 185

Spain but their distinct national identity is not recognized as such. The Spanish Constitution does not recognize national identities other than the Spanish one, and current proposals to amend it do not point in this direction either. As a matter of fact, there is a strong resistance among Spanish political elites to even referring to Catalonia as a “nation.” (Former Spanish Prime Minister Felipe González even denied having used this term for Catalonia in a newspaper interview.)38 According to Patten, recognition and self-government go hand in hand: if there is recognition there is self-government, and the other way around. The possibility that there is recognition without self-government or self-government without recognition is not foreseen. So it is difficult to determine in strictly Pattenian terms (equal recognition = self-government) whether the failure of recognition condition is met in Spain. (Of course, one could always argue that the quality of Catalan self-government is low and has worsened in the past few years, but this would set the issue on a different track. To put it in the terms of Buchanan, the question would be whether Spain has violated her “autonomy agreement” with Catalonia — again not the topic of this paper.) One thing we can do is to distinguish the recognition of national identities from the recognition of languages, which is in fact what Patten implicitly does. In this vein, we could figure out a new “failure of language recognition” condition. Remember: “two or more languages enjoy equal recognition from public institutions when those institutions extend roughly comparable forms of assistance to each on a prorated basis,”39 In answering this question, a distinction has to be made between state (Span- ish) institutions and sub-state (Catalan) ones. Does Spain extend roughly comparable forms of assistance to Spanish and Catalan? The answer here is clearly “no.” Starting from the Spanish Constitution (Spanish is the only state language), there is no area of state influence in which languages other than Spanish are put on an equal footing with it. Does the prorating justify this outcome? The answer is again “no.”40 To put it in Patten’s terms, Catalan-speaking people do not “receive [state] services in their own language equivalent in value to their fair claim on public resources.” But answers look different if Catalan institutions are concerned. Does

38. See the interview by Enric Juliana to Felipe González, “Estoy a favor de una reforma que reconozca Cataluña como nación.” 39. Patten, Equal recognition, 200. 40. See Plataforma per la Llengua, L’anomalia espanyola en el tractament lingüístic, and Plata- forma per la Llengua, Balances lingüístiques. 186 The Catalan Process

Catalonia extend roughly comparable forms of assistance to Spanish and Catalan? The answer here is “yes.” According to the Catalan Statute of Autonomy, both Catalan and Spanish are Catalonia’s official languages, and leaving schooling aside (where Catalan, not Spanish, is the “normal” language of instruction) both Catalan and Spanish are associated to the same package of duties and rights. Given that (as far as state institutions are concerned) this specific failure of language recognition condition is met, is Catalan secession thereby justified? Patten does not have an answer to a question that he does not pose himself. We do not have an answer either, but we do have an intuition: one should distinguish the failure of language recognition condition from what we could term the “destruction of language” condition. Ac- cording to Dudar,41 there are instances in which specifically “linguistic” secession is warranted. The aggressive attitude of Turkey towards Kurdish probably makes Kurdish secession a matter of linguistic survival. Linguis- tic survival is not the issue in the Catalan case. Insufficient recognition is not what Kurdish has suffered and suffers from. In present-day Spain there is nothing similar to Law no. 2932, which made it illegal to express, diffuse, or publish opinions in any language other than Turkish.42 Spain may have failed in many ways, but from 1978 onwards it has not failed to provide basic protections to the Catalans as a linguistic minority. On the other hand, remember that, as far as Catalan sub-state institutions are concerned, the failure of language recognition condition is not really met. As an autonomous region, and as far as language is concerned, Catalonia does practice equal recognition. We noticed earlier that in Patten’s account secession from an equally recognizing state does require the post-secession reestablishment of equal recognition. Now we could enrich Patten’s approach with the following proviso: a seceding region that has developed a (pre-secession) scheme for providing equal recognition is not allowed to dismantle it after secession, irrespective of whether the state from which it is seceding is engaged in equal recognition or not as far as state institutions are concerned. This reflection paves the way for the next section, in which we address the issue of the future status of Spanish in an independent state of Catalonia, no matter how this independence will come about.

41. Dudar, “Speaking of Secession,” 555-583. 42. On Kurdish within Turkey, see also Skutnabb-Kangas, and Bucak, “Killing a Mother Tongue,” 347-370. Post-Secession Duties: about the Equal Recognition of Languages in an IndependentC atalonia 187

9.2.3. Post-Secession Catalan State Duties towards Spanish

As a state, the newly independent state of Catalonia will have to recognize Spanish. And according to the proviso we have just formulated, given its pre-secession scheme of equal recognition, the newly independent state of Catalonia will have a reinforced qualified obligation to do so. What will this recognition amount to? Our point is that this recognition will at least amount to maintaining the existing language rights. And, given that the existence of rights associated to one language makes this language official, the duty of recognition will amount to de facto having Spanish as an official language of independent Catalonia. This point of view gets some support from comparative politics. We find what we could term language-regime-maintenance policies in other secessionist movements of the liberal democratic world. Scotland is an obvious case of language-regime-maintenance. In Scot- land there is no other horizon than maintaining English as the official language of an independent Scottish state. Scotland’s Future (the white book published by the Scottish government on the occasion of the 2014 referendum)43 is crystal-clear in this sense. Witness the no-change clause in the answer to question 589:

589. What will our national languages be? We propose no change on independence to the status of Scotland’s languages such as English, Gaelic, Scots and British Sign Language.

In the answer to question 234 the SNP made it clear that in an independent Scottish state the recognition of Gaelic would not go beyond its current limits:

234. Will Gaelic be recognised as an official language in an independent Scotland? In Scotland, Gaelic has a significant level of official support from the Scottish Government. Official recognition for Gaelic is also provided by the 2005 Gaelic Act. In an independent Scotland, this official recognition would be confirmed and maintained.

43. Scottish Government, Scotland’s Future. 188 The Catalan Process

A possible question on the official status of Scots was not even formulated:

235. Will there be more support for the Scots Language in an independent Scotland? The 2011 Census, for the first time, provided information on the numbers of Scots speakers. This information, in an independent Scotland, will assist in developing policy and promoting the use and status of the Scots language and supporting communities that speak Scots.

With its own particularities, Quebec is also a case of language-regime- maintenance. Take the program of the Parti Québécois adopted at the 16th National Conference in April, 2011. On the one hand, the program states that the sovereign Quebec will be a “un pays francophone, libre de légifé- rer comme il l’entend pour garantir la prédominance du français partout sur son territoire,” and in this sense commits itself to really making French “la seule langue officielle du Québec.” On the other hand, though, the program states that a pro-sovereignty government “réaffirmera la garantie de la préservation des droits linguistiques de la communauté anglophone” and “assurera le maintien du patrimoine institutionnel de la communauté anglophone.” In Flanders no sovereignty referendum has taken place yet — but language-regime-maintenance attitudes can also be expected there. As is well-known, the future status of Brussels in a partitioned Belgium is a controversial one. But whatever the scenario, one would expect the safe- guarding of the language rights of Brussels’ French-speaking majority. This is what Van Parijs implicitly suggested when he said that “the future lies […] neither in an absorption of Brussels […] into a re-drawn Belgique; nor in a “reconquest” of Brussels by Flanders; but in a full recognition [our italics] of the increasingly sui generis nature of “the people” of Brussels.”44 “Perpétuer les droits des Québécois anglophones” is very similar to what Catalan secessionist leaders said with respect to Catalan Spanish- speakers during the Catalan general election campaign in 2015. As former Catalan president Artur Mas said in an interview at a Spanish radio sta- tion, in an independent Catalan state “the language rights of Spanish- speakers will remain exactly the same as now.” In the program of Junts pel Sí (“Together for yes,” the coalition of Mas’ Convergència Democràtica and Oriol Junqueras’ Esquerra Republicana), there was no room for doubt:

44. Van Parijs, “Must Europe be Belgian?,” 235-253. Post-Secession Duties: about the Equal Recognition of Languages in an IndependentC atalonia 189 in the independent state of Catalonia “the Spanish language will remain an official language.” (In the same vein, a number of drafts of a future Catalan constitution that have appeared in the recent past include the declaration of Spanish as an official language of the independent state of Catalonia. The most prominent one is the constitution drafted by Santiago Vidal, a former judge who was suspended precisely for drafting it. Section 4 of this constitution read: “Considering the present social and demographic composition of Catalonia, and with the explicit will to care for the better coexistence of all Catalan people, whatever their origin, Spanish benefits from the status of an official language, and will be able to be used orally and in writing by all citizens that desire to use it.”) It seems, then, that Patten’s theory (“all states have a duty to equally recognize”), comparative politics, and Catalan secessionist leaders all point in the same direction: in the independent state of Catalonia Span- ish will be recognized and this recognition will at least amount to maintaining the existing language rights of the Spanish-speaking population. The “at least” clause means that one should not exclude enlarging or strengthening existing language rights. The most contentious case is in the field of education. The current Catalan Statute of Autonomy states that both official languages of Catalonia (Catalan and Spanish) are associated to the same rights and duties. Section 6 states that “all persons have the right to use the two official languages and citizens of Catalonia have the right and the duty to know them” (this duty to know Catalan was qualified by the Spanish Constitutional Court in a way we cannot go into now). But this equality of language rights and duties vanishes when one moves to the field of education. Section 35 of the Statute states that “each individual has the right to receive an education in Catalan,” whereas no parallel right is established for Spanish. In an independent Catalan state, the possibility should not be excluded of making some room for Spanish as a language of instruction. As a matter of fact, there are certain scenarios in which this result would come about. In the independent state of Catalonia, a full-fledged Spanish national minority could emerge (with the political party Ciudadanos as its political instrument) and this minority would have Spain as its “external homeland” or “kin state.”45 The Spanish would pressure the independent state of Cata-

45. Brubaker, Nationalism Reframed. 190 The Catalan Process lonia on behalf of its Spanish national minority. Other than direct pressure, Spain could make accession to the European Union dependent on the frank recognition of language rights of Spanish-speakers in the field of education. The combination of Spanish interests and Copenhagen criteria could bring about the ratification by the independent state of Catalonia of the Framework Convention for the Protection of National Minorities. In a nuanced but nonetheless clear way, section 14 of the Framework Conven- tion establishes the right of persons belonging to national minorities to receive instruction in their language:

2. In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language.

The independent state of Catalonia might also be invited to ratify the European Charter for Regional or Minority Languages. It is true that in a given state the Charter is meant for languages that are “different from the official language(s) of that state,” and we are assuming that Spanish would be an official language in the independent state of Catalonia. But there is nothing in the Charter that prevents it from being applied to languages that are not different from the official language(s) of a given state. Switzerland is here the case in point. In the Declaration contained in the instrument of ratification of the Charter (December 23, 1997), the Swiss Federal Council declared that a number of paragraphs of the Charter shall apply to Romansh and Italian as “the less widely used official languages.” Now, what the Charter includes in the field of education is also nuanced but nonetheless clear. Take primary education, for instance. Measures range from making primary education available in the relevant regional or minority languages to making the teaching of the relevant regional or minority languages an integral part of the curriculum.

9.3. Conclusion

In this paper we have used Patten’s equal recognition account to explore the duties of states (and, more specifically, of newly independent states) Post-Secession Duties: about the Equal Recognition of Languages in an IndependentC atalonia 191 towards each language spoken in the community, and we have asked ourselves what duties an independent Catalan state would have towards Span- ish — the former state-wide official language of the state from which Catalonia would secede. According to Patten, all states have an obligation to equally recognize each language spoken in the community (albeit in a prorated sense), and newly independent states have what we could term a reinforced qualified obligation if prior to secession they were already engaged in equal recognition. As for languages, and leaving education aside, autonomous Catalonia is a polity in which Catalan and Spanish are equally recognized in terms of citizens’ linguistic rights and duties. The main point of this paper is that an independent state of Catalonia would have a duty not to dismantle this equal recognition scheme — and perhaps to enlarge it by equalizing linguistic rights in the field of education as well. In this sense, philosophical reasoning goes hand in hand with political manoeuvring: to this day no mainstream Catalan secessionist leader has spoken up for dismantling the equal recognition provisions of languages that are in force in present-day autonomous Catalonia. Irrespective of its juridical status, in an independent Catalonia Spanish will continue to be a valid means of communication between citizens and their government. In other words, Spanish will de facto be an official language of independent Catalonia.

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10 National Minorities, Self-Determination and Human Rights: a Critique of the Dominant Paradigms in the Catalan Case

Neus Torbisco Casals*

10.1. Introduction

The multifaceted sovereignty process that emerged in Catalonia almost a decade ago offers a fascinating context from which to examine difficult questions about the legitimacy of secessionist demands raised by territorially concentrated national minorities — often dubbed “nations without a state” — in contemporary democracies. This article argues that the mainstream public discourse that aims at grounding the right of the Catalan government to hold a secession referendum (similar to the referendum on Scottish independence that took place in 2014), tends to underestimate basic questions of political justice and human (collective) rights;1 instead, discussions, both in the political and academic realms, typically focus

* Universitat Pompeu Fabra (Barcelona); Graduate Institute of International and Develop- ment Studies (Geneva). I’m grateful to Joan Vergés, Carles Viver i Pi-Sunyer for their invi- tations to discuss earlier versions of this article at the Institut d’Estudis per l’Autogovern, and at the Universitat de Girona. I am especially indebted to Nico Krisch, and also wish to thank Jaume López, Aida López, Jorge Luengo and Pau Bossacoma for inspiring discussions. Finally, I thank Claudia Nadal for her valuable assistance. 1. Among the most influential writings, see: Kymlicka,Multicultural Citizenship, and Politics in the Vernacular; Patten, Equal Recognition; Taylor, “Politics of Recognition.” I have critically analyzed the concept of collective rights in Torbisco-Casals, Groups Rights as Hu- man Rights. 196 The Catalan Process on economic grievances and past injustices during the period of state- building, on legality considerations, on the other — most relevantly, on the alleged existence of a constitutional “right to decide”.2 While these issues are certainly important, the controversial nature of such framing has had deeply polarizing effects. Most crucially, it has displaced questions of legitimacy that are fundamental to deal with the problems that beset the so-called “Catalan process.”3 Furthermore, by relying on a narrow contextual appeal, the sovereignty movement fails to highlight the existing commonalities with other similar struggles in Europe and beyond. As a result, it is harder to situate the (seemingly paradoxical) growing Catalan support for secession within the wider phenomenon of the rise of identity- based political movements in an increasingly globalized world. Despite the heterogeneity of cases, a common aim between Catalan demands and, say, those raised by indigenous peoples is to overcome the pervasive hierarchies of status that subsist in most democratic states and achieve what the Canadian philosopher Alan Patten has dubbed, “equal recognition.”4 Indeed, a broad range of demands raised by minority cultures are rooted in a conception of inter-group (rather than intra-group) justice as non-domination. So, in order to comprehend the roots of the Catalan struggle for independence, and the justification of the specific demands put forward by the current government, it is crucial to engage critically with such conception, which have come to occupy a central place in contemporary debates on democratic self-determination and human rights5 — or so this article contends. To the extent that the dominant public discourses ignore such analysis, they can turn out to be counter-productive. For instance, the perception that Catalonia, despite being a relatively wealthy region, does not get its fair share in the Spanish state has led to an increased sense of

2. For recent academic contributions to the Catalan debate, see: Vergés, Nació necessaria; López Bofill,Nous estats i principi democràtic; Sanjaume “Morality of secession,” 82-106; Requejo, and Sanjaume, “Recognition and Political Accommodation.” 3. For reasons of brevity, in this article I will refer to “the process” to allude to the current revival of sovereignty aspirations in Catalonia. 4. Patten, Equal Recognition, op. cit. 5. Particularly relevant in this respect are current discussions on the scope of the right of peoples to self-determination in the context of the United Nations. Since the early 1990’s, the principle of national self-determination (article 1.2, UN Charter) has been increasingly invoked by sub-groups within multinational states that seek greater self-government or full secession, and, as it is explained below, there is a broader controversy over the interpretation of this principle beyond decolonization. See Roepstorff,Politics of Self-determination. National Minorities, Self-Determination and Human Rights: a Critique of the Dominant 197 Paradigms in the Catalan Case grievance, which the economic crisis has undoubtedly aggravated. Yet the persistent emphasis upon the so-called fiscal imbalance, devoid of a deeper reflection on intercultural equality and solidarity, might actually help to consolidate existing prejudices and stereotypes that feed deeply rooted anti-Catalan sentiments. Thus, many Spanish and European citizens seem to believe that the origin of the conflict is one of limited solidarity and unwillingness to contribute to regional redistribution);6 instead, from a Cata- lan perspective, the current sovereignty process is the product of endemic problems of subordination. A purely individualistic analysis, which takes into account redistribution between citizens, and not between cultural or national groups, can hardly account for this widespread perception. Similarly, the focus on past injustices that the Spanish state refuses to confront tends to stress arguments of corrective justice, rather than of intercultural equality. In addition, it opens the door to a thorny debate on how to interpret historical events (such as the defeat of Barcelona in 1714, which put an end to the War of Succession, and also to the Principality of Catalonia as a political entity with independent institutions). Without denying the interest of a renewed attention to Catalan history, an excessive focus on past injustices diverts attention from what many Catalans perceive as present inequalities. Indeed, Catalonia’s current sovereignty demands are surely connected to more recent political events, which have reinstated the old existential threat and the perception of the state and its main institutions as alien, and systemically biased in favour of the dominant Spanish culture. The most significant example is the 2010 Constitutional Court ruling which struck down many aspects of Catalonia’s 2006 “Statute of Autonomy.”7 Catalans interpreted this ruling as an act of aggression by Spanish institutions against their hard-won political autonomy after the Franco dictatorship, and they began to believe that recognition and a meaningful exercise of self-government is no longer possible within Spain. There is also a broadening awareness that Catalan autonomy is being deliberately weakened by a turn to re-centralization manifested in state policies on a variety of areas over the last decade. The success of the so-called “right to decide” — a motto that has presided over massively attended civil pro-

6. For a discussion on the unparalleled fiscal imbalance that Catalonia suffers compared to other regions of the developed world: http://blogs.lse.ac.uk/eurocrisispress/2013/10/18/a- bandwagon-with-a-purpose-the-independence-of-catalonia/. 7. This would largely be the equivalent to a regional Constitution in a federal state. 198 The Catalan Process tests — expresses this democratic bent of the current pro-independence civic movement in favour of a politics of intercultural equality. However, as it will become apparent throughout the subsequent analysis, this framing also suffers from significant shortcomings; most notably, by dismiss- ing the relevance of identity issues, the “right to decide” is too vague to sustain a secessionist project. In short, contrary to a widespread perception, the rise of secessionism in Catalonia can hardly be grounded in a contingent rise of neo-conservative “nationalistic” bias. Yet, the shortcomings of the predominant paradigms outlined so far undoubtedly play a role in reinforcing such general misconception — or so this article contends. In particular, they help to explain the propensity of political actors and analysts to disdain the whole movement as instigated by populist politicians, who have ir- responsibly exploited citizens’ frustration and fears in the context of a persistent economic crisis. By linking secessionism to populism, and to the re-emergence of ethnic (rather than civic)8 forms of nationalism, this account evades the analysis of a much more complex picture and, instead, strengthens the depiction of the Catalan movement as reactionary. Such a feeble justificatory framework can thus significantly weaken the prospects of consolidating Catalonia as a self-determining minority nation. The main purpose of the following pages is to elucidate these preliminary ideas, emphasizing the contrast between, on the one hand, an approach that focuses on questions of inter-group justice and legitimacy and, on the other, an accent on historical rights (Section II), and/or on the so-called “right to decide” (Section III). But first, the following section begins by spelling out the reasons why the so-called Catalan “sovereignty process” is not exceptional, but rather part of a broader contemporary phenomenon of the politicization of identity, which has brought to the fore the subordinated status of many cultural, linguistic and national minorities in diverse democracies (section I). This preliminary analysis will set the groundwork for a critical analysis of the main objections raised by allegedly progressive sectors against demands for self-determination made

8. Although a rigid distinction between ethnic and civic nationalism in order to evaluate the legitimacy of different national groups is hardly feasible — mainly because of the hybrid incidence of ethnic and cultural factors in most national identities — the Catalan national movement is clearly much more civilly oriented, as Catalans are mostly identified as those who live and work in Catalonia, rather than in terms of ethnic descent. See on this distinction: Kymlicka, Politics in the Vernacular, op. cit.: 39-41; Nielsen, “Cosmopolitan Na- tionalism,” 446-490. On the relevance of both kinds of nationalism in modern conceptions of patriotism, see Hobsbawm, Nations and Nationalism, 80-100. National Minorities, Self-Determination and Human Rights: a Critique of the Dominant 199 Paradigms in the Catalan Case in this context. The article closes by describing the virtues of returning to the language of justice and human rights, which is the genuine vernacular language of our times (Section IV). In particular, it vindicates a revised interpretation of the right of peoples to self-determination in post-colonial democratic contexts. This interpretation goes beyond the need to react against blunt oppression, and acknowledges the moral relevance of more subtle forms of domination that reinforce inter-group structural inequalities and the subordinated status of minority cultures.

10.2. The Politicization of Identity and the Rights of National Minorities

Demands for group rights9 by territorially concentrated minorities in democratic states are commonly embedded in nationalistic discourses, which aim at legitimizing projects of both internal (federalist or autonomist) or external (secessionist) self-determination. History and identity play a central role in such disputes, as is often reflected by the invocation of past collective entitlements that justify the right to preserve the group’s distinct character. In this context, members of national minori- ties10 identify themselves as part of a separate nation, and appeal to their past existence in order to legitimize their claims to achieve, or maintain, a special political status. The Preamble of the Catalan Statute of Autonomy of 200611 is illustrative in this respect. It begins by asserting that the Cata-

9. I understand group rights as a category of rights enjoyed by members in certain groups, by virtue of membership. Leaving aside the contested issue of whether the holder of group rights is ultimately collective, or if the right is reducible to the sum of individual rights of members of a group, the main point is that the existence of the community is crucial to making this legal category meaningful. I have discussed the conceptual debate on group rights in detail in Torbisco-Casals, Group Rights as Human Rights, op. cit. 10. For the purposes of this article, I use these two expressions — “national minorities” and “nations without a state” — interchangeably. The reluctance to use the word “minority” in the Catalan context is linked to the fact that international human rights law grants the right to self-determination exclusively to “peoples” (a vague term which is usually interpreted as synonymous to that of “nation”). However, beyond the legal analysis, the determination of the kind of collective subject designated by the aforementioned concepts is contested. As Kymlicka argues (Multicultural Citizenship. A Liberal Theory of Minority Rights,Oxford, Clarendon Press, 1995: 10) the key issue from a normative perspective is to address the legitimacy of demands for cultural recognition and self-government raised by groups that perceive themselves as historical nations. 11. For the official English version, visit:https://www.gencat.cat/generalitat/eng/estatut/ preambul.htm. 200 The Catalan Process lan people has manifested a constant will to self-government throughout centuries (embodied in such institutions as the Generalitat, established in 1359, and in its own unique legal system), which was maintained even when their autonomous institutions were suppressed after 1714. Therefore, it affirms, Catalonia’s self-government rights are founded not just on the state Constitution, but also on the historical rights of the Catalan people, which justify the unique position and political entity of the Generalitat, which is now Catalonia’s regional government. Such an account is not unique. Demands for self-government or special accommodation by cultural minorities (national, linguistic, ethnic) inevitably lead to the politicization of identity; this is because the aspiration to preserve the distinctive character of such groups is offered as a foundation for such claims. This phenomenon has expanded over the last few decades, partly as a reaction to globalization and its homogenizing effects, and thus it obviously transcends the Catalan case.12 Yet, as indicated, a conventional view links it to a regressive conservative impulse, which is hardly compatible with democratic pluralism. Critics of the turn to secessionism in Catalonia typically point to this flaw, as they interpret it as embedded in a populist discourse that stresses essentialistic conceptions of history and culture. Admittedly, minority nationalism has an important existential component, which is reflected in its typically defensive character, aimed at opposing the homogenizing effects of majority nationalism — implicitly endorsed by dominant cultural groups.13 For this reason, Noam Chomsky has affirmed that the rise of Catalan independentism “is yet an added chapter to the attempts of the Catalan people to save its identity and language after centuries of imposition and assimilationist attempts by the Spanish state.”14 This aspect is crucial to understanding the pervasive-

12. See Taylor, “Politics of Recognition,” op. cit.; Honneth, Struggle for Recognition; Benhabib, Claims of Culture; Patten, Equal Recognition, op. cit.; Appiah, Ethics of Identity; Eisenberg, Reasons of Identity. 13. I have further developed this idea in Torbisco-Casals, Group Rights as Human Rights, op. cit., 99-115. To have a better grasp of minority nationalism as a reactive phenomenon against assimilationist policies: see Kymlicka, and Straehle, “Cosmopolitanism, Nation-States, and Minority Nationalism,” 65-88. 14. Chomsky, Interview Google Talks: https://www.youtube.com/watch?v=Y3PwG4UoJ 0Y&list=PL39B00547634B9451. Other influential thinkers, such as Jürgen Habermas, have also affirmed that the violent disputes occurred in other regions must be interpreted as a consequence of historical exclusion from nation-state building processes. Habermas,Post - national Constellation, 71-72. National Minorities, Self-Determination and Human Rights: a Critique of the Dominant 201 Paradigms in the Catalan Case ness of sovereignty conflicts in democratic states, even in an increasingly globalized world.15 In the Catalan case, although the “nationalist” label is usually reserved for regional political parties or associations, which are seen as representing the interests of Catalonia, Spain’s main political parties generally identify themselves as defining the “nation’s common interests.” But in so doing, they implicitly tend to endorse a conception of the political community rooted in Spanish language and culture, which is far from neutral, as it privileges members of the dominant group. Commentators often fail to recognize this point; namely, that a clash of nationalisms lies at the centre of political confrontations such as that between Spain and Catalonia. Thus, in Spain, intellectuals and politicians from all sides of the political spectrum tend to despise the pro- independence movement in Catalonia, associating its growing force with contingent factors and populist manipulation by local elites. Moreover, critics who portray themselves as “cosmopolitan” (or “anti-nationalists”) often disqualify any attempt at reclaiming the value of national identity as obsolete or even reactionary. Nevertheless, this objection is both incoherent and unfair. Not only does it misrepresent the nationalism of minorities in democratic societies, but it also assesses this phenomenon through the lens of legitimacy standards that the vast majority of states fail to achieve. Thus, the line of criticism just mentioned is based on the false premise that contemporary democracies have stopped representing and upholding specific historical national identities, and should be viewed instead as purely civic associations. The state is thus depicted in idealized terms: as a politically inclusive association of free and equal individuals who voluntarily come together under a common Constitution that establishes their legal rights and obligations. Citizens are thus represented as devoid of particular attachments, rather than as members in specific identity groups. However, this approach simply presupposes the legitimacy of majority nationalism(s), as this is mostly depicted as projecting crucial civic values — as a form of “constitutional patriotism,” in Habermas’ terms. In contrast, the nationalism of minorities is discredited as inherently

15. On this apparent paradox: Keating, and McGarry (eds.), Minority Nationalism. As stated in an article entitled “Dismantling Empires through Devolution”, published in 2014 by The Atlantic, the devolution of powers to sub-state unities with an identity of their own (either by transforming into federal states or by secession) has emerged as a central political phenomenon in the 21st century. See: http://www.theatlantic.com/international/ archive/2014/09/stronger-than-democracy/380774/. 202 The Catalan Process ethnic. Yet the reality strongly contradicts this picture. Far from endorsing a neutral perspective on the “nation,” most democratic states continue to foster a historical and cultural conception of the “common” political identity.16 This is largely transmitted through public education systems that reinforce the idea of shared history, language and traditions that are often associated de facto with the traits of the majority culture, which is implicitly taken as the nation’s identity. Surely, as a political ideal, neutrality can be gradually assessed; but this distinction can hardly be used as a tool to distinguish between the nationalism of states and that of minorities. This last observation points to a crucial weakness in the prevalent negative perception of the claims by minority nations in democratic contexts, which a number of influential contemporary political theorists (including Kymlicka, Taylor, Raz, or Tamir, among others) have tried to expose.17Although a comprehensive analysis would exceed the aims of this article, a short digression into the contributions of what, following Kymlicka, I refer to as “liberal culturalism”18 should be sufficient to stress the inconsistency of dominant liberal orthodoxies. As hinted at above, “liberal culturalism” criticizes the failure of conventional doctrines of democratic liberalism to explore the historical role of nationalism in the process of political identification of states as self-governing units. A central thesis in this respect is that the cultural essence of states has been a concern in order to delimit and defend the legitimacy of political borders. With the aim of avoiding the questioning of sovereignty over a territory, most states, both liberal and non-liberal, have sought to be identified as nations through the diffusion of a single language and culture, of a particular “societal culture,” in Kymlicka’s terms.19 The need

16. I have extensively developed this objection in Torbisco-Casals, Group Rights as Human Rights, op. cit. 17. Some key works are: Margalit, and Raz, “National Self-Determination”, 439-461; Tamir, Liberal Nationalism; Taylor, “Nationalism and Modernity”, 31-55; Miller, On Nationality; Kymlicka, Multicultural Citizenship, op. cit. 18. Kymlicka (Politics in the Vernacular, op. cit., 39) has condensed in this label two recent streams of thought: liberal nationalism and liberal multiculturalism. “Liberal nationalists” assert that it is a legitimate function of the state to protect and promote national cultures and languages existing within its borders. “Liberal multiculturalism” accepts that other non-national or non-cultural groups such as refugees, immigrants, or gays have a legitimate claim to an explicit accommodation within the institutions of the larger society. 19. A “societal culture,” according to Kymlicka (Multicultural Citizenship, op. cit., 76) is a culture which “provides its members with meaningful ways of life across the full range of human activities, including social, educational religious, recreational and economic life, National Minorities, Self-Determination and Human Rights: a Critique of the Dominant 203 Paradigms in the Catalan Case for a public space that will enable the reproduction of the cultural aspects of a certain national lifestyle thus constituted the essence of the right to self-determination.20As is well-known, the republican instigators of the American and French revolutions linked the concept of “people” to that of “nation.” Because republicans insisted that all political power originates from the people, it was necessary to delimit the elements that form the relevant focus of collective self-identification. No one suggested that a random set of individuals coincidentally living side by side could aspire to self-government. In Ernest Gellner’s view, the notion of nationhood satisfied the need for adeeper group identification, shared belonging and mutual recognition, which over time would eventually replace loyalty to local and religious communities as a focus of mutual recognition.21 The existence of an empirical substratum (a common origin, language, history) prior to the state was invoked when liberals began to question the legitimacy of the dominant political structures in the ancien régime. Thus, in France, Abbot Sieyès, in his celebrated pamphlet What Is the Third Estate?, wrote: “the nation exists above all. It is the source of all. Its will is always legal, it is the law itself. (...) It would be ridiculous to suppose that the nation is subject to itself by formalities or by the Constitution whereby it has subjected its leaders. If a nation had had to wait for a positive way to be a nation, it would never have become one. (...).”22 Similarly, when John Jay defended the convenience of building a single nation under a federal government in America in The Federalist Papers, he consciouslydecided to ignore an undeniable empirical diversity, appealing, instead, to the cultural and historical bonds which united all Americans to the same territory.23 “E Pluribus Unum,” the motto suggested by the committee established by the United States Congress in July, 1775, eloquently expresses this idea.

encompassing both public and private spheres. [it involves] not just shared memories or values but also common institutions and practices.” 20. Tamir (Liberal Nationalism, op. cit., 57-77) argues that at the heart of this right “stakes a cultural rather than a political claim” and, therefore, it has to be distinguished from the right of individual autonomy and participation in free elections. Similarly, Margalit, and Raz, op. cit. 21. In Nations and Nationalism, Ernest Gellner develops a functional account to explain this shift. Nationalism, in his view, is not the result of emotional excess or ideological aberration; rather, it is rooted in the structural demands of modern industrial society. 22. Sieyès, Qu’est-ce que le Tiers Etat?, 145-147. 23. Madison, Hamilton, and Jay, Federalist Papers, 91-92. 204 The Catalan Process

Hence, nations exist not in an ontological or empirical sense, but mostly politically; that is, when its members subjectively recognize themselves as part of an abstract community, which thus becomes relevant. Even if common history, language, ethnicity and territory are objective elements that are potentially important for explaining this shared belief, none of them is indispensable. Benedict Anderson vividly depicts the significance of this subjective element in conceiving the nation as an imagined community. 24 What constitutes a nation is thus not “what it is” (empirically speaking), but “what the people believe it is.”25 Such an idea of shared belonging provided the platform from which to sustain aspirations to self-government and independence. Individuals progressively acquired the conviction that they were members of a nation, responsible for each other.26And over time, national belonging became the primary focus of individual self-identification. The ideas of nation and national consciousness thus granted a substratum of cultural integration in the modern democratic state.27 To this extent, nationalism triggered a radical change in the source of legitimacy of political institutions.Despite dominant interpretations and myths, all states have been historically involved in promoting a homogenous conception of the political community in order to legitimate themselves as fully sovereign “nations.” But going back to the discriminatory issues pointed out above, we cannot ignore that the ideal of national unity was artificially promoted through coercive assimilationist projects. In this process, the concept of a civic nation — as a “daily plebiscite,” in the famous expression by Ernest Renan — was obviously marginalized. Ignoring a much more complex reality, states deliberately promoted a uniform version of their history, traditions or customs, as according to the liberal revolutionary dogma, a “nation within a nation could not be tolerated any longer.”28 Far from

24. Anderson, Imagined Communities. 25. Connor, Ethnonationalism, 94. Miller (On Nationality, op.cit.) also focuses on the relevance of shared beliefs, mutual compromise and common understandings in his definition of the nation. 26. So, despite the popular view of nationalism as a social pathology, which tends to promote irrational bonds, we cannot overlook the fact that nationalism has also generated trust, loyalty and solidarity, setting the basis for the consolidation of values that are inherent to social democracy (see Anderson, Imagined Communities, op. cit.; Miller, On Nationality, op. cit.). I have explored this phenomena as well as its implications for global democracy in: Torbisco-Casals,“Beyond Altruism?”457-474. 27. Habermas, “Struggles for Recognition,” 107-148. 28. Arendt, Origins of Totalitarianism. National Minorities, Self-Determination and Human Rights: a Critique of the Dominant 205 Paradigms in the Catalan Case impartial, these projects favoured particular cultures and languages at the expense of the oppression and acculturation of members of minority groups. Policies of forceful colonization and cultural suppression were often justified on paternalistic grounds,29 which stressed the supposed benevolence of “great” nations over those regarded as more “primitive.”30 Needless to say, many minority groups tried to resist such coercive policies. In some cases, resistance was effective, meaning that the preservation of minority identities and languages (at least in the private sphere) prevented the success of forcible integration. These are the groups — generally, minority nations and indigenous peoples territorially concentrated — that still mobilize against the continuing domination of the majority culture, especially in democratic contexts. The consolidation of individual human rights — in particular, the right to vote, freedom of association, or the right to non-discrimination — offers them a platform from which to resist their on-going subordination as members of minority cultures. In spite of the continuing relevance of such disputes, contemporary theories of political justice tend to presume the legitimacy of existing democratic states, and the formal validity of their basic constitutional agreements. As Kymlicka indicates with regards to John Rawls’ theory of justice,31 most theorists tacitly take for granted a model of the polis where the political community coincides with the national one, understood as culturally and linguistically homogeneous. In so doing, the issues of justice arising from cultural and national internal diversity, as well as the harmful effects of nation-building processes for minority cultures, remain basically unaddressed. This criticism clearly applies to the Catalan sovereignty process. Not only do critics tend to overlook the subordinating political dynamics of the past; they also avoid admitting the continued impact of state nationalist policies over cultural and linguistic minorities. This element is crucial. Neutrality remains a political virtue that is far from being a reality. Even if the most repressive policies of the past have been largely suppressed, there are many indirect institutional biases that persist, which typically

29. Mill (Considerations on Representative Government, 296) resorted to this difference to restrict the right to self-government only for the “great” nations. 30. Bader (“Cultural Conditions of Transnational Citizenship”) uses the expression “chau- vinist universalism” to describe this discourse. 31. Kymlicka, Multicultural Citizenship, op. cit., 30-31. 206 The Catalan Process

favour members of majority cultures.32 For example: educational policies tend to prioritize the majority language, history, and culture; the public administration and the military continue to promote a uniform image of collective identity, and it is largely assumed that “the” nation’s interests take precedence over those of “regional” or “national” minorities. In addition, members of minority groups are often expected to show a high level of integration into the dominant culture and language, so that they can fully participate in public life. Their particular identity is accepted as long as it develops in a bicultural or multicultural sense. Otherwise, their opportunities for reaching influential positions and effective representation will remain significantly lower than those of members of the dominant group. If we think of language, for instance, typically, individuals from the dominant linguistic and cultural group are not required an equivalent knowledge of the vernacular languages of minority cultures. In other words, there is no reciprocity expected in the relation between members in both groups, an ideal implied by Patten’s notion of equal recognition.33 In sum, state nationalism continues to prevail in many ways. The separation between state and nation, or between politics and culture, continues to be a myth. Understood as non-intervention in the configuration of sociocultural identity, state neutrality is in fact impossible. As Kymlicka contends, in today’s democracies, states necessarily need to make decisions that inevitably have an impact on shaping cultural and social values — such as decisions on official languages and cultural policies, school cur- ricula, public symbols and holidays, etc. To the extent that the will of the majority determines such political decisions, the interests and identities of minority groups might become systematically marginalized.34 Precisely because of their on-going asymmetrical position, minority identities have retained a subordinated status in socio-political hierarchies. This not only feeds the prejudices and stereotypes about minority cultures originally rooted in plain ignorance, but it also affects individual development and autonomy. Seen in this light, current developments in Catalonia should not be surprising. Moreover, the dismissal of the Catalan movement as “nation-

32. Nancy Fraser refers to these injustices as status hierarchies, which do not necessarily correspond to socio-economic hierarchies. See: “From Redistribution to Recognition?,” 19-49. 33. See note 7. 34. I have tried to tackle the problem of systemic inequalities affecting different types of minorities in “Institucionalización de la diferencia.” National Minorities, Self-Determination and Human Rights: a Critique of the Dominant 207 Paradigms in the Catalan Case alistic” might sound rather cynical. Spain, just as many other states, continues to reaffirm a unitary view of the nation, refusing to grant equal recognition of all languages and cultures in the public sphere. In this situation, it is simply rational for a minority to resort to the same identity strategies that allow the majority cultures to obtain a preeminent position as independent states.

10.3. National Minorities and Self-Government Demands: The Role of Historical Rights

As is apparent from the previous discussion, the demands of collective rights by territorially concentrated minority nations (including indigenous peoples) are generally part of a broader debate on identity recognition and the rights and status of cultural and national minorities. For the reasons outlined, such demands should neither be readily disqualified as regressive, nor misconstrued as an outcome of populist strategies. In the Catalan case, it would certainly be mistaken to associate the current civic and political push for independence with a conservative defence of traditional values and historic identities; rather, social support for the demands of sovereignty stems from a democratic and egalitarian ethos, in that it embodies demands for self-determination and equal recognition vis-à-vis the dominant culture, language and institutions.35 Inequality in this context does not have a mere distributional connotation, in terms of individualised economic status. Instead, it primarily relates to the subordinated status of minority groups as such, experienced by their members in their limited representation in mainstream institutions, as well as through the imposition of autonomy constraints to their collective will to preserve a distinctive status. However, as noted in the introduction, in order to provide a justificatory framework for claims of recognition and political autonomy, it is not uncommon to resort to historical reasons. This normative paradigm fits well into the nationalist narrative, as it allows one to trace the existence of the collective subject throughout history. Thus, in Catalonia, the present self-determination movement has revived an interest in the medieval history of the Generalitat, the meaning of the War of Spanish Succession,

35. I have defended a type of “consequential” neutrality, closer to equal recognition, in Group Rights as Human Rights,op. cit., 124-132. 208 The Catalan Process and the surrender of Barcelona to a French-Spanish Army in September, 1714. This defeat resulted in the dissolution of autonomous Catalan institutions, the removal of Catalan as an official language, and the loss of the internal fueros (codes of law, or constitutions) through the imposition of the Nueva Planta decrees, which aimed at establishing a centralized Spanish rule. In addition, there has been an increasing interest in the more recent repression of political expressions of Catalan nationalism, first by the dictatorship of Primo de Rivera (1923-1930) and then, after a short period of relative autonomy during the Spanish second republic, by Franco’s dictatorship (which, in 1938, abolished both the Statute of Autonomy and the Generalitat), which has regained significance in the current struggle for self-determination. Generally speaking, this renewed public interest in Catalan history plays an important role in situating the current struggle for self-government — and also Spain’s refusal to take the demands of Catalonia seriously — beyond contingent economic factors. Assessing state-building processes from the perspective of their impact on minority cultures undoubtedly offers an alternative standpoint on key historical events. As was to be expected, such revisionist accounts of “national” history tend to be controversial, especially when they challenge the official narratives and understandings. A noteworthy example in the Catalan case is the heated public dispute that surrounded the commemorations, in 2014, of the tercentenary anniversary of the defeat of Barcelona in 1714. Several respected Spanish historians criticized the focus on the relationship between Catalonia and Spain; they generally emphasized that the War of the Spanish Succession was not so much a war between Catalonia and Spain, but a European war between two monarchic dynasties. In their view, the Catalan celebrations, sponsored by the regional government, were founded on a biased interpretation of history intended to advance the independentist movement.36 Another instance of public confrontation over the interpretation of history came about a year earlier (in 2013), when the Centre of Contempo- rary History of Catalonia organised a symposium entitled “Espanya contra Catalunya: Una mirada històrica” (Spain against Catalonia: A Historical

36. Yet 1714 has always been an important symbolic date for Catalan nationalism. Even if unusual for a national holiday, the military disaster first began to be celebrated on September 11, 1886, in order to remember those who resisted and were defeated after the 14-month Siege of Barcelona. The Diada was then suppressed by the Franco dictatorship in 1939, and reinstated in 1980. National Minorities, Self-Determination and Human Rights: a Critique of the Dominant 209 Paradigms in the Catalan Case

Perspective).37 The event was hugely criticized as “political” by Spanish nationalist media and politicians, which pointed at (what they thought) was a faulty opposition of two collective subjects in the title. For in their view, Catalonia is Spain, and “local” historians aimed to distort history with political intentions. It is beyond the aims of this article to examine these particular disputes. The general point that is worth stressing here is the role such critical reviews of the state’s “official” history play in divided democracies. Although attempts by minorities at contesting predominant narratives and myths are likely to be discredited as “ideological,” they actually perform a crucial function in giving visibility to historical events that remain invisible, and, most crucially, to the perspectives of vulnerable groups that are poorly represented in “official” history.38 The intense debates over the status and rights of minority nations and indigenous peoples in countries such as Canada and Australia over the last decade have involved a similar critical reappraisal of history. Apart from giving visibility to episodes of repression and the humiliation of native groups beyond colonization, these processes have been key to recasting the polis in much more conflicting and diverse ways. Yet rather than debilitating the state, revisionist approaches have in some cases served to reinforce minorities’ sense of belonging and of ownership of public institutions and symbols. In Spain, episodes of recent confrontation such as the ones mentioned are the best illustration of the clash of identities (and of nationalisms) that the Catalan “process” has unleashed. To be sure, like all national myths, the siege of Barcelona and the political transformations with the loss of autonomy that unfolded after the defeat of the House of Habsburg contain elements of both truth and fiction and, as such, they can be assessed from different perspectives. In the prevailing account, with a focus on Spanish history, the end of that war marked the beginning of a relatively successful period of state-building; but, from the perspective of Catalans, it marked the end of their self-regulating institutions. The charge of partiality would

37. The controversy generated by this academic symposium reached the point of provok- ing declarations from the State Prosecution Offices, see:http://www.lavanguardia.com/ politica/20131212/54396092565/simposio-espana-contra-catalunya-criticas-denuncias.html. 38. It is worth insisting that the vulnerability is not merely socio-economical, in the sense interpreted by traditional political justice theories. It can also be related to what Patten calls “unequal recognition” (Equal Recognition, op. cit.). This is the kind of injustice that Fraser (“From Redistribution to Recognition?, op. cit.) and Taylor (“Politics of Recognition,” op. cit.) identify as a failure of “recognition,” linked to the perpetuation of status hierarchies manifested in patterns of stereotyped representation or cultural domination. 210 The Catalan Process be equally valid for any narration of events. Critics of the selection of September 11 as the Catalan national holiday should thus also criticize the bias of all public holidays and prevailing myths in Spain. Instead, the latter are typically seen as unproblematic, even if they obviously project elements of the dominant culture. Instead, the exclusionary, non-neutral effects are magnified in the critique of the minority’s nationalism. In short, in the context of struggles for recognition and self-determination, the demystification of a state’s official history may have a positive effect in dignifying marginalized or poorly represented histories that, nevertheless, are important to re-establishing a sense of dignity and belonging for members of national minorities. This is not to deny that there are more and less plausible versions of history, and that some accounts might simply be false. The point is a fairly more familiar one, attributed to Walter Benjamin and illustrative of his influential theory of historical materialism, that “history is written by the victors.”39 Moreover, official depictions and narratives often build on selected episodes and myths that emphasize unity over conflict and diversity, thus concealing the alternative perception of minority groups who were marginalized or defeated. Nevertheless, the importance of revisiting (and challenging) conventional historical narratives does not inevitably mean that there are “historical” rights. Put differently, the fact that Catalonia enjoyed a significant autonomous status for many centuries cannot automatically substantiate the legitimacy of present demands of self-determination (either in terms of internal self-government, or of secession). A number of Spanish constitutional scholars have stressed this point. Francisco Laporta and Alejandro Saiz Arnaiz,40 for instance, deny that the first additional provision of the Spanish Constitution could be summoned to demand the recognition of certain political subjects, or to institutionally guarantee traditional codes of law. This provision establishes that “the Constitution protects and respects the historic rights of the territories with “fueros” (local laws),” and such traditional laws shall be updated, “when appropriate, within the framework of the Constitution and of the Statutes of Autonomy,”;41 yet in the view of the aforementioned scholars, its character is purely discretionary and, as such, does not impose any obligation on the state.

39. Benjamin, Illuminations, 253ff. 40. Saiz, and Laporta, Derechos históricos en la Constitución. 41. For an official translation of the Spanish Constitution, visit: http://www.congreso.es/ constitucion/ficheros/c78/cons_ingl.pdf. National Minorities, Self-Determination and Human Rights: a Critique of the Dominant 211 Paradigms in the Catalan Case

To be sure, such a restrictive interpretation can be contested on the grounds that it makes such constitutional provisions empty of content. But, beyond this interpretive debate, it seems to me that the underlying explanation for such restrictive approaches has to do with a more general hostility towards historical rights. As Laporta explicitly argues, the Con- stitutional provision described opens the door to distorting the right to equality of Spanish citizens.42 To be sure, as a legal category, the notion of “historical rights” echoes somehow the idea of privilege (etymologi- cally, “private” law), which inevitably clashes with the underlying ethics of constitutional and human rights doctrines as universal, homogenous rights. Here, it is worth recalling that one of the most persistent objections by Spanish nationalist sectors against the Catalan Statute of Au- tonomy is the symbolic but crucial statement in its preamble that Catalan self-government derives not only from the Spanish Constitution (which delegates some powers) but also from Catalonia’s historical rights. As the statement reads: “Catalonia’s self-government is founded on the Constitu- tion, and also on the historical rights of the Catalan people, which, in the framework of the Constitution, give rise to recognition in this Statute of the unique position of the Generalitat.”43 As is obvious, this declaration reinstates the existential question: the status of Catalonia as a “nation,” which the Spanish state denies, and its right to self-government, which is taken as pre-dating the 1978 Spanish Constitution. However, as a framework for justifying aspirations to self-government by minority nations, the accent on historical rights suffers from significant shortcomings. To start with, it has been associated with an incoherent social ontology; namely, the idea that there are collective entities, non-reducible to individual subjects, which exist over time and are entitled to inalienable rights. This defence seems to assume some sort of social holism, unintelligible from the viewpoint of the liberal rationalist basis of democratic rights. On the other hand, critics point to the potential of this collectivist framework to instrumentalize the individual for the sake of preserving an idealized version of the collective. Very briefly: if a given historical community — a “nation” — is entitled to self-government in order to preserve their tradition, languages, and way of life, then, implicitly, it seems as if its members have the duty to preserve such communal

42. See Saiz, and Laporta, Derechos históricos en la Constitución, op.cit. 43. http://web.gencat.cat/en/generalitat/estatut/estatut2006/preambul/. 212 The Catalan Process identity. But, again, such a duty would be hardly compatible with a liberal approach to rights. Likewise, as an argument to justify self-government claims, historical rights have a limited reach, mainly because they conceive of such claims as a matter of corrective, rather than redistributive, justice. It is thus difficult to argue that self-government rights should be extended beyond the substantive realm that once defined the scope of autonomy; nor is it clear how to make sense of secessionist claims within such a framework, as arguments based on compensatory or corrective justice can hardly capture the essential element of such claims. An analogy might be enlighten- ing here. Think of the case of women who are victims of violence; as a group, women typically do not only demand just compensation, but they also assert their right to live freely in a society free from violence. For the same reason, many national or cultural minorities who have suffered from strong acculturation or assimilationist policies do not just struggle to obtain a remedy for past offenses; they mainly demand to be recognized as collective subjects entitled to freely determine their future, free from hegemonic pressures by the dominant/majority nation. Once again, the Catalan case illustrates such limitations. To a great extent, the heated debates on historical rights tend to revolve around the relative plausibility of the historical account outlined. Given that Spain refuses to recognize Catalonia as a “nation,” and rejects any responsibility for past attempts at abolishing Catalan institutions and language, efforts are made to trace the existence of the nation and its political institutions, as well as to identify past injustices as a ground for secessionist demands. However, such efforts usually deflect attention away from presentproblems of recognition and redistribution affecting members of the minority nation. To be sure, history is fundamental to making current mobilizations meaningful, yet in itself, it cannot justify normative propositions. Put differently: the fact that Catalonia was a relatively autonomous political unit in its own right before 1714, and continued to struggle to preserve its institutions and language throughout centuries, helps to explain the phenomenon of Cata- lan nationalism. Yet, in itself, it cannot justify the attribution of special rights today. No (independent) reason derives from tradition. Otherwise, for instance, men could appeal to historical rights to justify their right to mistreat women and to perpetuate a patriarchal model of society. The protection of tradition requires an additional normative reasoning. Having said that, the flaw in Laporta’s and Saiz Arnaiz’s objection against the category of historical rights (and its use to justify the demands National Minorities, Self-Determination and Human Rights: a Critique of the Dominant 213 Paradigms in the Catalan Case by minority nations) is the fact that it avoids submitting state nationalism to the same standard. In fact, other scholars, such as Fernando Savater and Félix Ovejero44, self-identified as “anti-nationalists” or “cosmopolitans,” voice a similarly fallacious criticism: they simply presuppose the existence of Spain as a nation, and tacitly assume as valid its sovereignty over its current borders. Their objections are only addressed at self-determination projects by minority nations. To this extent, the mainstream critique is incoherent, for it simply hides a nationalist exclusionary model that favors linguistic and cultural majorities de facto and takes the legitimacy of the state for granted.45 In this context, there is a pragmatic rationality behind vindicating historical rights, as this allows minority nations to resort to the same justification that the state has historically used, and continues to use, to legitimate itself. To the extent that the Spanish state continues to deny the subjective self-identification of most Catalans as a “nation,” and to use this denial strategy to avoid facing the challenge posed by Catalan demands, resorting to historical rights is relevant. Put differently: resorting to history becomes unavoidable in this context because minority nations are pushed to “prove” their existence as collective subjects, as a pre-condition to exercising their right to self-determination. Instead, the existence of majority nations is presupposed de facto, and their collective rights are taken for granted.

10.4. Democracy, Self-Determination and Secession: A Critical Appraisal of the “Right to Decide”

For the reasons laid out so far, historical rights offer a deficient foundation for demands for self-determination, especially those involving the right to secede and build a new polity. Instead, democracy-based arguments, which point to the abstract entitlement of a given demos to choose its political future, appear to offer a more promising framing. In particular, the emphasis on the right to vote and on collective freedom make it possible to overcome the anti-liberal stigma that, as elucidated in the precedent section, is embedded in nationalistic discourses.

44. See Savater, Contra las patrias, and ¡No te prives!; Ovejero, Contra Cromagnon. 45. On the particularism that underlies the ideal of universal citizenship: Young, “Polity and Group Difference,” 250-274. 214 The Catalan Process

Precisely because the sovereignty movement has solid social roots in Catalonia, democratic arguments play a central role. In particular, the so-called “right to decide”46 has become the main legitimizing motto to demand the right to hold a (legally binding) referendum on secession. Moreover, as a framing for the demands of sovereignty, the “right to decide” has managed to engage a wide range of social groups and political sectors, including leftists, feminists, and anti-nationalist groups. The over- whelming success of the Plataforma pel dret a decidir (“Platform for the Right to Decide”)47 over the last decade can surely be credited to such an inclusive vocation. The Platform was created in 2005, and brought together about 700 associations, 58 municipalities and thousands of individuals. It played a key role in mediating between civic associations and political parties in order to demonstrate against what was increasingly perceived as an attempt by the Spanish government to impair Catalonia’s political autonomy. The organisational success of the two most massive protests in Barcelona since the end of Franco’s dictatorship best illustrates the social permeation of the movement. The inalienable right of the Catalan people to decide on its political future was expressed in the motto which presided over the first march, in February, 2006: “We are a nation and we have the right to decide.” The second march took place in July, 2010, when over 1.5 million people gathered peacefully around a similar motto (“We are a Nation. We decide”) to protest against the Spanish Constitu- tional Court’s judgment, which had just declared significant portions of the Catalan Statute of Autonomy to be unconstitutional. This remarkable demonstration, which expressed genuine public outrage at that decision, had the support of the majority of Catalan political parties with parliamentary representation48 and of the main labour unions. The event certainly marked a turning point in Catalonia’s conflicting relations with Spain; more specifically, it opened a new phase of hostility that reinforced the (once-marginal) idea that Catalonia would never be able to enjoy recognition and a significant level of self-government as part of Spain.

46. Jaume López, a Catalan scholar and activist, has theorized this right in a sophisticated way, stressing its difference from the right to self-determination. In what follows, my criticism mainly focuses on López’s understanding of the right to decide; see López, “Del dret a l’autodeterminació al dret a decidir”; also, López, and Barceló, Derecho a decidir. 47. Visit: http://plataformapeldretdedecidir.cat. 48. Except the conservative Partido Popular and the pro-Spanish liberal party Ciutadans, which have low support and representation in Catalonia. National Minorities, Self-Determination and Human Rights: a Critique of the Dominant 215 Paradigms in the Catalan Case

Since 2010, systematic attempts by the state to disregard, discredit, and repress the pro-independence movement, while refusing to engage in a constructive dialogue to restore damaged trust, have definitely strengthened the call for a referendum on secession. Nowadays, the Catalan Na- tional Assembly,49 a civic organization that openly seeks independence, clearly invokes democracy-based arguments as the main grounds for demands of full sovereignty, which by now have significant social support. In January, 2013, the Catalan Parliament itself adopted the Declaration on the Sovereignty and the Right to Decide of the People from Catalonia, thus officially endorsing this framework.50 Reinicia (“Re-initiate”), a more recently created platform51 publicly presented as a citizen’s initiative to make the right to decide a reality, focuses on promoting a Constitutional Convention. According to recent polls,52 the majority of more moderate citizens who reject secessionist demands also express their support for Catalonia’s right to decide its political future through a referendum. However, even acknowledging its merits as a tool for political and social mobilization, the “right to decide” faces significant shortcomings as a sole validating frame for Catalan sovereignty demands. First of all, in the context of the domestic constitutional dispute in which this framing has been developed, there is a tendency to stress legalistic arguments; secondly, while the prevailing conceptions of the right to decide tend to distinguish it from the right to self-determination, this distinction is unclear, and, in my view, might actually impair the case for secession. As for first the objection, to a great extent, debates on the right to decide have largely focused on the compatibility of this right with the Spanish legal framework. Hence, the Platform for the Right to Decide defines this right as a legal principle that justifies Catalonia’s aspirations

49. Visit: https://assemblea.cat/ [accessed, October 2017]. 50. This declaration was approved by the Catalan Parliament on January 23, 2013 by a majority (85 votes in favour). It explicitly declared the opening of the process that would lead to the implementing of the so-called “right to decide.” Following an appeal from the Spanish Government, the Constitutional Court suspended the declaration and later unanimously decided against it in March, 2014 (declaring it null) on the grounds that the principle of sovereignty that affirmed: “the Catalan people have, due to democratic legitimacy, the character of a sovereign political and juridical subject” was unconstitutional. However, the Catalan Parliament considers it valid, because “political will cannot be suspended.” 51. Visit: http://reiniciacatalunya.cat. 52. Visit: http://www.catalannewsagency.com/politics/item/85-of-catalans-in-favour-of- calling-a-referendum-according-to-latest-poll. 216 The Catalan Process

to independence. Mercè Barceló and Jaume López,53 co-editors of a recent book that explores the scope and content of what they define as “a new right,” contend that its recognition doesn’t pose any serious challenge for the Spanish constitutional framework. Some contributors to this discussion go further to affirm that the validity of the right to decide can be induced from the right to vote and from abstract constitutional principles such as the principle of democracy.54 This reasoning often leads to defending the legality of holding a referendum on secession without previous constitutional reform. However, the problem with this argument is not only that it contrasts with the prevailing understanding of Spain’s main political parties, and of the Spanish government itself, but that it also contradicts the authoritative interpretation given by the Spanish Constitutional Court. As it happens, all Catalan proposals to hold a referendum or consultation (binding or non-binding) have been refused as constitutionally invalid so far. Without digging into the specific legal arguments that are offered in the domestic debate, the main problem with the legalistic approach is that the discourse on the right to decide has fed the characteristic constitutional fetishism that dominates Spanish legal culture. In this culture, legitimacy tends to be reduced to legality, and thus positive law, specially the constitutional text, is seen as an unassailable source of validity. Reasons of moral legitimacy and democratic contestation are accepted in this context only if they do not call the existing legal framework into question; to this extent, the academic attempt by some Catalan scholars to suggest an interpretation of the right to decide that could be compatible with the constitution tends to develop into sterile conceptual discussions that fail to address the underlying political problem. Moreover, arguments of legality have a limited force in a context where the institutions in charge of interpreting and applying the law have lost credibility in the eyes of minorities, which increasingly perceive them as biased in favour of the dominant majority. Domestic law, in this situation, offers an inadequate framework to tackle a broader political pro blem — that of accommodating Catalan’s interests within Spain, or else allowing the exercise of the right to exit. For this reason, the strategy of judicializing the conflict pursued by the Spanish government is unlikely to be successful. The criminal accusations made against respected high-

53. López, and Barceló, Derecho a decidir. 54. Vilajosana, “Principi democràtic,” 178-210. National Minorities, Self-Determination and Human Rights: a Critique of the Dominant 217 Paradigms in the Catalan Case profile public figures (among them, the very ex-president of Catalonia, Mr. Artur Mas) for having fulfilled their electoral promise of allowing a (non-binding) public consultation on independence have been widely denounced as a debased attempt to repress political expression. Justify- ing such criminal prosecution on the need to protect the rule of law is a weak strategy.55 Political thinkers of all times have reflected on the limits of the rule of law, and of legal obedience, when there is a clash between alternative ideas of political justice, or when legal authority is questioned. Law, in the end, is a result of politics and a cultural product as well, and it is thus far from neutral. In short, proponents of the “right to decide” might plausibly interpret this right as inherent in the democratic principle recognized in article 1.1 of the Constitution, as well as in other basic civil and political rights, such as the right to political participation and the right to vote. Nevertheless, such an understanding is unlikely to be accepted by the state or by the Constitutional court. To be sure, in its Judgement 42/2014 on the Catalan Declaration of Sovereignty, this court seems to assume that a constitutional interpretation of the right to decide is possible; yet the ruling practically associated it with the right to be consulted, and avoided engaging with crucial issues such as who would be the subject entitled to decide, or whether the state should authorise a referendum on secession. As a result, the on-going debate among legal scholars on the “constitutionality” of the right to decide has proved inconclusive. Finally, the second potential problem with basing demands for independence on the right to decide has to do with the conscious attempt by its proponents to distinguish it from the more familiar framework of the right to self-determination.56 The underlying assumption is that the focus on the former right accentuates the relevance of the present will expressed by the Catalan people, instead of stressing contested statements about history and the existence of the nation. Yet prioritizing only the voluntarist element — namely, the Catalan citizens’ freedom to choose their political future — proponents of the right to decide do not tackle the central legitimacy or morality problem of the content of the action. The discussion usually drifts to questions of a pragmatic nature — for example

55. Together with Nico Krisch, I have addressed the limits of this legitimizing strategy in:http://blogs.lse.ac.uk/europpblog/2014/11/04/using-spanish-law-to-block-catalonias- independence-consultation-may-simply-encourage-caalans-to-construct-their-own-alternative-legality/ 56. See the works by Jaume López cited above in note 52. 218 The Catalan Process the economic feasibility of an independent Catalonia, or the potential advantages of living in a relatively small state. Clarifying these matters is undoubtedly relevant to making a decision. However, the central role of discussions on the advantages of secession feeds the stereotypical views of the independentist movement mentioned in the beginning of this article (as a non-solidary movement manipulated by local elites). This reinforces the accusation made by detractors of the sovereignty process, according to which the defence of secession is limited to taking strategic decisions based on self-interest. At this point, the usual analogies between secession and individual divorce get complicated. Nowadays, most democratic legal systems would recognise my freedom to decide whether to divorce from my husband without asking for further justifications; I could thus choose to divorce for absolutely banal or selfish reasons (because I want to experience the pleasure of being alone again, or because I want to be free from having to negotiate where I go on holiday); yet when my choice strongly affects third parties (children, for instance; or a handicapped ex-husband, whose quality of life will severely deteriorate because of my choice) it is difficult to see a purely selfish reason as legitimate. The same underlying problem arises when the right to choose is summoned as a criteria to resolve other contested social issues; for example, the anti-vaccination movement opposes compulsory vaccination in many countries, arguing that parents should have the right to decide whether they vaccinate their children or not. However, a purely libertarian defence — without any attempt at proving why vaccines can cause more harm than good — is obviously controversial because it simply ignores the potential harm to others. With regards to the “right to decide,” it is easy to object to the tendency to ignore the inter-dependency of different Spanish communities and the potential negative consequences of majority decisions (in Catalonia) for other potentially affected subjects (including internal minorities). To sum up, the right to decide has important flaws that can significantly weaken its initial appeal. First, the attempt at conceiving it as a constitutional right implicitly included in the right to democratic participation appears as feeble, especially if its exercise entails the breaking-up of the democratic state; secondly, even if only considered as a moral right, its predominant libertarian leaning leads to ignoring the reasons (relating to history, identity, and inequalities between national groups) that have given rise to political movements for independence and which justify the specific content of their demands. National Minorities, Self-Determination and Human Rights: a Critique of the Dominant 219 Paradigms in the Catalan Case

In the context of the conflict between Spain and Catalonia, the discourse on the right to decide can hardly offer an answer to fundamental questions of legitimacy which have to do with “why divorce.” There is no doubt that the weaknesses of this framework have been exploited by critics of the sovereignty process. The official position of the Spanish government has been that a referendum on secession would be unconstitutional, as the Spanish Constitution proclaims the unity and indivisibility of Spain. Yet, the same official representatives have often added that, if a referendum could be legally held, all Spanish citizens (and not just Cata- lans) should be entitled to vote. Against this objection, proponents of the right to decide oppose that Catalonia is a demos because it has its own self-government institutions. But this answer is not very convincing, as it simply presupposes what must be demonstrated — that is, that Catalonia is a political subject, a status that the state doesn’t recognise. The circularity of this argument can only be dissolved by acknowledging that the problem of identifying the relevant demos cannot be disentan- gled from the complex questions of history and identity that proponents of the right to decide seek to circumvent. Yet if this is accepted, the attempt at dissociating this right from the more familiar human right to self-determination loses all meaning.

10.5. Reclaiming Human Rights as a Justice-Based Framework: the Ongoing Relevance of the Right to Self- Determination of Peoples in Post-Colonial Contexts

As stated in the beginning, this article’s main contention is to reclaim the relevance of the human rights paradigm in tackling the complexities that arise in current sovereignty struggles of minority nations in democratic contexts. As the previous section has hopefully demonstrated, much of the persuasive power of the so-called “right to decide” stems from its libertarian connotations. Yet, once we take our constitutive relations with others into account, and the possibility that exercising one’s freedom might harm third parties, this appeal diminishes significantly. The critical question is not whether Catalonia has the right (legal or moral) to decide, but why it is legitimate to allow the Catalan people to exercise the right to (external) self-determination. This question takes us back to the shared framing of past independence movements. In Catalonia, as explained, defenders of the right to 220 The Catalan Process decide have insisted on disentangling this right from the right to self- determination of peoples, recognized as a human right by the United Na- tions. This insistence stems from the uncritical acceptance of conventional interpretations of self-determination, which are linked to decolonization processes, or otherwise require particularly grave circumstances of oppression, including grave violations of individual human rights. This is obviously not the case in Catalonia, as Spanish officials often point out ironically in their blunt dismissal of social mobilizations demanding a referendum. Nevertheless, the orthodox interpretation of the right to self-determination has been significantly challenged over the last two decades, especially with a view to taking the land claims and self-government demands of indigenous peoples around the world57 into account. In this area, significant progress has been made with regards to reinterpreting self-determination beyond decolonization. In the new emergent framework, the duties of states are not only negative — of tolerance, or “non- interference” in the internal affairs of indigenous peoples — but also positive — of active recognition and protection. Among these duties, we could highlight the need to create inclusive institutional and legal frameworks, which are able to recognize the constitutive equality of all cultural communities that form a given state.58 A number of influential international legal scholars and political theorists have argued in favour of expanding the predominantly restrictive interpretations of the right to self-determination of peoples. Will Kymlicka has gone further to argue that there are no substantive reasons to preserve a strong differentiation between indigenous peoples and national minorities.59 The evolution of the international law of human rights could thus move towards recognising basic collective rights for minority nations. Yet this is an emergent shift that is far from consolidated, as the ultimate justification of the political claims made by these groups remains unclear. To this extent, the conflict between Spain and Catalonia offers

57. After 20 years of negotiations, the United Nations General Assembly approved the Declaration on the Rights of Indigenous People in 2007. This is formally not a binding text, but it settles minimum parameters of respect of the rights of indigenous peoples that we could see as embedded in a robust idea of internal self-determination. 58. See, for example, Ropestroff,Politics of Self-Determination, op. cit. I have tackled the challenge that the recognition of collective rights to indigenous people in Torbisco-Casals, Pluralismo jurídico y derechos humanos, 62-85. 59. Kymlicka, “Internationalization,” 1-32. National Minorities, Self-Determination and Human Rights: a Critique of the Dominant 221 Paradigms in the Catalan Case an interesting laboratory for analysis. So far, however, the predominance of the framings examined throughout the previous sections has made it impossible to maintain an open and constructive dialogue with a focus on legitimacy. In my view, only such an approach, which would take Cata- lonia’s right to self-determination seriously into account, as well its equal status as a nation, might be able to succeed in preventing secession. For one thing: as argued in the first section, underlying many of the current struggles for self-determination by minority nations lies an struggle for equal recognition of subordinated cultures and identities. Secession, even a unilateral one, should emerge as a legitimate action in a democratic context whenever the state insists on subjugating its national minorities, denying them equal recognition as collective subjects as well as the right to internal self-determination (including the attribution of the necessary powers to allow their cultural and linguistic development). Hence, the right to secession would work as a shield against the impulse of majorities to oppress minorities. This internal self-determination model, interpreted as a human right, takes the intrinsic interdependence of individuals and peoples in a globalized world into account, where identities are usually hybrid and permanently under construction. It also assumes that the creation of authority in the 21st century needs to appeal to reasons of legitimacy, rather than to force or the exercise of power. Obviously, in democratic contexts, instances of blunt oppression against a national minority are rare; yet these groups often suffer from more subtle forms of domination, such as when they are the object of politics of toleration (which denies the equal recognition of the other as the subject of rights), or of cultural and linguistic assimilation (aimed at slowly destroying the identification with the group). Such policies of indirect discrimination continue to be practised in Spain, situating Catalonia in a systemically subordinated position which is taken as “normal.” Institu- tions and normative interpretations are often disrespectful of cultural differences and linguistic pluralism, and tend to be biased in favour of the majority. The recurrent attempts by the state to subvert the linguistic model prevailing in Catalonia show this partiality. Catalan public education is mainly provided in Catalan (although the model of linguistic immersion also actively promotes bilingualism, as well as teaching English as a third language). All Catalan education laws have assumed that this is a crucial factor for integration and this is exactly the same declared goal of teaching in Spanish in, say, Madrid. Yet Catalan legislation has systematically been attacked as promoting “Catalan nationalism” and be- 222 The Catalan Process ing “exclusionary.” In the opinion of many in the ruling People’s Party a Spanish-speaking family residing in Barcelona should have the right to choose a Spanish education for their children. However, it is equally obvious to them that Catalan parents residing in Madrid should not have the same right for their children. The question is: if a Spanish diplomat moves with her family to London or Berlin, would they raise the same demand to local authorities? As can be seen, this reasoning simply assumes that members in the linguistic majority are entitled to linguistic privileges that are simply not available to members in minority groups. For Catalans, this reaffirms the exclusionary vision of the state as a mirror (and as a property) of the dominant cultural majority. External self-determination should be legitimate in these situations, not because people have the right to decide, but because a fair multinational state should be founded on a politics of recognition, which accepts the equal status of all nations and cultural communities, rather than on a politics of domination, or toleration, of majorities over minorities. Faced with the impossibility of reforming the self-understanding of the state as a truly plural political community, it is simply rational to choose to exit. In other words, secession is justified not because of a daunting existential risk, but because the burden of a subordinating relation that perpetuates vulnerability is simply unjust.

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11 Sovereignty, Fragility and Time in the Catalan Process

Joan Vergés Gifra

11.1. Introduction

A series of approaches have dominated the burgeoning body of academic literature on the Catalan “process.” On the positive side, all sorts of analysts have carried out comparative exercises on the movement, along with counterfactual exercises related to the Catalan Republic and the difficulties it would face. On the normative side, the disquisitions on the issue focus almost exclusively on legal and moral perspectives. Questions have been addressed such as the following: Does the right to decide exist as something different from the right to self-determination? Does international law provide for a unilateral secession? In what cases is a unilateral secession morally justified? and etc. By contrast, much less literature has been published addressing issues beyond the positive/normative dichotomy. We are referring above all to questions related to ethical (in contrast to moral) and existential problems.1

1. In all likelihood, this state of affairs is related to the default approach adopted by aca- demia. In the body of academic literature that has been generated to date on the process, the dominant perspective has been the etic one; in other words, academics have analysed the issue from the “outside.” They have not approached the issue from “within,” from an emic perspective. If they had done so, perhaps they would have realized the importance of ethical or existential problems in the Catalan process. Regarding the etic/emic distinction, see Pike, Language; Harris, “History and Significance,” 329-350. 228 The Catalan Process

Meanwhile, one can hear important stakeholders in the process repeatedly state that the Catalan demand has nothing to do with nationalism but rather is solely related to democracy: the Spanish state should honour the democratic ideal by allowing a referendum in Catalonia, and should accept the results out of respect for democracy. In this paper, I will approach three aspects of the process that tend to be ignored by the mainstream discourse we’ve just referred to but which nevertheless are highly illustrative of the nature of this conflict. First of all, we would like to pose the question of what to make of the fact that a significant proportion of Catalan society is striving to achieve sovereignty. Secondly, we will place the spotlight on a particular dilemma (which we will call existential) posed by the process. Thirdly, we will highlight the importance of shared memory and time when it comes to explaining the emergence and strength of the process. The analysis of these three aspects will strengthen the idea that the process can only be explained (and, therefore, can only be understood and justified) by the fact that a national reality exists in Catalonia; that is to say, a national subject. Finally, we will draw the conclusion that the “process” must be understood above all as a process of national construction.

11.2. To Be Sovereign

According to the polls, there is currently a technical draw between those in favour of Catalonia becoming an independent state and those in favour of it remaining within Spain.2 In the transcendental (so-called “plebiscitary”) elections of September 27, 2015, the parties which cam- paigned on an explicitly pro-independence ticket obtained 47.8% of the vote, while the parties clearly opposed to the process received 39.17% of the vote. The parties which did not campaign for independence but which defended the holding of a referendum in order to settle the territorial issue achieved 11.45% of the vote. It therefore remains unclear which way the Catalans would vote if a binding referendum on self- determination were actually to be held. However, what is clear is that a sizeable majority would like the issue to be settled through a vote.

2. According to the first study of the Centre d’Estudis d’Opinió (Centre for Opinion Stud- ies), carried out in 2016, 45.3% of those questioned want Catalonia to become an independent state, while 45.5% do not want it to. Sovereignty, Fragility and Time in the Catalan Process 229

Arguably, between 75% and 80% of the population are in favour of this solution, which is the “democratic” solution adopted in Quebec and Scotland. In practice, this means that a large majority of Catalans attribute to themselves the capacity to decide whether they should become a sovereign people. An important objection can be raised against this position, namely that it makes no sense at all today to seek independence given that it no longer makes sense to believe that any political entity can be sovereign. We repeatedly hear in the media that “the trend is towards integration, not segregation.” This message is not only stated by politicians and commentators opposed to the process; it is also widely disseminated by academics. According to Josep M. Colomer, for example, “Many of the traditional tasks of states are now in the hands of the European Union. Consequently, the Spanish state and all the other member states of the EU and of the Eurozone, as well as of NATO and various global institutions are no longer de facto sovereign states.”3 This discourse connects to an important current of analysis according to which globalization (within which the logic of the EU must be situated) sounds the death knell of the traditional state established in the Peace of Westphalia in 1648. Accord- ing to some authors, even when states flex their Westphalian muscles by erecting walls and placing borders here and there, what they are really demonstrating is the extent to which the Westphalian notion of sovereignty has lost its meaning.4 Is it true that it makes no sense to strive for sovereignty today? If it is true that the trend is towards integration and interdependence, why are so many Catalans striving to create an independent state? Is their demand anachronistic and absurd? The expression “sovereign” only appears three times in the Spanish Constitution but it has major legal implications.5 As such, the “Spanish nation” is subject to international rules and treaties in the exercise of

3. Our italics and translation. The text goes on to say the following: “They have all ceded or lost, to a greater or lesser extent, their exclusive decision-making powers regarding public policies, including defence, security, border control, currency, tax and finance.” Colomer, “Basta ya de Estados” [“Enough States”]. 4. See Brown, Walled States. 5. Preamble, article 1 and article 8; meanwhile, article 117.1 states that “justice emanates from the people” in the sense that the legitimacy of justice depends on us being able to believe that it is imposed by the people as a whole. 230 The Catalan Process

its sovereignty.6 Meanwhile, the concept of sovereignty constitutes the grounds of ruling 31/2010 of the Constitutional Court of Spain and of its major objections to Catalonia’s right to secession. The body which has formulated these objections, the Constitutional Court of Spain, is in itself one of the clearest demonstrations of the existence of a power of a sovereign nature. As regards European legislation and the fact that the Spanish state forms part of the EU, it is true that certain powers no longer form part of the remit of the Spanish state and that EU law prevails over the national law of member states.7 However, it is equally true that the EU has these exclusive powers by virtue of the principle of attribution8 and that any state may unilaterally withdraw from the Union.9 Meanwhile, “national security” (the cornerstone of the traditional notion of sovereignty in traditional political thought stretching from Thomas Hobbes to Max Weber and Carl Schmitt) remains the exclusive power of each member state.10 The above would seem to indicate that the EU constitutes a very special case of a federation of sovereign states.11 It is therefore not surprising how widespread the idea is that the concept of sovereignty is no longer valid or that it identifies a mistaken or irrelevant political project. Nevertheless, it is possible that it means something different; or perhaps three different things: (i) that states are successively losing power; (ii) that the Westphalian notion of sovereignty no longer serves to characterize the sovereignty of present-day states; or (iii) that it would be better to forget about the idea of sovereignty. This third possibility identifies a position which is very similar to the arguments put forward by certain proponents of cosmopolitanism. We will not dwell on this third position here but only on the first two. As far as the second argument is concerned, there appears to be quite a wide consensus that the sovereignty of states has undergone a profound

6. Spanish Constitution, articles 10.2, 39.4, chapter III “On International Treaties” art. 93-96. 7. The EU has exclusive powers over customs, union, internal market competition rules, monetary policy, etc.; it has shared powers with member states and powers to support them; in addition, it has special powers related to the coordination of economic policies, external policy and common security. 8. Article 5.2 of the Treaty of Lisbon. 9. Article 50 of the Treaty of Lisbon. 10. Article 4.2 of the Treaty of Lisbon. 11. See section 4 of the chapter by Laura Cappuccio in this volume, concerning the doctrine of the Italian and German constitutional courts with respect to the Treaty of Lisbon. Sovereignty, Fragility and Time in the Catalan Process 231 transformation in recent decades, or at least that it is in the process of being substantially transformed.12 John Rawls, for example, argues that prior to World War II, Westphalian sovereignty assumed two things: firstly, that a sovereign power could wage war for reasons of self-interest (war, as Clausewitz famously said, is the continuation of politics by other means); and secondly, that it could do whatever it liked to its subjects and citizens and no other state was entitled to interfere. Both arguments were rendered untenable by the barbarities of the 20th century. As such, human rights are seen today as a sacrosanct principle with which the rulers of a state must comply and it is considered that war can only be justified on the grounds of self-defence or on humanitarian grounds.13 In addition to these two modifications, it is clearly necessary to take into account the extent to which globalization has altered the image of states and the functions normally attributed to them. Consequently, various expressions have been coined to better define the present-day nature of sovereignty, such as post-Westphalian sovereignty, post-modern sovereignty, post-national sovereignty (or post-national states), soft sovereignty (in reference to the “soft power” concept developed by Joseph Nye). However, if the above is true and the notion of Westphalian sovereignty no longer serves us, it is no less true that the fact that the notion has undergone significant changes does not mean that it no longer makes sense. Indeed, it is the other way around: the fact that the notion of sovereignty has undergone changes and has had to adapt to the political realities of the time means that it actually makes sense to use it. The argument according to which it is no longer worth discussing Westphalian sovereignty does not mean that we cannot discuss another meaning of sovereignty. What this specific meaning might be does not concern us here. Suffice it to say that this new kind of sovereignty (the sovereignty held by present-day states) is what Catalans aspire to achieve through “the process.” Meanwhile, the idea that the sovereignty of states is shrinking because they have less and less power and increasingly depend on what occurs in other countries has gained attractiveness. Therefore, the argument continues, it is absurd to wish to become a new state if the only way to gain power is to become part of a supranational entity. This argument is often accompanied by a demonstration of the extent to which globalization is an inescapable reality or of the extent to which the decisions of the member

12. Walker, Sovereignty. 13. Rawls, Law of Peoples. 232 The Catalan Process states of the EU, for example, depend on decisions made in Brussels. Some authors have been pointing out for some time that presenting the problem of the geography of power from a global/national perspective is not analytically useful and, furthermore, it conceals ideological dynamics.14 Whatever the case, in order to calibrate the strength of the argument, it is essential to make two considerations, one empirical and one conceptual. Is the power of states shrinking? It is not easy to tell. In some areas, states have indeed surrendered a certain amount of autonomy in contrast to the power wielded in the past (for example, in war-related matters). However, it is also necessary to take into account the huge expansion of the rule of law in today’s accelerated societies. The fact is that the law reaches many more places than it did before. In many aspects of everyday life, positive law is necessary or essential. For example, in matters governed in the past by customs, common sense or religion, we now expect there to be a law, protocol or regulation in place, ultimately sanctioned by public authorities. Meanwhile, the idea that states have lost power to supranational entities (as in the case of European states in respect of the EU) should be considered carefully. Apart from the fact that supranational bodies are based on and directly depend on the effective power of states, it is also evident that these bodies possess a power that did not exist prior to the existence of the “federation.” A union of a set of states is not only the sum of the strength of these states, it is something more: a different type of power is created. This is something which the early proponents of social contract theory understood clearly (the opening of Hobbes’ Leviathan is a case in point), as did some theorists of neoliberalism (we recall how Hayek and Friedman opposed the welfare state, arguing that it endangers individual freedom). The social contract is neither merely aggregative nor merely productive. It is rather creative, as it creates previously non- existing powers. The powers of the EU, for example, did not exist before it was constituted. Therefore, the idea that states have “lost” powers is not as clear-cut as some would contend. In fact, it often seems that the reverse is true, that states have gained new powers through the EU which they did not previously have. Nevertheless, let us assume that, generally speaking, states have indeed lost power over the last few decades. Why would Catalans want independence in this case? Is it not absurd to want to become a sovereign state if

14. According to Sassen the argument conceals an “Americanization” of the political world. Sassen, Losing Control? Sovereignty, Fragility and Time in the Catalan Process 233 this implies losing power? The question is of great political interest (people will want to know if the country will have more or less power). Neverthe- less, it lays a conceptual trap; it confuses power and sovereignty, which are two different concepts. Sovereignty does indeed presuppose power, but the inverse is not true. The concept of power is much broader (its scope is much greater) than that of sovereignty (large companies have power but not sovereignty, for example). Sovereignty is a certain kind of power. A distinction should also be drawn between power and autarchy. It is one thing to have power but quite another thing to be self-sufficient. While the notion of Westphalian sovereignty prevailed, these three concepts (power, autarchy, sovereignty) often went hand in hand and possibly had ancient connections (let us recall that, for Aristotle, a city is an autarchic entity). But they are different concepts. However, this conceptual trap notwithstanding, the question remains. Why would Catalans wish to achieve sovereignty? What kind of power makes sovereignty still desirable today? We will find the answer in the contractualist tradition (surely the most influential tradition of political thought in this matter). Two interpretations coexist in the contractualist tradition regarding what is achieved by leaving the state of nature; that is to say, what problem is solved by instituting a sovereign. On the one hand, there is the interpretation according to which what is solved is a problem of interests, security, and law and order. In the state of nature, social life is not possible because individuals cannot safely enjoy or make the most of what they do. The interests of one person constantly clash with those of another. The only solution is to transfer all natural power to a single agent (an individual or a group of individuals) whose will, being stronger than that of any other individual or group by virtue of the transfer of their natural power, inevitably becomes law. This is the Hobbesian account of leaving the state of nature.15 Locke and Rousseau’s accounts are slightly different (in the case of Locke, for example, the state of nature is not a miserable state where human life is impossible) but they ultimately agree on the idea that the sovereign resolves an issue of interests. The social contract generates social order by establishing who rules in the last instance. On the other hand, however, we have the interpretation according to which what is resolved by leaving the state of nature is primarily a

15. This interpretation of Hobbes’ theory has been offered by various authors, including Jean Hampton and David Gauthier, to name just two. See Hampton, Hobbes. 234 The Catalan Process problem of judgement. In the state of nature it is impossible to determine “what there is” because, as Hobbes argues, each man is his own judge. The description of reality and the judgements made about it (all the reality that affects humans) are a constant object of dispute and, therefore, of clashes. Let us recall that one of Hobbes’ central concerns in Leviathan is to solve conflicts related to disparate religious doctrines (all of which clash over what there is, both in the earthly world and in the afterlife).16 However, conflicts of this kind do not only arise with respect to matters of this nature.

(...) civil laws are to all subjects the measures of their actions, whereby to determine, whether they be right or wrong, profitable or unprofitable, virtuous or vicious; and by them the use and definition of all names not agreed upon and tending to controversy, shall be established. As for example, upon the occasion of some strange and deformed birth, it shall not be decided by Aristotle, or the philosophers, whether the same be a man, or no, but by the laws.17

The sovereign, therefore, settles disputes concerning judgements about what there is and which judgement is merited by what there is. In other words, he enables life in common through his creative power, the power to create social reality (let us recall how Leviathan begins and how Hobbes identifies the sovereign with the Creator). Of course, the two interpretations are not mutually exclusive; indeed, they might even require each other. But they are different and have different implications. In the case that concerns us here, they may at least help us to make better sense of the call for independence supported by such a large percentage of the Catalan population. For Catalans, what is the point of striving for sovereignty? In accordance with the first interpretation of the social contract, what these Cata- lans are seeking is to become the ultimate authority in a dispute with the Spanish state. This dispute is directly related to the question of “who rules” in the last instance; or, in other words, which power forms the basis of social order in the last instance. To be clear about this, it is important to

16. This interpretation makes Hobbes an author concerned with typical problems of liberalism. Authors such as Richard Tuck or Alan Ryan are advocates of this interpretation. See Tuck, Hobbes; Ryan, and Rogers, Perspectives. 17. Hobbes, “De Corpore Politico,” 225-226. Sovereignty, Fragility and Time in the Catalan Process 235 recall that the “final straw” that triggered the process was Ruling 31/2010 of the Constitutional Court of Spain. This ruling went against the will of the Catalan population, expressed in the referendum of June 18, 2006 on the Statute of Autonomy of Catalonia, the contents of which had already been approved first by the Catalan Parliament and then by the Spanish Parliament. The fact that a high court had struck down a decision made by the Catalan and Spanish parliaments and ratified by the Catalan population goes a long way to explaining the quest for independence in Catalo- nia. A very significant proportion of the Catalan population reached the conclusion that the Spanish rule of law, based on a constitution that has achieved mythical status through the sanctifying historiography of the Spanish transition, had failed to allow the citizens to have the final say. The will of the people, expressed both through its representatives and through a referendum, had been scorned or even “hijacked.” Meanwhile, it is also necessary to take into account that this impression was further strengthened by the “express” reform of article 135 of the Spanish constitution executed in September, 2011 (an impression which, on that occasion, was clearly shared by the rest of the Spanish people).18 For many people, the two episodes demonstrated that the democratic ideal in Spain was highly deficient. In Catalonia, this impression was especially strong. In the democratic ideal the people are supposed to have the final say. As has been stated on many occasions, “the process” began as and remains a bottom-up movement based on citizen mobilizations. It is not a movement driven by political parties. This means that the process clearly contains an aspect of protest against the establishment and should be interpreted, at least in part, as another response to the democratic deficit of Western societies. Indeed, the process should be considered along the same lines as the 15M movement in Spain or the rise of Syriza in Greece, for example. Let us recall that in Greece, the referendum held on July 5, 2015 on the bailout conditions proposed by the Troika was called a matter of national sovereignty; in Spain, Podemos, the party most closely associated with the 15M movement, constantly talks about recovering

18. The “express reform” of article 135 of the Spanish constitution was executed by the two majority parties of the Spanish parliament (the PP and the PSOE). Until then the constitution had been deemed untouchable. In practice, the reform of this article consisted of prioritizing the repayment of debts to financial speculators over social spending. By way of example, point 3 of the article reads as follows: “Loans to meet payment on the interest and capital of the State’s public debt shall always be deemed to be included in budget expenditure and their payment shall have absolute priority.” 236 The Catalan Process sovereignty for the people (in the sense of popolo or plebs). In the Catalan case, we are facing one of the most radical attempts to “re-empower” the people. Many Catalans appear to have reached the conclusion that the only way to realize the democratic ideal is by founding a new country. If it is true that the people have the final say in democracy, the people must also have the final say over the founding of a new state. In this respect, the process is an attempt by part of the people to retrieve supreme power and “start afresh,” breaking away from a decadent state. However, it is also a resistance test of the democratic ideal. To achieve sovereignty would represent a confirmation of the validity of the democratic ideal, in line with the most radical version we find in the writings of Rousseau, as well as in the founding myth of the USA. In light of the second interpretation of the social contract, “the process” can also be viewed in another way. It can be seen as a struggle to determine “what there is”; that is to say, to become the voice that establishes what we find in the world. Ruling 31/2010 of the Constitutional Court of Spain established that Catalonia could not be considered a nation in political terms and that only one nation exists in Spain, namely the Span- ish nation. The court therefore derailed the Catalan hopes (or dreams) of turning Spain into a plurinational state. Let us recall that the mass demonstration which took place on July 10, 2010, and which proved to be the springboard for the process, was held under the slogan “We are a nation. We decide.” The conflict was therefore framed in metaphysical terms; not as a struggle about part of reality, but rather as a struggle to create a certain reality. It was the question of “attributing definitory reality” about “what there is” which the Constitutional Court wished to sweep away. The Catalan objective was, by means of so-called external sovereignty, to achieve something it had not been able to accomplish until then with a certain amount of internal sovereignty: the status of a nation. The process can certainly be viewed in the light of both interpretations. As we have said above, they are not incompatible but rather complementary and in fact often concur. But each of them has different implications. In accordance with the first interpretation, the conflict is a question of all or nothing. Given that the struggle consists of conferring on the Catalan people the status of supreme power, sovereignty is understood and can only be understood as absolute. The Catalan people may or may not have the final say, but there is no middle ground. There are no degrees of sovereignty from this perspective. On the other hand, from the perspective of the second interpretation, where the struggle Sovereignty, Fragility and Time in the Catalan Process 237 takes place in terms of a metaphysical conflict about what there is, the concept of sovereignty does admit degrees: we may achieve more or less sovereignty according to our capacity for the creation of reality. In this second scenario, the mere fact that the process is occurring in Catalonia is in itself proof of a certain degree of sovereignty, since it is thanks to the process that the very reality at stake is generated. The existence of the process highlights the existence of a national community and at the same time creates it or makes it stronger. From this perspective, thanks to the conflict, the conflict is already partly won. Catalonia is being discussed all over the world as a collective political subject more than ever before. As this occurs, it achieves a certain amount of recognition and therefore strengthens its national status. Therefore, depending on the interpretation we adopt, we will have one criterion for success or another. Furthermore, the two interpretations also help us to understand the heterogeneity of the stakeholders in the process and how and when their reasoning differs. Left-wing nationalists constitute a very important sector in the process. This is possibly the hegemonic group, precisely because its ideology enables it to easily combine the two interpretations of the conflict: the one related to interests (retrieving power for the people or popolo) and the metaphysical one (ensuring the status of people or nation for Catalonia). Meanwhile, there are other sectors in the process that feel comfortable with the first interpretation but not with the second one; that is to say, political stakeholders for whom the most important aspect is to “empower” the ordinary people and who, on the other hand, do not share the objective of “creating” a collective reality of a national nature. The reverse is also true: there are sectors that identify with the second interpretation but not with the first one; that is to say, political stakeholders who do not prioritize the “empowerment” of the people but rather the strengthening of the Catalan national reality. Nevertheless, despite these differences, all of these sectors coincide in saying that they are striving for sovereignty.

11.3. To Be Fragile

The existence of this heterogeneity of aims and stakeholders is directly related to the second question we now address. One of the constant demands of a substantial sector of the sovereigntist block in the process has been the following: “The right to decide? Yes. But we want to decide everything.” 238 The Catalan Process

If we are discussing sovereignty, we are not only interested in creating a new state and a new demos, but also in determining the nature of this new demos; in other words, we are interested in creating a brand-new country from bottom to top, in being able to discuss absolutely everything. In this respect, the sovereigntist camp is divided into those in favour of achieving independence before deciding on the exact nature of the new state and those who argue that it is necessary to be clear about the type of country we want in order for independence to be worthwhile. Does this dichotomy make sense? What are the reasons for it? Can we determine whether one of these perspectives is more appropriate than the other? In order to answer these questions, we need to gain a greater understanding of a certain kind of dilemma that arises out of the process. At some point, sooner or later, the conflict will be resolved one way or another; the Catalans will either have achieved independence or they won’t. Let’s imagine that they have. Does this mean that they have been successful? In principle, in the period immediately following the achievement of external sovereignty, the logical impression would be one of success. But can they be sure over time that gaining independence was a good move? Can they be sure that they’ll think they made the right decision? “That will depend,” it seems. “It would depend on how things went,” some will say. These “things” include not only the skill or ineptitude of Catalan politicians when it comes to governing the country, but also factors totally unrelated to the governing capacity of politicians (such as international recognition or the global economic situation). Now let us imagine that the Catalans do not achieve independence. In the period immediately following the end of the process, the overriding feeling in the pro-sovereignty camp will probably be one of defeat. But can they be sure that over time they will not say they were lucky they did not achieve independence? Once again, “that would depend.” “It would depend on how things went.” Let’s look at it from the other side as well. Let’s look at it from the perspective of those who have been “converted” to the cause of independence recently. Let’s imagine that at some point in the future the process ends in huge disappointment and they look back and ask themselves: “What on earth were we thinking? How could we not see it?” Or the opposite. Let’s imagine that Catalonia becomes independent and things go smoothly. Those who opposed independence now realize their “huge error” because they’re doing just fine in the Catalan Republic and they ask themselves: “What on earth were we thinking? How could we not see that becoming independent was good for us?” Sovereignty, Fragility and Time in the Catalan Process 239

All these possibilities highlight the fact that in addition to being a political, legal, moral or economic problem, the process is also an existential problem. We refer to existence here in the sense the existentialist philosophers did, not in the sense used by Carl Schmitt.19 In periods of transition, as the Catalan process shows, the evidence of experiencing truly existential circumstances is particularly striking. It is especially evident in two phenomena: (a) in the type of justifications on which decisions are or can be based; (b) in a certain kind of experience which we could call “absurd.” Let us explain what we mean. The question “What must I do?” or “How must I live?” is not always a moral one (it is not always related to our duties or obligations to others) or an ethical one (it is not always related to obligations incurred by virtue of belonging to a particular group). Sometimes, the question “How must I live?” is simply related to what we aspire to in life, to what we think we should be. But how can we answer questions of this sort? On a basic level, we can answer them by identifying our interests. However, “interest” is too vague a term here. We often refer to interests in economic terms; we have an interest in relation to a goal we have set for ourselves and from which we stand to gain. The existential question (the question to which we are referring) is also related to the need to set ourselves a life goal which will define a long-term strategy, facilitating a certain identity. Let’s try to answer the existential questions by means of some considerations regarding which subject we are or could be. We can thus discuss moral, ethical (sittlich) and existential reasons, and, consequently, a moral rationality, an ethical one and an existential one. What we wish to make clear is that the justifications of decisions and of the actions involved will vary according to the type of rationality. According to Monique Canto-Sperber, one of the characteristic features of the existential justification is the vagueness of reasons;20 in other words, the reasons we may have for making a decision in favour of a certain option may be insufficient in order for this decision to be classified as rational. Why? Because of the formal characteristics of the type of justification that it is, namely an existential justification. What characteristics are we referring to? First of all, they are reasons that depend on an agent; they cannot be impersonal. Secondly, they are reasons that may or may not provide an adequate justification depending on how things go. Thirdly, there are reasons that vary over time (for example, as we get

19. See Schmitt, Der Begriff. 20. See Canto-Sperber, Inquiétude morale. 240 The Catalan Process older). Indeed, it is possible that the reasons we give at a certain time to justify a personal decision or action turn out to be inadequate in light of future events. It is possible that as we get older we may even consider the reasons differently from how we saw them when we made the decision. On this point, Canto-Sperber develops an example provided by Bernard Williams: the example of a painter by the name of Gauguin who makes the decision to abandon his family and heads to Tahiti, in order to live exclusively for his art. The author argues that Gauguin’s decision is not justified by itself. The events subsequent to the decision, the potential scenarios after taking it, affect the quality of the justification: if Gauguin had failed as a painter, would we judge him in the same way? Existential justifications become valid (or not) ex eventu. Nevertheless, the fact that reasons of an existential nature have these characteristics does not imply that existential deliberation is merely subjective. In existential deliberations we can recognize elements of objectiv- ity: how good decisions are depends on whether the relevant facts regarding the agent’s situation are taken into account, on whether their potential consequences are taken into account, etc. Considering the situation of the agent in question, we can also judge whether or not the agent has made a good decision from an outside perspective. The problem with justifications of this kind is therefore not related to subjectivity. It is related to the nature of the justifications. Moral or ethical justifications are normally not agent-relative; neither does their validity depend on what occurs in the future or on people’s age. In this respect, existential justifications are based on rather fragile reasons. As such, it seems that groups can also face similar situations. Let’s consider a small group, a family. Let’s imagine that a couple from Madrid moves to Barcelona for work. They start a family there and establish a circle of friends, but despite having been there for many years, the idea of returning to Madrid has always been at the back of their minds. Finally, one day, one of them receives a good job offer in Madrid and they have to decide whether to accept it or not. After discussing it over and over again, they decide to take the job and move back to the Spanish capital. “Have we made the right decision?” they wonder, while they are leaving Barcelona. It is impossible to know this beforehand, in the moment of making the decision. Perhaps as soon as they have settled in Madrid they realize that Madrid is no longer the city they remember from their youth. Or that they are no longer the same people and do not feel comfortable Sovereignty, Fragility and Time in the Catalan Process 241 there. They have made a mistake. Or, perhaps, once they are back there they rediscover the city and feel “at home” again. What holds for this couple also holds for a collectivity, such as a country or a nation. We have discussed the dilemma facing those in favour of sovereignty: whether to gain independence first and then define the country or the other way around. The comparable dilemma in the case of the couple from Madrid would be whether to take the plunge, move to Madrid and see how it pans out, or to first try and find out exactly what moving to Madrid would involve (in as much detail as possible), and only then decide to go ahead with the move. Is there a rational way of settling this dilemma? There are risks involved in both options. Tak- ing the plunge and heading there without knowing the consequences in detail may prove too impulsive and end up being the wrong decision. But it is difficult to know beforehand. They will only know once they go to live there. Furthermore, if the decision about whether to go depends on achieving a broad consensus between the members on the implications of leaving, the decision may take forever to make or may never be made. Meanwhile, once it is made, there is no guarantee that they will have made the right choice: it’s possible that once they’ve made the move something unexpected will happen that makes them yearn for the previous situation. Dilemmas of this kind and this degree of vagueness are typical of existential justifications. That said, we should add the following: it seems that the dichotomy between existence and essence is reproduced between those in favour of one strategy and those in favour of the other. In fact, it would seem that Sartre’s dictum that “existence precedes essence” could also be applied to certain human collectives, typically nations.21 Existence in this case would refer to the capacity of a people to exist, in the sense of being “projected” towards the future and being ineluctably condemned to continuously rec- reate one’s sense of collectiveness, one’s own collective identity. Essence would refer to the type of country a people ends up becoming. If this were the case, we could argue that those in favour of achieving independence first are more conscious of the existential situation in which the country finds itself and, therefore, cope better with the openness or vagueness of the process. We could state that, in this respect, they present themselves as being more “authentic,” to use the term popularized by existentialists to refer to individuals who have become aware of their existence.

21. Sartre, Existentialism. 242 The Catalan Process

Existential justifications are widespread in the case of nations due to the fact that nations are first and foremost intentional realities; in other words, their existence depends on people believing in them. However, as has often been highlighted, this “believing in” is not a scientific or representational belief, it is not a belief that can be tested or be clearly characterized in terms of true or false. We cannot determine its relevance by means of an empirical test. It is a belief whose adequacy depends on many factors, as well as on what comes of it. It is a belief that is in fact strongly linked to mythical belief, in the sense of believing in an account of the history of the collective that can be neither falsified nor verified. In the case of nations, the mere pondering of whether to believe or not (in the nation) is the subject of an existential dilemma. Some Catalans ask themselves, “Am I more Catalan than Spanish?” “To which project should my loyalty belong?” The identity-related question typically raised by national conflicts is an existential question. As such, the answers that are often given are based on fragile reasoning. Thus, it is possible that at some point in the future we will think we came up with the wrong answer. Meanwhile, another crucial factor for the reasonableness of the belief is the number of people. The existence of nations (just like that of money or any other social reality) depends on a sufficient number of people believing in them. Nonetheless, as we have said above, this belief is based on myths. One of them, for example, is that everybody forms part of the nation to the same extent, regardless of whether they believe in it or not, of whether they feel part of it or not. In another context, we may find a minority collectivity which believes in the existence of a nation, despite the fact that the majority does not believe in it. It is not a nation, not yet, because not enough people believe in it. The members of this minority group have to acknowledge this. Yet at the same time they may think that only by believing in the nation will they at some point turn a sufficient number of people into believers so that the nation may exist. We could also characterize these cases according to the existentialist concept of the “absurd,” if what we understand by absurd is our awareness (both painful and inevitable) of the unbridgeable gap between what we find and what we think. By way of illustration, let us consider the case of the nationalists in the autonomous community of Valencia. Less than 5% of the people who live in this community believe that the Valencians constitute a nation, as part of a supranational entity called the Països Catalans (literally, Catalan Countries). With such a small figure, does it make sense Sovereignty, Fragility and Time in the Catalan Process 243 to be a Valencian nationalist? A well-informed nationalist of this kind would have to accept that a nation only exists if a lot of people believe in it. Why should the Valencian Community be a nation if only 5% of its citizens believe that such a nation exists? Is it not therefore absurd to be a Valencian nationalist? The position certainly has elements of the absurd: it consists of stating that we are a nation because that is what we should believe. However, it is a bearable absurdity for those who have to deal with it, as long as reasonable hope exists that one day the number of believers will grow enough for the affirmation that “Valencia is a nation” not to be a fiction. The hope will be reasonable by virtue of a series of facts, for example a history, a language, institutions, and shared economic interests; but it is not more than a hope. As such, the dilemmas faced by a national group or one with possibilities of one day becoming a nation will be dilemmas with elements of the absurd. Confronted by questions of this kind, perhaps, as we have suggested before, all we can demand is that the answers to these questions do not mask the fact of the fragility of the reasons that one can appeal to in this kind of debates.

11.4. To Be Temporary

The year 2014 marked the 300th anniversary of the fall of Barcelona in the Spanish War of Succession and the subsequent loss of the privileges that Catalonia had enjoyed until then as part of the Crown of Aragon. The commemoration was no minor event. It took place during one of the most decisive periods of the process. In fact, the institutions organis- ing the commemorative events used the example provided by the heroic people of Barcelona in 1714 to encourage the supporters of sovereignty today and made the most of the occasion to recall that three centuries ago Catalonia had its own laws which were taken away by virtue of the “right of conquest.” An attempt was thereby made to transmit the message that the collective freedom of the Catalans had been illegitimately “usurped.” The process has fed off this perception of a significant extent. Can we draw on these memories in order to foster the independentist cause? Can we argue that the Catalan people have the right to recover their freedom? For Allen Buchanan, one of the leading theorists on the morality of secession, who argues that reparation for the usurpation of sovereignty constitutes one of the reasons in favour of unilateral seces- 244 The Catalan Process sion, it is clear that the answer to these questions is no; too much time has gone by:

How far back should we go in order to satisfy the demand for reparation? The annexation of Catalonia by Spain took place three centuries ago. Any general moral principle stating that secession would be justified in order to recover an unjustly annexed territory would be unacceptable if it were based on an event that took place so long ago.22

Obviously, it is not possible to produce the history of past events exclusively from the past. Any history is produced from a determined present that inevitably shapes itself as such in relation to potentialities of the future. In other words, explaining history inevitably consists of adopting a narrative perspective of a temporal character. One of the main contributions of philosophical hermeneutics is to have shown the extent to which this narrative perspective (and its horizon, as Gadamer would have it) necessarily consists of a Wirkungsgeschichte,23 a “history of effects.” Past, present, and future are interlinked in any interpretation of human action. One of the clearest consequences of this, in the Catalan case, is the intensity of the debate among historians that the process has caused. Indeed, Catalan historiography has split into two main groups: the first group adopts the view that the process connects directly with past events related to the Catalan national reality, while for the second group this view is guilty of romanticism and surreptitiously contributing to the pro-independence cause.24 However, the debate between historians does not concern us here; neither do we wish to make any general reflections on the nature of his-

22. Our translation from the Spanish foreword to Buchanan, Secesión, 17. Somebody might argue that the Principality of Catalonia was never a state, in the sense of being a fully sovereign state, but rather formed part of a confederation of territories. Regardless of whether the observation is true or not, it does not affect our argument. In this fragment, Buchanan is in fact assuming that Catalonia unjustly lost self-government and that this loss would have served as grounds for unilateral secession for a certain length of time. 23. Gadamer, Wahrheit und Methode. 24. See the article by Riquer, “Outrageous bashing of Catalan historians.” By way of example, we could place the following works in the first group: Josep Fontana,La formació d’una identitat [The Shaping of an Identity] (Barcelona, Eumo, 2014), Jordi Casassas,La nació dels catalans [The Nation of the Catalans] (València, Afers, 2014), Borja de Riquer, Anar de debò: els catalans i Espanya [Getting Serious: the Catalans and Spain] (Barcelona, Rosa dels Vents, 2016). In the second group we can find Jordi Canal,Historia mínima de Catalunya [A Brief History of Catalonia] (Madrid, Turner, 2014) and much recent Spanish historiography. Sovereignty, Fragility and Time in the Catalan Process 245 toriography. In fact, we do not even wish to directly discuss the answer given by Buchanan, stating that a loss of freedoms three centuries ago does not constitute normative grounds for a unilateral secession. Our interest lies in his idea that too much time has gone by for these grounds to be considered valid. What does Buchanan mean by the statement that too much time has gone by? The idea that too much time has gone by does not contradict the fact that the present is laden with the past and pregnant with the future; it does not contradict the thesis of Wirkungsgeschichte. It simply assumes that, from a certain moment, certain phenomena cease to have an effect (Wirkung) on the present. The assumption may seem obvious at first sight. However, if we reflect on it for a moment, we soon see that it actually is quite as problematic as it is obvious. It certainly seems that at some point people must be able to say “Ok, that’s in the past now, it doesn’t affect me any longer.” Otherwise, as Nietzsche pointed out on more than one occasion, human life would be impossible.25 This applies to both individuals and collectives. An obses- sion with the past can be morbid. Yet how many years must go by before we can say that a past event no longer has any effect on the present? If the loss of freedoms in Catalonia had taken place one hundred years ago, would it make sense for Catalans to want to restore them now? What if it had occurred forty, sixty, or eighty years ago? Does any criterion exist, conventional or otherwise, for determining the number of years that must go by in order for a past event to no longer affect the present? In one hundred years over a century and a half will have passed since the Holocaust occurred. Is there anyone who would dare to argue that by then it will no longer have any effect on the present? There is a certain paradox here. On the one hand, we believe that subjects are not necessarily tied to past events and that, therefore, at some point they must be able to cut loose. However, on the other hand, the mere idea of establishing a chronological criterion (establishing a specific number of years), on the basis of which the past no longer affects the present, seems a ridiculous notion and, moreover, it is impossible to fulfil. How can this paradoxical situation be explained? Bergson provides an answer: the paradox arises from the way in which we approach the idea of time. According to Bergson, a number may be defined as the synthesis of the one and the many; that is to say, it is the synthesis of a multiplicity of identical units considered simultaneously, lined up next to each other. In

25. See, for example, Nietzsche, On the Advantage. 246 The Catalan Process this sense, the notion of number assumes the notion of space. Space is what enables us to juxtapose the various identical elements and consider them simultaneously; in other words, space is the homogeneous medium that allows us to consider the multiplicity of identical elements at the same time and to constitute the number. However, according to Bergson there are two types of multiplicity: Firstly, we have the multiplicity of the material objects which are necessarily located in space, to which the conception of number is “immediately” applicable; and, secondly, we have the multiplicity of states of consciousness, which do not have the same properties as material objects (in particular, they are not located in space). It therefore seems that they cannot be regarded as numerical, unless we conceive of them as if they were located in a homogeneous medium equivalent to the homogeneous medium of space. In other words, we can only count states of consciousness to the extent to which we consider them to be symbolically located in a homogeneous medium comparable to space. In fact, that is what we do. For example, says Bergson, we can count the chimes of a bell because we dissociate each of these chimes from the rest and place the chimes next to each other. We think that the homogeneous medium in which we supposedly carry out the operation of counting the states of consciousness is time. Bergson dared to pose the question of whether it was legitimate to undertake this operation. Space is homogeneous by definition, as it allows the juxtaposition of identical elements. But is the time of consciousness homogeneous? Bergson’s answer was no: the time of consciousness or duration is pure heterogeneity; there is never homogeneity of equal states juxtaposed to each other. The world of consciousness is a world of qualities. The reality is that “states of consciousness, even when successive, permeate one another, and in the simplest of them the whole soul can be reflected.”26 The nature of duration can be compared to a melody in which the states of consciousness are like musical notes:

Might it not be said that, even if these notes succeed one another, yet we perceive them in one another, and that their totality may be compared to a living being whose parts, although distinct, permeate one another just because they are so closely connected?27

26. Bergson, Time and Free Will, 98. 27. Ibidem, 100. Sovereignty, Fragility and Time in the Catalan Process 247

What we are suggesting here is that what Bergson said about the time of consciousness also applies, in a certain way, to historical time; that is, to the time that explains the development and actions of a collective. Other- wise, how can we explain the phenomenon of mass indignation? How can we explain how, all of a sudden, an apparently minor episode can trigger extraordinary mobilizations when endless similar cases have occurred in the past which people have stoically endured? “People are tired of putting up with it,” we say, for example. Popular indignation is strongly associated with the relentless experience of humiliation. When Martin Luther King explains why Rosa Parks refused to give up her seat on a bus to a white passenger, he writes the following: “Actually, no one can understand the action of Mrs. Parks unless he realizes that eventually the cup of endurance runs over, and the human personality cries out, ‘I can take it no longer.’”28 Understanding historical time in a similar way to the time of consciousness also helps us to understand that a collective sometimes explodes not because something extraordinarily humiliating happens, or because there has been a chain of significant humiliating episodes, but rather because it has accumulated an unbearable series of minor humiliating incidents. In view of this accumulation of minor incidents and of a new “minor humiliation,” people can reach the point where they say “all right, enough is enough.” What is unbearable in these cases is that the humiliation has “lasted” too long, so that it seems to never end. “Revolutions are not about trifles, but they spring from trifles,” wrote Aristotle.29 A minor matter may become important if it forms part of protracted unfair treatment. When it comes to the morality of secession, proponents of the remedial theory always attempt to identify “important or serious” cases of injustice that would justify a unilateral secession. What is rarely taken into account is that a minor incident (considered as an isolated event) may become important if it occurs repeatedly. Whatever the case (be it an accumulation of extremely humiliating incidents, or a constant repetition of minor ones), mass indignation can only be explained if (i) groups experience time as duration, and (ii) if the individuals that are part of these groups share a mutually supportive sense of identity (in the sense that what affects one affects all). Therefore, the historical time of a group cannot be the object of numerical treatment alone. That is what renders the idea of imposing a

28. Washington, A Testament of Hope, 424. 29. Aristotle, Politics, book VII, chapter IV. 248 The Catalan Process criterion of “too much” time ultimately ridiculous. Duration cannot be measured. Therefore, we cannot say that an event that lasts is too far away. When we refer to time as duration, a past episode may well be present and serve as a “structuring” element of the present, despite the fact that many years have gone by. To say that this event still “lasts” in the present means that it still has repercussions, that the account offered of it forms part of the present. This can be prolonged for generations. It is not surprising that phenomena of this kind occur. What would be strange is if they did not occur, at any rate as long as we assume that human beings are capable of having collective intentionality, i.e. that they are capable of sharing beliefs about facts and phenomena of the world (including the fact that other people believe something). It is actually due to this very capacity that social reality exists.30 These observations seem especially pertinent when the groups in question are nations. As Avishai Margalit argues, nations are natural communities of shared memory; remembering must thereby be seen as an essential part of such communities. In order to understand this, it is important to take into account the distinction between common memory and shared memory. A common memory is the aggregate of individual memories (different individuals who remember an episode from their respective points of view). “A shared memory, on the other hand, is not a simple aggregate of individual memories. It requires communication.”31 In other words, it involves the collective work of giving meaning to the remembered facts, and is especially relevant in the case of dramatic episodes.32 “Giving meaning” implies that shared memories are closer in nature to belief than to knowledge and can easily become founding myths. Margalit points out that constant remembrance work takes place in modern societies (in the context fruit of a division of labor between archives, television reports, and official commemorations). This also involves an attribution of responsibilities. In natural communities of memory, remembering (sharing a memory) is not only an involuntary action, but also a duty. The very nature of the collective depends on its fulfilment of

30. See Searle, Making. 31. Margalit, Ethics of Memory, 51. 32. It may be useful to apply Freud’s concept of Nachträglichkeit (afterwardsness) to the way in which collectives (and not only individuals, as Freud has it) are burdened with exceptional past events, provided that we see these afterwardsness processes not as typical processes of “sick” societies but rather as a constant of any national collective. See Eickhoff, “On Nachträglichkeit,’’ 1453-1469. Sovereignty, Fragility and Time in the Catalan Process 249 the duty to remember. Natural communities are characterized by their observance of a series of traditions, and traditions are a type of shared memory. Apparently Gaziel33 once said, “We Catalans are sick of history.” This is no coincidence. The Catalan nation, like any other nation, has been built and continues to be built on the basis of a shared memory of events and myths. Some may regret this state of affairs; Catalan sovereigntists most likely will not. “Perhaps we Catalans are sick of history. But there are sicknesses with plenty of life in them,” they will say.

References

Aristotle. Politics. Bergson, Henri. Time and Free Will: An Essay on the Immediate Data of Consciousness. London: George Allen and Unwin, 1910. Brown, Wendy. Walled States, Waning Sovereignty. New York: Zone Books, 2010. Buchanan, Allen. Secesión: causas y consecuencias del divorcio político. Bar- celona: Ariel, 2013. Canto-Sperber, Monique. L’inquiétude morale et la vie humaine. Paris: Presses universitaires de France, 2001. Colomer, Josep M. “Basta ya de Estados.” El País (22 January 2014). De Riquer, Borja. “The Outrageous Bashing of Catalan Historians.” Diari ARA (16/09/2015). Eickhoff, Friedrich-Wilhelm. “On Nachträglichkeit: The Modernity of an Old Concept.” International Journal of Psychoanalisis, no. 87 (2006): 1453-1469. Gadamer, H.G. Wahrheit und Methode. Tübingen: Mohr, 1975. Gauthier, David. The Logic of Leviathan. Oxford: Clarendon Press, 1979. Hampton, Jean. Hobbes and the Social Contract Tradition. Cambridge: Cam- bridge University Press, 1986. Harris, Marvin. “History and Significance of the EMIC/ETIC Distinc- tion.” Annual Review of Anthropology, no. 5 (1976): 329-350. Hobbes, Thomas. “De Corpore Politico: or the Elements of Law, Moral and Politic”. In: William Molesworth (ed.). The Collected English Works of Thomas Hobbes. IV.

33. This was the pseudonym used by the famous writer and journalist Agustí Calvet. 250 The Catalan Process

Margalit, Avishai. The Ethics of Memory. Cambridge: Harvard University Press, 2002. Nietzsche, Friedrich. On the Advantage and Disadvantage of History for Life. Indianapolis: Hackett Publishing Company, Inc., 1980. Pike, Kenneth Lee (ed.). Language in Relation to a Unified Theory of Struc- ture of Human Behavior. The Hague: Mouton,1967. Rawls, John. The Law of Peoples. Cambridge: Harvard University Press, 1999. Ryan, Alan, and G.A.J. Rogers. Perspectives on Thomas Hobbes. Oxford: Clarendon Press, 1988. Sartre, Jean-Paul. Existentialism Is a Humanism. New Haven: Yale Uni- versity Press, 2007. Sassen, Saskia. Losing Control? Sovereignty in the age of Globalization. New York: Columbia University Press, 1996. Schmitt, Carl. Der Begriff des Politischen. Berlin: Duncker & Humblot, 1996. Searle, John. Making the Social World. Oxford: Oxford University Press, 2010. Tuck, Richard. Hobbes. Oxford: Oxford University Press, 1989. Walker, Neil (ed.). Sovereignty in Transition. Portland: Hart Publishing, 2003. Washington, James M. A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr. New York: Harper Collins, 1991. 12 Sovereignty and Autonomy in the Case Law of the Italian and Spanish Constitutional Courts: Remarks

Laura Cappuccio

12.1. Introduction

The processes of supranational integration and, more in general, those of globalization have deeply affected the classifications of the form of state.1 Today, the traditional categories elaborated by scholars (confederal, federal, regional, unitary state) are not able to describe the structure of current systems. This inadequacy derives in particular from the radical transformation of the concept of sovereignty: we may cite, for example, the distinction federal / regional state, which has gradually distanced itself from the pair sovereignty / autonomy. The concepts developed between the 19th and 20th centuries based the diversification of the forms of state on the notion of sovereignty. Recently, scholars have questioned this approach, suggesting that it suffers from an excess of abstraction that does not take in to account the evolution of those political entities characterized by a “growing and increasingly stable distribution of political powers to other entities”.2 In other words, it is no

1. In this case, the notion of form of state describes the territorial distribution of the power, i.e. the relationship between the fundamental elements of the state: sovereignty and territory. Cf. Bifulco, Cooperazione; Caravita di Toritto, “Stato federale”; Bognetti, “Feder- alismo”; Reposo, “Stato federale”; De Vergottini, “Stato federale.” 2. Bognetti, “Federalismo,” 275. 252 The Catalan Process longer possible to identify clear differences, since the models overlap. In the current studies of federalism, there is an eclipse of sovereignty, which no longer plays the role of a parameter in the identification of the differences between the two forms of state (i.e. federal and regional). The evolution of systems has gone beyond the distinction between federal and regional states: on the one hand, unitary states are subject to a decentralization process; on the other hand, compound states are subject to a process of centralization. Therefore, the distinction is avoided, and scholars suggest a sort of “continuum,” where the two types of state have a common matrix, i.e. the unitary state.3 This idea is pointed out by those authors who suggest that “the advantage of federalism is that it does not have the legal need to ‘kill’ the sovereign and then ask who decides the law. It lives in another world. The one of the interdependent governments with their autonomy and respective territorial areas.”4 Also from an international point of view, considering globalization, some authors believe it is not correct to keep using an absolute concept of sovereignty, which is distant from the tendencies of the current international order.5 As a matter of fact, an author has suggested: “Political entities are not static. On the contrary, they are based on a permanent process of self-creation. In the same way, sovereignty […] is in a permanent state of flux.”6 The expressions “multilevel constitutionalism”7 and “constitutional pluralism”8 show this tendency towards the creation of a “many-layered structure.”9 They reflect a process of “establishing new structures of government complementary to and building upon — while also changing — existing forms of self-organization of the people or society.”10 This process of transformation of sovereignty is bound by the presence of a “voluntary relinquishing of sovereignty to international organizations and to the respective inter-governmental bodies, the appearance and growing

3. Reposo, Profili dello Stato autonomico, 39 ff. Cf. Paladin,Diritto costituzionale, 53 ff; Volpi, “Stato federale e Stato regionale”, 367. 4. Caminal, Federalismo pluralista, 92 (our translation). 5. Attili, “Derecho y poder,” 282, wrote that “sovereignty is weakened by the loss of full autonomy and self-determination of states at the international level; it has lost the strong national core” (our translation). 6. Kotzur, “Sovereignty and the European federal constitution?,” 131 ff. 7. Pernice, “Multilevel Constitutionalism and the Treaty of Amsterdam,” 703. 8. Walker, “Idea of Constitutional Pluralism,” 317. 9. Kotzur, “Sovereignty and the European federal constitution?” 10. Walker, “Idea of Constitutional Pluralism,” 317. Sovereignty and Autonomy in the Case Law of the Italian and Spanish Constitutional 253 Courts: Remarks influence of non-state actors, and, not least, the continued viability of the nation-state.”11 This new system of relations takes into account the several levels of political action (international, European, and national).12 Scholars use the terms shared sovereignty, sovereignty in transition, and post-Westphalian sovereignty to show how the phenomena of social and economic interdependence caused by the development of the world market has affected the structure of the state.13 The idea of a “crisis of sovereignty” seems to be connected to the state crisis.14 By breaking national barriers, globalization has questioned these paradigms, entailing the need for new theoretical elaborations.15 In this more fluid scenario, in which traditional categories can hardly follow the reality of historical processes, it is interesting to analyze the decisions of constitutional courts that try to offer a theoretical contribution to the classification and definition of the models. These decisions, in some cases, seem characterized by the repetition of patterns that have been overtaken by scholars and by the processes of state systems. In this perspective, the comparison between the case law of the Italian and Span- ish Constitutional Courts is extremely significant: both institutions had to deal with the implementation of the model of autonomy and with their reforms. This contribution will discuss some of the decisions of the two Con- stitutional Courts, following a diachronic perspective, in order to verify whether, despite the differences between the two constitutions (which derive from different historical and social experiences), the conclusions suggested by the two courts are not too distant from each other. The decisions will then be read in light of the several possible ideas of territorial autonomy aimed at enhancing its potential, even in a time of economic crisis in which the idea of re-centralization is, in both systems, very strong.

11. Kotzur, “Sovereignty and the European federal constitution?” 12. On this interdependence cf. Walker, “Late sovereignty in the EU,” 23. The author points out that “in the new post-Westphalian order […] with the emergence of functionally-limited polities which do not claim comprehensive jurisdiction over a particular territory it becomes possible to conceive of autonomy without territorial exclusivity — to imagine ultimate authority, or sovereignty, in non-exclusive terms.” 13. Walker, “Sovereignty,” 24 ff. speaks of a sovereignty in post-Westphalian era. 14. Some authors verify the need to distance sovereignty from the state. Cf. Hoffman, “Is it time to detach sovereignty from the state?,” 9 ff. On the topic, Van Staden, and Vollaard, “The Erosion of State Sovereignty,” 167. 15. Ferrara, La Costituzione, 252 states that the world-wide economy has detached from representation the possession and the exercise of power. 254 The Catalan Process

12.2. The Use of Sovereignty by the Italian and Spanish Constitutional Courts in the First Stage of Implementation of Autonomy Models

As far as the Italian Constitutional Court is concerned, sovereignty is used when it comes to decide on regional powers. In this first stage, sovereignty is linked to the notion of the unity of the Republic: they appear to be two sides of the same coin. Since decision no. 9 of 1957, the Court has stated that the region — no matter how wide its autonomy is — still remains placed within the unity of the state and subject to it.16 A clear reference to sovereignty is also found in judgment no. 66 of 1964, in which it is pointed out that, even if the Sicilian statute grants a wide autonomy to the region, this aspect should not be confused with sovereignty, which belongs only to the state. In these decisions, autonomy is seen as a power that derives from the constitutional framework.17 It is worth asking which notion of state the Italian Constitutional Court is referring to when it comes to attributing sovereignty. As far as the state is concerned, scholars have distinguished between state-community and state-subject: the former is the whole community “politically organized, in its dialectical unity of rulers and ruled, authority and freedom”; the latter concerns a narrower phenomenon, i.e. the government in a generic sense.18 If we consider the first meaning, the people are an integral part of the state. On the other hand, in the state- government the people becomes a “community of persons external to the state and subject to the acts of power in their several manifestations.”19 The principle of popular sovereignty, however, implies that the state- subject is no longer the sovereign, but only a tool of manifestation of the will of the people through institutions of political representation. In other words, this power also derives from the constituent power and expresses

16. This formula is repeated also in decisions no. 65 of 1959 and no. 12 of 1959, in which it is written that the autonomous region “remains placed within the national unity and subject to the state.” (our translation). 17. Decision no. 6 of 1970. For a detailed and comprehensive analysis of these jurisprudence, cfr. Conz,Il principio di sovranità nella giurisprudenza costituzionale. 18. Crisafulli, “La sovranità popolare,” 99. 19. Ibidem, 103 (our translation). Sovereignty and Autonomy in the Case Law of the Italian and Spanish Constitutional 255 Courts: Remarks itself within the limits of the Constitution.20 This notion of sovereignty is found also in local authorities: “a manner of organization of the people.”21 Then which notion of state does the Court embrace when it talks about sovereignty? In the decisions studied, sovereignty seems to belong exclusively to the central state, instead of being considered as a manner of manifestation of the sovereignty of the state-community, or, as Berti wrote, as an “expression of a way of being of the Republic.”22 In these decisions, we cannot find the idea of region, suggested by several authors since the 50’s, that highlights the possession of political autonomy.23 No wonder Martines wrote that the regional autonomy “either is characterized in a political sense, or it is not autonomy.”24 This approach, which tends to develop the regionalist structure of the Constitution, does not find a place in Italian case law. Focusing, instead, on the first case law of the Constitutional Court of Spain, we can verify the use of notions of sovereignty, autonomy, and unity. In decision no. 4 of 1981, concerning the principle of autonomy of municipalities and provinces, the Court pointed out that “autonomy is an indeterminate legal concept that offers a very wide margin of appreciation.” (FJ1B, our translation). It is worth analyzing this decision because the concepts expressed are present also in later judgments. For the Con- stitutional Court, the Constitution (art 1 and 2) moves from the unity of the Spanish nation, which is established as a social and democratic state of law and whose powers derive from the Spanish people, holder of national sovereignty. This unity is translated into an organization (the state) for the entire national territory, but the state institutions do not exert the whole public power because the Constitution provides, according to a vertical distribution of powers, the participation of local authorities of different levels (art 137 of the Constitution, according to which “the State is territorially organized into the municipalities, provinces and autonomous communities that may be established. All these entities enjoy autonomy for the management of their respective interests.”) The Court points out that the constitutional provisions reflect a broad and complex concept

20. Ibidem, 143, wrote that the state-subject is only one of the forms in which it may be constitutionally exerted. 21. Ibidem, 123 22. Berti, “Art. 5,” 276 (our translation). 23. Martines, “Studio sull’autonomia politica,” 140. Cf. also Giannini, “Autonomi.” 24. Martines, “Studio sull’autonomia politica,” 150 (our translation). 256 The Catalan Process of state, composed of a plurality of territorial organizations that have autonomy, and that it is necessary to define the scope of the principle of autonomy (FJ3). This first part of the decision shows a different approach if compared with the Italian Court, which, at least in a first stage, does not highlight the participation of regions in the pluralistic structure of the Italian state. The Constitutional Court of Spain, in fact, unlike the Italian Court, which only speaks of sovereignty tout court, uses the notion of popular sovereignty. The territorial autonomies, indeed, are placed within the new form of state, in the context of the vertical distribution of power, as a manifestation of pluralistic requests. Despite this opening, however, the Court points out that “it is clear that autonomy refers to a limited power. Indeed, autonomy is not sovereignty — and even this power has its limits — and since each organization with territorial autonomy is a part of the whole, the principle of autonomy may not stand in the way of the principle of unity, but it is precisely within the latter that the former reaches its true meaning, as expressed in art 2 of the Constitu- tion” (our translation). Therefore, on the one hand, autonomy differs from sovereignty as a distinct limited power. On the other hand, it must respect the principle of unity. In addition, autonomy is connected to the management of specific interests, to which the powers attributed by the Constitution are linked. From this approach, a different position of the state emerges: it protects the general interests of the nation, which is defined as a condition of superiority. Even if it moves from a distinct theoretical premise, the Court embrac- es the same conceptual categories that focus on the distinction between autonomy and sovereignty, between general and specific interests, and on the pair unity-supremacy of the state. In decision no. 76 of 1988, the Constitutional Court of Spain verifies the consistency of some provisions of the Basque law on historical territories with the Constitution and with the statute of autonomy. It points out that “The Constitution’s character of supreme rule to which all state powers are subject (art 9) and which results from the exercise of the constitutional power of the Spanish people, holder of national sovereignty, and from which all the powers of the state derive (art 1.2 SC), precludes the maintenance of legal situations (even with proven tradition) that are incompatible with constitutional provisions and principles. The Constitution is not the result of a pact between historical territorial entities that retain rights that came before the Constitution and are above themselves, but a rule of con- Sovereignty and Autonomy in the Case Law of the Italian and Spanish Constitutional 257 Courts: Remarks stitutional power that prevails with general binding force within its scope, without leaving outside prior ‘historical’ situations” (FJ3, our translation). In this decision, the reference to national sovereignty is used to exclude another source of legitimacy of power, the pact between territorial entities that overlap with the Constitution. Popular sovereignty is used to justify the superiority of the Constitution, which excludes the presence of other prevailing powers. In this manner, some aspects of diversity between the Italian and the Spanish systems start to emerge. Art 2 of the Spanish Constitution, on the one hand, states the indivisible unity of the state; on the other hand, it refers to the nacionalidades, which express the presence of territorial communities with cultural, historical, and political subjectivity.25 The 1978 Spanish Constitution is different from the Italian one on this point: the founding fathers were aware that the territorial matter was the true challenge, “the most challenging task they had to confront,”26 and for this reason it was not possible to close the topic.27 The difficulty in clearly defining the future territorial structure had led to only some basic principles of the Estado Autonómico being inserted into the Constitution, while its actual functioning was left to the future processes of political decision.28 The Spanish Constitution, for this part, is defined as elastic, open, flexible, and is characterized by a compromise between forces that differ from a political and ideological point of view. These realities, which existed already before the 1978 Constitution, affect the system, making it “asymmetrical.”29 Among the positions advanced during the constituent stage, we may cite the confederal one, which pointed out the presence of a plurality of pueblos. Barrera Costa, for instance, said that the Constitution had to state, for each one of the nations, that “sovereignty resides in its people, and that these peoples, all separately sovereign, are associated in a common state for the benefit of all.”30 As a matter of fact, the use of the expression

25. For the application of the matter on the Catalan case, cf. G. Ferraiuolo, “La via catalana,” 18. 26. Ferres Comella, Constitution of Spain, 197. 27. Viver i Pi Sunyer, “Reconeixement de la plurinacionalitat de l’Estat,” 224. 28. Cf. Aja, Estado autonómico. 29. Scholars point out the presence in the plurinational system of non-state parties. Cf. Linz, and Montero, “The Party Systems of Spain.” 30. Comisión de asuntos constitucionales y libertades públicas sesión del 8 de mayo 1978, Cortes generales. Constitución española. Trabajos parlamentarios, vol I, p. 2081 ff. (our translation). 258 The Catalan Process nacionalidades has entailed a vivid debate,31 which continues today: some believe that the constitutional text should be interpreted in the sense of the “existence of only one source of sovereignty,”32 i.e. the Spanish people; others highlight the aspects of plurinationality of the Spanish system. This contrast shows that art. 2 may be considered as a “betrayed pact, both by those who see an attack against the indivisibility of the Spanish nation, and by those who think that the promised plurinational system has been disavowed.”33 These different positions are found not only in decision no. 76 of 1988, which explicitly refers to a pact between territorial entities in order to exclude its application, but also in the following events of the autonomy state.34 All these elements express the complexity of the Spanish system, and fuel tensions on how to read the constitutional Charter and delineate its next developments. Differently, the Italian Constitution, which derives from distinct historical premises, does not refer to nacionalidades and pueblos. The system of territorial autonomy is already defined, in its fundamental traits, by Title V of the Constitution; and it was not one of the most challenging points during the constituent stage. If territorial pluralism is an innovative aspect of the republican Charter, which distances itself from Fascist centralism, it is, however, not linked to the presence of communities that have their own cultural and historical roots. The recognition of the autonomies is linked to the vertical division of power and to the creation of protection with regard to its concentration. During the Constituent Assembly, the regions were seen as a “limit to (state) power, and thus a guarantee of liberty against any authoritarian adventure.”35 The recognition of the autonomies

31. The debate is still ongoing, and leads scholars to believe that the problems raised then are still valid now. Pérez Calvo, “Estado autonómico y hechos diferenciales,” 66. 32. Pérez Calvo, “Estado autonómico y hechos diferenciales,” 54 (our translation). Alzaga, La constitución española de 1978, 102. Also against an interpretation of the Constitution in favour of a sovereignty that is shared with the peoples of Spain, despite the explicit references contained in the preamble, Trujillo, “Reflexiones sobre la soberanía,” 183. Similarly, denying a shared sovereignty within the state, cf. Peralta, “Soberanía nacional y estado constitucional,” 318 ff., especially 327. 33. Ferraiuolo, “La via catalana,” 40 (our translation). 34. Herrero de Miñón, Derechos Históricos y constitución, 90, for instance, points out that the right to the autonomy of Catalonia, just like the historical rights of the regional territories, precede the Constitution and give it its basis; the autonomy of Madrid, instead, does not. 35 Crisafulli, “Vicende della ‘questione regionale’,” 457. Sovereignty and Autonomy in the Case Law of the Italian and Spanish Constitutional 259 Courts: Remarks was not, thus, a way of dealing with a previous “territorial matter,”36 but it was a specific technique developed by contemporary constitutionalism in order to limit power and protect rights. Requests for more autonomy were absorbed by the special statutes, which allowed the coexistence of territorial realities that have distinct traits because of geographical (the Islands) or linguistic (Trentino Alto Adige) special conditions. It is worth citing, in this perspective, the Sicilian case, which had been characterized in the 40’s by an independentist movement (MIS) that gathered secessionist tendencies. This political force participates in the elections of the Constituent Assembly (June 2, 1946), obtaining 0.7% of the votes (8.7% in Sicily) and four seats. However, once the Italian Constitu- tion was approved, the movement, in the regional elections of 1951, did not obtain any seat and disappeared from the political scenario. This event shows how territorial tendencies have been absorbed by the constitutional pact and by the following national political dynamics. It is not by chance that when a territorial problem emerged in Italy during the 90’s, it was not linked to the special regions, but to a vague Padania, which had no traces in the constituent debate. The regions appear to be a product of the Constitution, without expressing their own pre-existing identity. Only twenty years after the adoption of the Constitution, indeed, they were implemented, while the transitional provisions stated that the new regional councils were to be elected one year after the entry into force of the Constitution (disp. VIII), and that the Parliament, within three years, had to make national legislation consistent with the new regional context (disp. IX). The Italian regions began to function almost concurrently with those in Spain. This aspect shows that behind their creation there was not a strong and organized social movement, engaged in the realization of the constitutional design. The Italian party system, in fact, is not characterized by the presence of territorial parties, but it is a system in which, for many years, the same forces that operate at the national level have been expressed at the local level, repeating, on a reduced scale, the same national ideological conflicts (not affected by local factors).

36. On the topic, Veronesi, “Sulle tracce dei concetti di Nazione di Unità nazionale,” 322. The author cites the formulation of art 6 of the Constitution (“The Republic safeguards linguistic minorities by means of appropriate measures”). The Constitution does not use a different formulation, such as “national minorities on linguistic basis.” This choice “also excludes the suggestion that the Italian state is, in practice, plurinational, and that the proof of this may be found in the existence of a series of linguistic minorities” (our translation). 260 The Catalan Process

These elements of discontinuity between Italian and Spanish regionalism, however, are not the basis of the different interpretation of the constitutional texts. The notion of autonomy that we find repeated in the decisions discussed here is, in both cases, expression of a derived and limited power. Sovereignty, instead, which is considered together with the adjective “popular” (in the case of the decisions of the Constitutional Court of Spain) or by itself (in the case of the Italian Court), is an attribute of the state, while the regions are not involved.

12.3. Sovereignty in the Reform Stage of the System

It is also worth comparing the case law of the two courts in the second stage of development of the territorial systems. In Italy this phase is expressed by the decisions that followed the reform of the Title V of the Constitution. In Spain, instead, it is expressed by the decisions of the year 2000 related to the emergence of a new period (of crisis, for some authors) characterized by statute reforms aimed at promoting the differences between the autonomous communities (e.g. the Catalan case).37 In Italy, one of the most significant decisions was the one concerning the establishment of a Consulta on the statute of autonomy and sovereignty of the Sardinian people (365/2007). The Court believes that it is necessary to move from the study of the concept of sovereignty, since that term has a “polysemantic” nature. For the Court, in fact, there are at least three meanings of the expression: a first one, bound to international relations, expresses the character of independence of a state system from the other subjects of the international order; a second is connected to the processes of federalization and mani- fests the original nature of the legal systems involved; a third indicates the highest position of a constitutional body within a state order. The Court believes that the transformation of the notion of sovereignty at the international level, expressed mainly through European Community law, is not relevant in this case. The Court observes that art 5 and 114 of the Constitution and art 1 of the Sardinian Statute use the term autonomy to indicate the condition of local authorities, in compliance with the choices, expressed in the Constituent Assembly, aimed at rejecting a federal perspective. For the

37. Aja, Estado autonómico y reforma federal, 67 ff. Sovereignty and Autonomy in the Case Law of the Italian and Spanish Constitutional 261 Courts: Remarks

Court, “expecting to use now in the same legislative expression, as the main guideline for the drafting of a new special statute, the concepts both of autonomy and of sovereignty means juxtaposing two conceptions that are radically different from a historical and logical point of view (it would be possible to talk about a real oxymoron, rather than of a hendiadys), the second of which is certainly extraneous to the essential configuration of regionalism as it is outlined by the Constitution and by the special statutes” (our translation). For the constitutional judges, the reference to sovereignty would allow some elements that belong to federal systems and which are considered inconsistent with the level of autonomy acknowledged by our legal order to be inserted into the new special statute. This idea has been criticized by some scholars because it is based on old theoretical premises. As a matter of fact, the Court explicitly cites elaborations that have been reconsidered. The decision still considers sovereignty as an element that can distinguish between regional and federal states, while several authors point out the continuity between the two forms of state. Also the idea according to which federal models are the result of historical processes “in which the territorial entities that compose the federal state maintain forms and elements that are affected by their pre-existing condition of sovereignty” (our translation) does not seem consistent with recent tendencies. If this approach is compatible with American and Swiss federalism, it is not able to describe the evolution of the Belgian system.38 In this decision there is no reference to popular sovereignty and to its relationship with territorial realities. The Court simply acknowledges the state’s position of supremacy, not affected by the new regional powers, without considering the possible consequences that derive from popular sovereignty. But we could also expect a different motivation, considering the reasoning of decision no. 106 of 2002 on the possibility of giving the name “parliament” to regional councils.39 The constitutional judges state that the idea according to which the Parliament holds the popular sovereignty, while the territorial autonomies do not contribute to shape its essence, cannot be accepted in its entirety. Indeed, since art 1 of the Constitu- tion assigns sovereignty to the people, it is not possible to identify its boundaries. In other words, the people’s sovereignty is expressed not only

38. On this aspect, Caravita, “Il tabù della sovranità,” 6 ff. 39. Frosini, “Il nomen Parlamento,” 609 ff. 262 The Catalan Process through representation, but it pervades the whole Constitution, assuming a wide range that certainly also includes the recognition of the territorial autonomies. In this decision, the regions finally enter the reflection on sovereignty: they are not pushed away, but are considered an expression of sovereignty. 40 The Court also observes that the reform put territorial entities beside the state, as constituent elements of the Republic. For these reasons, sovereignty is not considered able to justify the illegitimacy of the statute. Sovereignty, in this decision, is delineated as a diffused power that is structured through the exercise of civil, social, and political rights.41 Thus, sovereignty is broken into pieces, and cannot be considered indivisible anymore.42 Regions participate in it, and cannot be excluded. It is clear that the principle of popular sovereignty entails that the state-structure is not the only holder of sovereignty, but a mere tool of its expression. Despite this opening, the opposition sovereignty-autonomy returns both in decision no. 365 of 2007, and in the recent decision no. 118 of 2015 on the referendum for the independence of Veneto. The Court declares the illegitimacy of this referendum because, on the one hand, it relates to “fundamental choices of constitutional level, not allowed in regional referendum” (our translation); on the other hand, it “suggests an institutional subverting that is radically incompatible with the fundamental principles of unity and indivisibility of the Republic, expressed by art 5 of the Constitution” (our translation). In Italy, in fact, the unity of the Republic is a fundamental principle that cannot be amended. The political and social pluralism that the regions also express should remain within the framework of the unity of the Republic. The Court also reaffirms that “pluralism and autonomy do not allow the regions to qualify themselves in terms of sovereignty, nor may their government bodies be considered similar to those of national representation” (our translation). Therefore, regional voters cannot be called to decide on a proposal of secession, in order to create a new sovereign subject.43 In Italy it is not possible to question the unity of the Republic, not even with the procedure delineated by

40. Ibidem, 610 . 41. De Fiores, “Alcune osservazioni su popolo, stato e sovranità nella Costituzione italiana,” 174 ff. 42. Modugno, “La dicotomia,” 63. 43. The differences between the Venetian and Catalan referenda are analyzed by Serges, “Autodeterminazione.” On the topic see also Ferraiuolo, “Due referendum.” Sovereignty and Autonomy in the Case Law of the Italian and Spanish Constitutional 263 Courts: Remarks art 138. Art 5, in fact, is a limit to the national popular sovereignty itself, which is exercised under the Constitution. Even if all Italians wanted to amend art 5, in fact, they could not do it using an established power, but to do so they would need to exert a constituent power. Thus, the reference to the difference between sovereignty and autonomy seems out of context, since national popular sovereignty itself is exercised in the manners and within the limits of the Constitution: in other words, it appears to be a limited power. We also find reference to sovereignty, even if with a different emphasis, in recent Spanish case law. In particular, in decision no. 103 of 2008 on Basque law no. 9 of 2008, which establishes a referendum on the beginning of a negotiation process with the state to achieve a democratic pact on the right to decide of the Basque people. The Constitutional Court believes that this law is illegitimate because it acknowledges the existence of a new sovereign subject external to the Spanish people, without having mediated a previous constituent decision that can only be articulated by means of a constitutional reform under art 168. As it emerges from the decision, the law presupposes the existence of a subject, the Basque people, which holds the right to decide and is able to negotiate a new relationship with the state. For the constitutional judges, a different pact between the state and the Basque community cannot be achieved by a decision of the Basque people alone, but the choice belongs to the Spanish people, who would have to act through the rules of reform delineated by art 168. This pact, in fact, concerns the constitutional order and put the unity and identity of the sovereign subject into crisis. The Court recalls also decision no. 247 of 2007, in which it had stated that “the Constitution moves from the unity of the Spanish nation, which is established in a social and democratic state of law, whose power derives from the Spanish people, who hold national sovereignty” (FJ4, our translation). In this case, therefore, unlike what happens in Italy, the Court believes that it is possible to question the current configuration of the autonomy state, but it says that the path to follow is different: not the referendum, but the amendment of the first part of the Constitution. In Italy, instead, as we pointed out, the question asked to the voters in Veneto cannot be evaluated, not even in the form of a constitutional reform. There are, then, two different limits of sovereignty. In the Italian case, sovereignty is an established power, i.e. it is exerted within the Constitution, which provides materials and formal limits. In Spain, instead, it depends on who exercises sovereignty: if it is all the Spanish people, in the manners provided by art 264 The Catalan Process

168, it is possible to question the structure of the form of the state. Thus, sovereignty may emerge in all its extension, not encountering material obstacles to its deployment. Indeed, the problem depends solely on the subject who claims to exercise this power: the Basque people. It is also interesting to cite decision no. 42 of 2014, on the declaration of sovereignty and the right of the Catalan people to decide. The Con- stitutional Court reaffirms that the only sovereign subject is the Spanish people in an exclusive and indivisible manner. For the Court, therefore, it is not possible to recognize this character to the people of an autonomous community without at the same time denying national sovereignty.44 Again, we see the contrast between a sovereignty that belongs to all the Spanish people and one attributed to the Catalan people, which is the centre of the declaration of illegitimacy. This reading has been widely criticized on the basis of the fact that the Court adopts a notion of sovereignty almost as a “dogma of faith,” “a mysterious and elusive reality, of course not amenable to any process of updating or critical review.”45 Scholars point out that the transformation of sovereignty is not mentioned in this decision, which does not explain why, on an internal level, it “has not undergone deep changes that allow a split of the concept on a territorial basis.”46 Therefore, in the decisions of the Constitutional Court, the main point is the different quality attributed to the national people, which is the only one that is sovereign. The matter is linked to the ideas of pueblos and nacionalidades, and to the difficult compromise, laid down by art 2, between unity and territorial identities. In Italy, instead, sovereignty is always connected to the state, and regional peoples are not taken into account. The different perspectives of the two courts derive from the diversity of the constitutional texts, but also from the different histories that affect the territorial claims. However, the results do not appear dissimilar, considering the denial of a regional participation to sovereignty. All these decisions appear to belong to a homogeneous group based on a specific theoretical approach, which is applied to the individual cases: a notion of sovereignty as an attribute of an original, exclusive and unitary power that can never be shared with the internal entities of the state. From this perspective, the regions are and remain autonomous, meaning that

44. On this decision cf. Fossas, “Interpretar la política,” 273 ff. 45. Ibrido, “Il ‘derecho a decidir’ e il tabù della sovranità catalana,”14 (our translation). 46. Ibidem, 14-15 (our translation). Sovereignty and Autonomy in the Case Law of the Italian and Spanish Constitutional 265 Courts: Remarks the powers attributed to them derive from the state, which identifies the characteristics and limitations. The courts always escape the topic of the transformation of sovereignty due to the processes of supranational integration, and distinguish the two levels — internal and external — of sovereignty in order to avoid creating a breach in the impermeable fortress of the state with regard to the requests of territorial entities. This case law in fact maintains the relationship centre-autonomy within a framework that enhances the state’s position. In other words, there is a track of conservatism both in the development of the models and in the understanding of autonomy in its ongoing relationship with the centre. Autonomy is read in contrasting terms with the centre, while it would be possible to advance several readings of this relation that focus on an organization of powers defined through the different territorial levels.

12.4. The Difference between External and Internal Sovereignty: An Acceptable Dichotomy

The issue of sovereignty returns in decisions concerning the relationship between the national and EU systems. This case law, however, shows a different view of sovereignty, not comparable to the one expressed in decisions on the powers of the territorial autonomies. Starting with the Italian Constitutional Court, we can observe how, since the first decisions on the topic, the European system has been linked to art 11of the Constitution, which allows some limitations of sovereignty for the establishment of an order that guarantees peace and justice among the nations. For instance, in decision no. 98 of 1965, the Court states that art 11 legitimates the limitations of the state powers with regard to the exercise of the legislative, executive, and jurisdictional functions that are necessary to the establishment of a community of European states. Thus, the member states have attributed some sovereign powers to European institutions, building an independent and autonomous legal system. In decision no. 170 of 1984, it affirms that the two systems (internal and European) are “distinct and autonomous, even if coordinated, according to the distribution of powers laid down by the Treaty” (our translation). In this decision, the Court also recognizes the self-limitation of the sovereignty of the state, which decides to retrocede from the field occupied by Community law. 266 The Catalan Process

The Court also identifies the limits to this international opening. In decision no. 183 of 1973, it says that European integration cannot violate the fundamental principles of our constitutional system and the inalienable rights of the human person. However, the counter-limits, which are the only protection for state sovereignty, appear as a blunt weapon, since they are expression of a residual and exceptional power that may be ac- tivated only in extreme cases of non-compliance with the fundamental provisions of the constitutional text. As a matter of fact, in more than sixty years of Italian participation in the EU, the Court has only discussed the application of the counter-limits in few ocasions. Since decision no. 98 of 1965, in fact, the Court believes that the European system presents guarantees similar to the national ones. Therefore, even during the stage of initial development of the European system, the Court considered the democratic principle to be satisfied by Community law, although the regulatory power was attributed to the pair Council-Commission, while the Parliament, not directly elected by the citizens, had only a limited power of intervention. Europe’s democratic deficit, on which scholars have debated for a long time, is accepted by the Court, which believes that the protection of the democratic principle and fundamental rights is satisfied at a supranational level. This is a peculiar approach, if compared to the one adopted with regard to the autonomies. Certainly, the Constitution also attributes legislative powers to local authorities, limiting the legislative powers of the Parliament. However, in the case of the regions, these powers cannot be seen as a limitation of sovereignty, because sovereignty is also expressed through territorial pluralism. The regions share the sovereignty of the people; they are a way of its expression in a regime of social and institutional pluralism. Despite this clear difference, in the same years (the 60’s and 70’s), while the constitutional case law in favour of the relationship between the Italian and the Community systems was being developed, decisions on the state-region relationship followed a direction of restraint and distrust of these new institutions. In other words, the Court is inclined to accept the limitations of sovereignty that derive from the EU, but not a greater scope of action of regional and local entities; in practice, the Court has defended the prerogatives of the centre against the regions more than invasions from the outside. The Spanish Constitutional Court has also been more inclined to accept limitations of sovereignty that come from the outside. In the well-known opinion 1/2004, it verifies the consistency of the Treaty that established a Sovereignty and Autonomy in the Case Law of the Italian and Spanish Constitutional 267 Courts: Remarks

Constitution for Europe with the national Constitution. The judges move from the idea that the transfer of powers “imposes inevitable limits on the sovereign powers of the state, acceptable only if European law is consistent with the fundamental principles of the social and democratic state of law established by the Constitution” (our translation). It is clear that the Court is in favour of the limitations of sovereignty that derive from the EU, whose only boundaries are the fundamental principles.47 Scholars point out that “it is assumed that the participation of Spain in the European Union inevitably causes a modulation of the scope of several constitutional provisions.”48 A modulation, an exception, a transformation in the interpretation of the constitutional rules that is easily accepted, except for the limit of the fundamental rules.49 Sovereignty, therefore, can be limited when it derives from international dynamics, while it re-emerges as an indivisible whole in internal relations. In the decision on the Statute of Sardinia, the Italian Constitu- tional Court explicitly embraced this distinction, admitting that the term “sovereignty” may have different meanings depending on its position: its content changes in international relations, in the process of federalization, or in the highest position of the bodies within a state order. A consequence of this plurality of contents is that “the progressive erosion of national sovereignty at the international level, especially as a result of the gradual emergence of the process of European integration” (our translation), does not entail a different interpretation of the state-region relationship. There- fore, there are at least two sovereignties, i.e. one national and one external. This differentiation leads, over time, to a paradoxical situation: it is possible to accept constitutional amendments such as the one on budget balance — which, for Italian and Spanish scholars, deeply affects the form of state — but not the claims of territorial communities.50

47. Judge J. Delgado Barrio, instead, criticized this approach in his dissenting opinion. 48. Saiz, “De primacía, supremacía y derechos fundamentales en la Europa integrada,” 58 (our translation). On the EU-related constitutional changes, cf. Muñoz, La UE y las mutaciones de Estado. 49. The Constitutional Court recalls that once the integration is achieved, the Constitution is no longer the framework of validity of EU rules, but the Treaty itself. 50. On the reform of art 135 Cost. see Medina, “Reforma del artículo 135 CE,” 131 ff. Al- bertí, “Reforma del artículo 135 CE,” 167 ff; Ridaura, “La reforma del artículo 135 de la Constitución española,” 237 ff; Álvarez, and Souto, Constitucionalización de la estabilidad presupuestaria. 268 The Catalan Process

However, this interpretation is not the only one possible. In particular, a different view is adopted by the German Constitutional Court, which has often defended the prerogatives of both the national Parliament and the national identity.51 In the decision on the Treaty of Lisbon, for example, the role of the principle of conferral emerges. Under this principle, the Union shall exercise only the powers expressly conferred by the member states, which remain the “lords of the Treaties.” The supranational order, in fact, is defined as autonomous, i.e. holder of derivative and limited powers that derive from a choice of the member states, which hold the power of com- petence. Significantly, some sectors connected to the sovereignty of the people face major obstacles in their transfer to the Union (e.g. fundamental rights, citizenship, management of criminal law and of the use of force, fundamental fiscal decisions on revenues and expenditures, principles of the welfare state, family law, relations with religious communities). The Court states that there are powers that cannot be transferred because they are linked to the national constitutional identity. In these cases, only the clear expression of the will of the German people can allow an international organization to affect its constitutional identity. In this decision the notion of sovereignty again expresses the idea of an original power of the state, while the Union is a derivative entity that exerts only powers that are explicitly conferred. As a matter of fact, in several passages the decision uses the expression Staatenverbund, referring to a Union of States. Sovereignty plays an important theoretical role as the supreme decision-making power over a territory, which still belongs to the member states.52 Sovereignty is used to affirm that the extension of European powers does not entail the creation of a European state. If we compare this case law with the one concerning relations with the Lander, a different perspective emerges: there is an opening to the position recognized to territorial entities. The Court has defined the Lander as

51. In the case law of the Bundesverfassungsgericht, the notion of national identity has been used with different purposes, such as to limit the primacy of Union law and the transfer of competences, and it is the basis of a control power over ultra-vires acts. On this decision cf. Reestman, and Besselink, “On the Lisbon-Urteil,” 341 ff; Halberstam, and Möllers, “The German Constitutional Court,” 1241 ff; Bieber, “An association,” 391 ff. On the case law that precedes the decision on the Treaty of Lisbon, Aziz, Sovereignty Lost, Sovereignty Regained. 52. Tomuschat, “The deference of national identity,” 211, points out how the German Court used the notion of sovereignty extensively in this decision. Sovereignty and Autonomy in the Case Law of the Italian and Spanish Constitutional 269 Courts: Remarks

“states with their own sovereign public power — even if limited — that does not derive from the federation, but is acknowledged by it” (BVerfGE 1, 14, 34, our translation). Considering this definition, it emerges that the territorial autonomies are more protected in this case law.53 The Bundesver- fassungsgericht defends national sovereignty against the external, and does not use this approach when it comes to verifying the internal structure: the territorial entities are considered holders of their own powers.

12.5. Conclusion

The case law analyzed shows how political conflicts within the evolution of centre-autonomy dynamics have often been left to constitutional courts. The event of the Catalan statute is a clear example of this tendency and of the possible effects on the stability of the constitutional system. Anti-crisis policies, designed to comply with European standards of budget balance, have further increased the state-autonomy conflict, putting the constitutional judges in the centre of political conflict again. The growing number of decisions that derive from cases on resource management, on how to spend it and where to find it, has seen the state engaged in reducing regional self-government. At an emergency stage, like today, the trend that has emerged from constitutional case law has been clearly to limit the powers of regional and local entities. Both in Italy and in Spain a “case law of the crisis” is being developed. It shows a similar tendency towards re-centralization, not only by limiting the costs of territorial entities, but also by reducing their ability to decide how to increase their revenues. Although the number of decisions of the two courts is not comparable, given the delay of the Constitutional Court of Spain in deciding matters, we can highlight some points of contact that show how, even in Spain, the line that is followed is settled on the same tracks, represented by an increasing use of the decree-law, by a broad idea of state powers over economic planning by a reduction of spending powers and taxation autonomy. Basically, it takes a centralist vision that pushes regions and their choices away.54

53. Arroyo, “Cualidad estatal, soberanía, autonomía,” 51. 54. Cf. Albertí, “El impacto de la crisis financiera,” 63 ff; Viver, “L’impacte de la crisi econòmica global,” 146 ff. 270 The Catalan Process

This data shows how autonomy is seen as a cost and a factor that worsens the crisis.55 This approach appears paradoxical considering that theoretically federalism (in a broad sense) is considered in terms of the efficiency of the system. Also in terms of maintenance of the welfare state, the exercise of social policies on a territorial basis should entail more rational decisions, consistent with the real needs of citizens, which may vary according to the different territories. The scarcity of resources requires an aware and targeted use, which the local-regional dimension should be able to guarantee better. This approach, which certainly faces a crisis of political representation, concerns both the central and the local level, but the response of re-centralization is certainly not the solution to the crisis of representation. The approach of the relationship sovereignty/autonomy that emerges from the decisions of the Italian and Spanish Constitutional Courts is thus consistent with the jurisprudential tendencies that can be observed in the current crisis. In a context subject to strong centripetal pressures, the defence of sovereignty becomes the defence of a centralist policy, in which the autonomies are given less and less room for action. The use of conceptual categories such as sovereignty-autonomy is useful to the emergency policies, in which regions are considered as a cost. The effort to redefine this relationship with conceptual paradigms that are more consistent with the elaboration of scholars appears as a necessary step to preserve the spaces and democratic potentials inherent in the recognition of territorial autonomies.

References

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55. Cf. Mangiameli, “Crisi economica,” 28, who explains that the idea seems to be that regions and local governments represent a waste of financial resources that should be elimi- nated, without any consideration of the consequences on the citizens and the territories: cuts in local democracy diminish the ability of local and regional entities to operate, and take away the accountability of the local political class, which, due to the lack of resources, will eventually stop delivering services to citizens. Sovereignty and Autonomy in the Case Law of the Italian and Spanish Constitutional 271 Courts: Remarks

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Van Staden, A., and H. Vollaard. “The erosion of State sovereignty: toward a post-territorial world?” In: G. Kreijen (ed.). State, Sovereignty and International Governance. Oxford: Oxford University Press, 2002. Veronesi, P. “Sulle tracce dei concetti di Nazione di Unità nazionale.” Quaderni Costituzionali, 2011. Viver i Pi Sunyer, C. “El reconeixement de la plurinacionalitat de l’Estat en l’ordenament jurídic espanyol.” In: F. Requejo, and A.-G. Gagnon (eds.). Nacions a la recerca de reconeixement: Catalunya i el Quebec davant el seu futur. Barcelona: IEA, 2010. . “L’impacte de la crisi económica global en el sistema de decentral- ització política a Espanya.” Revista d’Estudis Autonòmics i Federals, no. 13 (2011). Volpi, M. “Stato federale e Stato regionale: due modelli a confronto.” In: Quad. cost., 1995. Walker, N. “The Idea of Constitutional Pluralism.” Modern Law Review (2002). . “Late sovereignty in the European Union.” In: N. Walker (ed.). Sovereignty in transition. Oxford, Portland, Oregon: Hart publishing, 2003. . “Sovereignty frames and sovereignty claims.” In: R. Rawlings, and P. Leyland (eds.). Sovereignty and the Law. Domestic, European and Inter- national Perspective. Oxford: Oxford University Press, 2013. 13 Clash of Legitimacies in Catalonia and Spain: the Imperial Logic of Modern Constitutionalism versus Multinational Federalism

Alain-G. Gagnon, Marc Sanjaume-Calvet

In a historical coincidence, during the same time period in which the creation of a new autonomous Catalan Parliament was being approved, an ample majority of Canadian (and Quebecer) citizens elected the Liberal Party’s Justin Trudeau as prime minister. Trudeau is the son of Pierre Elliott Trudeau, the author of the constitutional repatriation of 1982 and architect of territorial federalism in this North American country. While the Quebec electorate was thinking more along anti-conservative lines (after the Stephen Harper governments), majority alongside the 20th and 35th anniversaries of the referendums of 1995 and 1980 respectively, the stunning electoral majority obtained by Justin Trudeau created an unusual atmosphere in Quebec. With sovereignism electorally squelched, federalism seems to be enjoying apparent good health in Canada, although there are underlying tensions and Quebec has still not signed the repatriated Constitution of 1982. In this chapter, we will address the Catalan case from a Quebec and Ca- nadian point of view. In the first place, we will analyze the legitimacy and legality of the demands formulated in recent years by the Catalan Parlia- ment and the principal forces in favour of Catalan sovereignty. We will then attempt to formulate a federalist-style response based on the Canadian case and the accommodation of the right to secession in the case of Quebec. Fi- nally, based on this brief comparison, we will point out the shortcomings in the Spanish territorial model when it comes to recognizing plurinationality 276 The Catalan Process and the possible scenarios that this implies for the current political conflict. Our conclusion is that, in light of the Quebec experience, even a federal solution should be submitted to the popular will for it to be legitimate, and it cannot be based on the imposition of the national majority over the minority nation. Any final scenario, whether it be multinational federalism or secession, should be considered from the perspective of democratic and federal principles and respect for minorities.

13.1. Legitimacy, Legality and Democratic Shortcomings

The debate about Catalonia’s right to hold a referendum on its political status, and also its right to secession, has marked the Spanish political agenda in recent years. On the one hand, the rigidity of the Spanish Constitution, alongside its very strict interpretation by the Constitu- tional Court (CC hereafter), makes any opening in the recognition of Catalonia’s right to decide difficult. Beginning with Articles 1.2 and 2, the Constitution establishes, respectively, “National sovereignty is vested in the Spanish people” and “the Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible country of all Spaniards.” While it is true that the “right to autonomy of the nationalities and regions” is recognized in Article 2,1 the lack of political will in the parliamentary majority in the Congress of Deputies, in the Partido Popular [Popular Party] (PP) and in the Partido Socialista Obrero Es- pañol [Spanish Socialist Workers Party] (PSOE), has prevented an open reading of the constitutional text to channel the demands formulated by the parties that have supported Catalan autonomy in recent years. The rejection of the Statute of Autonomy of Catalonia by the PP, even though it was negotiated by Zapatero’s PSOE in Parliament, and subsequently by the CC with its 2010 ruling, provoked a pro-sovereignty response that has still not subsided. As with the case in the Basque Country, where the proposal by Lehendakari Ibarretxe and the Basque Parliament to hold a consultation was rejected in the CC’s 10/2008 ruling, each of the Catalan government’s attempts to submit Catalonia’s constitutional future to a referendum since 2012 has failed. In September, 2015, they

1. See: http://www.congreso.es/constitucion/ficheros/c78/cons_ingl.pdf [accessed, Octo- ber 2017]. Clash of Legitimacies in Catalonia and Spain: the Imperial Logic of Modern Constitutionalism 277 versus Multinational Federalism ended up turning autonomous community elections into a plebiscite to try to exercise the right to decide. In effect, the legislative session that ended in September, 2015, focused, on the part of the parties in favour of Catalan sovereignty, on trying to find a way to hold a referendum on self-determination. This was the mandate obtained at the ballot box in 2012, when all the Catalan parties, except PP and Ciudadanos [Citizens], included the “right to decide” in their respective electoral programs. It was interpreted in various ways, but with the common denominator of vindicating a consultation in Catalonia on its constitutional future (as a federated or independent state, through legal means, negotiations or unilaterally). The Catalan Parliament’s January, 2013 Declaration of Sovereignty, Resolution 5/X, following what was called the Pact for Freedom between Convergència i Unió [Convergence and Union] (CIU) and Esquerra Republicana de Catalunya [Republican Left of Catalonia] (ERC) to form a government, sought to give political impetus to the process of self-determination and appealed to the principle of democratic legitimacy in its first two points: “1. Sovereignty. The people of Catalonia has, for reasons of democratic legitimacy, the nature of a sovereign political and legal subject”; and “2. Democratic legitimacy. The process of exercising the right to decide shall be strictly democratic and it shall especially ensure pluralism and respect for all options, through debate and dialogue within Catalan society, so that the statement resulting therefrom shall be the expression of the majority will of the people, which shall be the fundamental guarantor of the right to decide.” In its seventh point, it affirmed: “Legality. All existing legal frameworks shall be used to implement the reinforcement of democracy and to exercise the right to decide.”2 The Government in Madrid appealed the Declaration, and in March, 2014, the Constitutional Court declared the references to the Catalan people’s right to decide and the affirmation of their sovereignty unconstitutional, although the text of the ruling would recall that the aspirations defended in the Declaration are subject to being defended within the framework of the Constitution.3 The ruling also refers to the Quebec case in order to confront the CC’s decision with the Canadian Supreme Court’s 1998 opinion about Quebec’s right to secession, which they consider “of the

2. See: http://www.parlament.cat/document/intrade/7176 [accessed, May 2016]. 3. See: http://www.tribunalconstitucional.es/es/salaPrensa/Documents/NP_2014_026/2013- 01389STC.pdf [accessed, May 2016]. 278 The Catalan Process

same tenor.”4 However, in our way of seeing things, the Spanish CC did not reflect the spirit of the Canadian Supreme Court on that occasion (see following sections). If we delve more deeply into the strategy of the Catalan government, there were five legal means studied by the Advisory Council for the Na- tional Transition (CATN), the consultative organization for the process of self-determination created by the Catalan government and the Institute of Studies for Autonomous Region (IEA).5 These means attempted to place the proposed consultation within a legal framework: (1) Article 92 of the Constitution that foresees the organization of referendums for “political decisions of special importance,” although the object and subject (Catalo- nia) of the referendum probably would not fall within the scope of that Article;6 (2) transferring the state’s ability to call referendums to the Gen- eralitat through Article 150.2 in an organic law (which is what happened in Scotland); (3) Catalonia’s Law of Popular Consultations (4/2010) that requires the consent of the state for holding binding consultations; (4) the Law of Non-referendum Consultations, which — as of August 2017 — is still awaiting parliamentary enactment, which only involves Catalan institutions in agreement with Article 122 of the Statute, although it could be appealed by the state and (5) constitutional reform, which would require three-fifths of the Spanish Parliament in an ordinary procedure (or two- thirds for an aggravated procedure) (see summary in Table 1).

4. See: http://www.tribunalconstitucional.es/es/salaPrensa/Documents/NP_2014_026/2013- 01389STC.pdf [accessed, May 2016]. 5. See: “Informe sobre els procediments legals a través dels quals els ciutadans i les ciutadanes de Catalunya poden ser consultats sobre llur futur polític col·lectiu,” IEA, 2013. Available at: http:// presidencia.gencat.cat/web/.content/ambits_actuacio/desenvolupament_autogovern/iea/ assessorament-al-govern/documents/informe_consultes_cat.pdf [accessed, October 2017]. 6. López Basaguren, “La secesión,” 87-106. Clash of Legitimacies inC atalonia and Spain: the Imperial Logic of Modern Constitutionalism 279 versus Multinational Federalism

TABLE 1. Five Legal Means for Holding a Consultation in Catalonia according to the Advisory Council for the National Transition (CATN)

Means Organization Description Guardianship Central government Article 92 Spanish Constitution Transfer of Powers Generalitat/Central Article 150.2, transference government (Spanish Constitution) Catalan legality and Generalitat Law 4/2010, requires consent consent Catalan legality Generalitat Law of non-referendum consultations (suspended CC) Constitutional reform Generalitat Ordinary (or aggravated) process, qualified majorities Congress

The first legal means chosen by the Catalan government and its partner was the request for the surrender of authority to call referendums through article 150.2 (#2). The proposed law was voted on in the Catalan Parliament in January, 2014, to be transferred to the Spanish Parliament. In the Catalan Parliament, it received the support of 87 Deputies; 84 from the CiU, ERC, post-Communist and ecologist ICV-EUiA [Initiative for Catalan Greens-United and Alternative Left] block, plus three Deputies who broke with the discipline of the Partit Socialista de Catalunya [So- cialists’ Party of Catalonia] (PSC). The pro-independence and anticapi- talist Candidatura d’Unitat Popular [Popular Unity Candidacy] (CUP) abstained from voting, arguing that holding the referendum was a useless gesture since the majorities in Parliament would still reject the proposed law. PSC suggested that the chosen path entailed “playing the victim” and complained that it did not request dialogue with the central government, but they could not avoid tensions within their group since the representatives who broke with the party line pointed to PSC’s commitment to the right to decide within legal means.7 Subsequently, in April, 2014, in the Spanish Parliament, the proposal received the support of only 47 Repre- sentatives from nationalist and regionalist parties (alongside Izquierda Unida [United Left]), and it would be rejected by a very wide majority of 299 Representatives, in other words, by all the national parties as well as

7. See: http://www.abc.es/local-cataluna/20140116/abci-advierte-peticion-consulta-Par- liament-201401161148.html [accessed, May 2016]. 280 The Catalan Process

Unión del Pueblo Navarro [Navarrese People’s Union] and Foro Asturias [Asturias Forum].8 Once the second means as proposed by the CATN ran its course, the Government tried to use means #4, after confirming Madrid’s lack of political predisposition for an eventual constitutional reform or the question- able legality of applying article 92 to hold a referendum in Catalonia alone. However, the law of popular non-referendum consultations and processes of participation (approved by an ample majority of the Catalan Parliament, see Table 2) was suspended as a precautionary measure by the Constitutional Court on September 30, 2014, at the request of the Spanish government, as was the Decree to convoke the consultation. On November 4th of the same year, the Catalan government’s new convoking of participatory processes was also suspended by the CC. The final participatory process had, therefore, nothing to do with the planned official referendum due to the legal prosecution led by the Spanish authorities. It was organized by civil society and only supported by the Catalan government. Later on, the Cata- lan President, and two other members of their cabinet, were prosecuted and accused of civil disobedience, among other charges. From the legal point of view, the debate about the possibility of convoking a referendum in Catalonia continues.9 The debate on the different options or legal possibilities of authorizing a consultation continues to generate opposing opinions. For Professor López Basaguren, it is the lack of clarity in Article 92 of the Spanish Constitution that complicates the interpretation on whether a referendum on secession can be held in an autonomous community (with prior authorization by the central government and Parliament). That article establishes that “decisions of special importance” can be submitted to a consultative referendum and to “all citizens.” According to Basaguren, a flexible interpretation of the article could allow a referendum to be held: “In my opinion, there are some underlying problems, although given the lack of clarity of article 92, I believe a flexible interpretation of the constitutional norm should be imposed, so that the possibility of holding a referendum in a limited territorial area is accepted. Therefore, the government could request authorization from the Congress of Deputies to carry out a consultative referendum

8. See: http://www.abc.es/espana/20140408/abci-alminuto-debate-consulta-catalana-201404081448.html [accessed, May 2016]. 9 The current Catalan Government lead by Carles Puigdemont is promoting a referendum, without consent from Central Government, to be held the 1st October 2017. Clash of Legitimacies inC atalonia and Spain: the Imperial Logic of Modern Constitutionalism 281 versus Multinational Federalism in a certain area of the state territory (…).”10 However, a clearer solution proposed by López Basaguren would be to incorporate the possibility of holding a referendum on sovereignty into the Statutes of Autonomy (which would require explicit negotiations in future reforms). Although Article 122 of the Statute of Autonomy of Catalonia does consider it, it should be amended to include the possibility of organizing a consultative referendum on the question that will be negotiated with the central government to obtain their permission given article 149.1.32ª.11 It is worth noting that article 122 was already “emptied of content” in the 2010 ruling on the new Statute of Autonomy,12 which had been approved in the Catalan Parliament (2005), in the Spanish Parliament (2006), and in a ratification referendum in Catalonia (2006). Other Statutes, such as those in the Balearic Islands or Andalucía, also incorporated articles on public participation and consultations.13 In spite of these legal means, we have already commented that the conservative government and part of the opposition (especially the PSOE) have been inflexible about the eventual authorization of a consultation in Catalonia. The President of the central government, Mariano Rajoy, has maintained in several public addresses, such as an interview published in various European papers,14 that he “cannot and does not want to” authorize the consultation in Catalonia in contrast with Scotland since sovereignty resides in the entire Spanish people, as established in Article 2 of the Constitution.15 Pedro Sánchez, the leader of PSOE, also opposes the consultation and Catalonia’s right to self-determination.16 The only national parties that have positioned themselves in favour of the consultation are IU17 and Podemos. On the one hand, IU, along with ICV-EUiA, signed an agreement on the reform of the territorial model of the state

10. López Basaguren, “La secesión,” 102. 11. Ibidem, 103. 12. Castellà, “La función constitucional del Estatuto,” 86-90. 13. For a legal analysis of the powers of the Catalan Generalitat regarding popular consultations, see: Bossacoma, “Competències de la Generalitat,”241-286. 14. See El País, 8.12.2013. 15. For a detailed analysis of the arguments of the political actors in the Catalan case, see: Sanjaume-Calvet, “The Morality of Secession.” 16. Regarding Catalonia, Rubalcaba declared: “We should say no to self-determination, now and forever,” El País, 14.12.2013. 17. Within the Izquierda Plural [Plural Left] group in Parliament with 11 Deputies out of 350. 282 The Catalan Process

that recognizes Catalonia’s right to decide.18 Podemos [We Can], the political party led by Pablo Iglesias, positioned itself in favour of a consultation on secession (without specifying whether it should include the citizens of the entire Spanish state) and obtained a majority in Catalonia and sev- enty seats in the last general elections in Spain. On the other hand, the other new party, Ciudadanos, also rejected the calling of a consultation in Catalonia, which they consider unconstitutional. The recent elections, held December 20, 2015, have not changed anything in the present political deadlock. In spite of the rise of Podemos, and the decline of PP and PSOE, there is still a majority that is rejecting Catalan self-determination. Some information suggests that the majority position in Parliament, opposed to the authorization of a consultation on secession in Catalonia, does not correspond with Spanish public opinion and that there may be an important distortion of representation on this topic. Although after the waves of statutory reforms and the evolution of responsibilities in recent years, the territorial preferences of Spaniards are extremely diverse19 and those who vote for the Partido Popular would be likely to punish authorization, polls indicate that Spanish public opinion is nearly equally divided.20 There would be around 45%21 support both for and against the referendum in Catalonia. For that reason, in spite of the immobilism of the political elites in Madrid, we can expect a certain degree of acceptance of Catalonia’s right to decide in public opinion, although it may not currently be discernible in the face of the Partido Popular’s government and without the support of large media outlets. This situation has not changed after the 2016 December 20th elections. In any case, as Table 2 reveals, parliamentary votes led to an important collision of legitimacies. A majority of the Congress rejected the proposal for a referendum and is against secession, while a majority of the Catalan Parliament demands a consultation of self-determination (from 2012 to

18. Público, 29.05.2013. 19. Grau, “Self-government Reforms and Public Support for Spain’s Territorial Model,” 186-214 revealed that Catalonia and the Basque Country had public opinion tendencies that differed from the rest of Spain regarding the claims for more autonomy. See also Sauca, Identidad y derecho, 2010-229. 20. In a survey published in La Vanguardia and carried out by Feedback, 45% of Spaniards supported the idea of authorizing a consultation in Catalonia, but there was only 13% support among PP voters. See: http://www.lavanguardia.com/politica/20130909/54380163581/ division-espana-permiso-consulta-catalana.html [accessed, May 2016]. 21. See El Periódico, 8.12.2013. Clash of Legitimacies inC atalonia and Spain: the Imperial Logic of Modern Constitutionalism 283 versus Multinational Federalism

2015) expressed in the Declaration of Sovereignty of January, 2013 and, would subsequently be in favour of secession (after the elections of Sep- tember 27, 2015), an intention expressed in the Declaration of the Initia- tion of the Process of Independence. This Declaration, issued one year after the participatory process on independence (November 9, 2015), pass on the majoritarian mandate from the elections to the Parliament. This launched the process to create an independent Catalan state in the form of a republic and proclaimed the beginning of a participative, open, inte- grative and active citizen’s constituent process to lay the foundation for a future Catalan Constitution.

TABLE 2. Catalan Process Majorities and Minorities

Catalan Parliament, Barcelona

Support, Political Parties Representatives (135) 12/19/2012 Pact for Freedom 71 CiU and ERC 01/23/2013 Declaration of 85 CiU, ERC, ICV-EUiA Sovereignty and CUP (-2) 12/12/2013 Agreement on wording 87 CiU, ERC, ICV-EUiA and date/Consultation 9 and CUP November, 2014 01/16/2014 Request for a popular 87 CiU, ERC, PSC (+3), consultation ICV-EUiA 09/19/2014 Law on popular non- 106 CiU, ERC, PSC, ICV- referendum consultations EUiA, CUP 11/09/2015 Declaration of the 72 JxS and CUP initiation of the process of independence

Congress, Madrid

Support Political Parties Representatives (350) 04/08/2014 Request for the 47 CiU, IU, ICV-EUiA, consultation in Catalonia CHA, PNB, Amaiur, ERC, BNG, Nueva Canarias, Compromís and Geroa Bai 284 The Catalan Process

The process of self-determination in Catalonia presents a classic dilemma between legality and legitimacy but also between the will of the majority and the minority. The approach of the Spanish Government gives preference to a formal reading of the Constitution and democratic legitimacy in Parliament over the demands presented by the autonomous community of Catalonia regarding self-determination. The rigidity of Spanish authorities recalls what James Tully has theorized as the errors of contemporary constitutionalism, in other words the uniform interpretation of sovereignty, rights, legality etc. at the heart of nation-states. For Tully, that tradition supports the idea that agreement with cultural minorities (if they exist) are ad hoc and cannot be justified from the constitutional principles of the state. Along the same lines, Ferran Requejo points out how the contemporary democratic conception tends to view the demands of minority nations as “particularist deviations.”22 In sum, it seems that the treatment of Catalan demands follows the imperial logic of modern constitutionalism that excludes the possibility of a politics of recognition.23 While it is true that Catalan reality is far from the phenomenon of colonization to which Tully was referring, it does seem legitimate to speak of a confrontation between the legitimacy of power established against a form of “democratic constitutionalism” demanded by the pact and the recognition of the other. Tully presents two aspects that characterize the democratic logic that we also identify with a tendency to the federal pact: 1) the non-imperialist mobilization of political response; 2) the transformation of protest into pact and the opening of legal alternatives.24 Thus, this logic could be contrasted with a conception of constitutionalism that is kind to minorities and tries to accommodate their demands and promote the political pact. A classic solution, within Western states, passes through a more federal conception of the constitution that should also include the right to internal and external self-determination in its formulation. In the following section, we will briefly consider the case of the Canada-Quebec relationship in order to assess a few potential lessons for the Catalan case.

22. See Requejo, “El fuste torcido de las democracias,” 51-70. 23. Tully, Strange Multiplicity, 96-98. 24. See Tully, “Modern Constitutional Democracy,” 488. Clash of Legitimacies inC atalonia and Spain: the Imperial Logic of Modern Constitutionalism 285 versus Multinational Federalism

13.2. A Canadian Federalist Response: The Quebec Case

Liberal democracies have struggled rather poorly with secessionism and demands for internal self-determination. The institutional responses to diversity have ranged from a strengthening of centralization to minimize territorial differences (France), to regionalism, consociationalism or federal agreements in an attempt to accommodate minorities (Italy, the United Kingdom). Additionally, the recognition of the right to external self-determination or secession in democratic systems is a true rarity. Only Ethiopia and the islands of Saint Christopher and Nevis have specific clauses regarding secession and, in the case of Ethiopia, it is highly controversial. When considering the Spanish political situation, the Canadian case is useful for various reasons. In the first place, it is an example of a state that has tried to accommodate diversity through legislation and a conception of the federal territorial structure. In addition, in the Canadian case, we can speak about a model that spearheaded the issue. In the second place, the 1998 Supreme Court Reference on the Right of Quebec to secede and the 2000 Clarity Act constitute a unique case of the recognition of the right to secession on the part of a Constitutional Court and a detailed exposition of the principles that should govern it.25 Additionally, the development of the compatibility of individual and collective rights has been discussed at length.

13.2.1. Canadian Federalism: The Model and Its Contradictions

The Canadian federal structure is governed primarily by Acts from 1867 and 1982 and is asymmetrical (de jure and de facto) and complex. It combines self-government of the ten provinces, treaties at various levels with the indigenous peoples and three territories (Yukon, the Northwest Territories and Nunavut). Sections 91 and 92 of the Act of 1867 divide powers into federal or provincial powers. While the provinces are principally dedicated to cultural, social, and educational aspects as well as

25. Another recent case that we have not analyzed in this section is that of Scotland and the United Kingdom. Although they did so differently than Canada, the United Kingdom has accommodated the Scottish people’s right to decide with the 2014 referendum following the Pact of Edinburgh in 2012. The Canadian and United Kingdom cases seem to confirm a degree of flexibility in constitutional interpretation verses the rigidity of continental constitutionalism. 286 The Catalan Process welfare, health, infrastructures, economic regulation and development, Ottawa is assigned powers regarding foreign affairs, defence, criminal law, banking, and national interest. In addition, the central government has general responsibility over security, pensions, and unemployment. In fiscal matters, the central government and the provinces have similar powers of taxation. In general, the dynamics of Canadian federalism can be described as having an inter-governmental and highly executive logic, distanced from other cooperative models or models of coordination. In order to understand Canada today, one must be familiar with its origins, within the framework of historic loyalty to the British Empire (and to the Westminster model), alongside the need to accommodate francophone Canada, more specifically Quebec. The foundations of the federation and the interpretation of the Act of 1867 are not always a matter of consensus. From the point of view of English Canada, it is considered a success of state-building, developed during the 20th century, which allowed the federation to be strengthened, developing the country, especially after World War II, and generating a nation-building discourse in conjunction with the Charter of Rights and Freedoms of 1982, constitutional repatriation and the individualist multiculturality that owes a lot to the vision of Pierre Elliott Trudeau. However, there are various alternative visions of Canadian federalism that are worth noting. The imperialist nature of the federation has been permanently criticized by the spokespeople of indigenous peoples. Nei- ther can we say that there is a consensus about the federal model among francophone authors. Quebec has developed an alternative vision of the federation, which views it as a pact between peoples or nationalities (Eng- lish and French). From this point of view, the 1759 British conquest of French Canada and the interpretation of the federation as a compact, distanced from a unitarist vision, are granted greater importance. This way of interpreting the federation would be the basis for the sovereigntist proposals formulated principally by the independentist movement of Quebec (especially the Parti Québécois) from the 1960’s and 1970’s.26 In addition, it tends to be accompanied by criticism of federal shortcomings, from the lack of constitutional recognition of plurinationality to the difficulty of modifying the Constitution.

26. See Sanjaume-Calvet, “Federalismo pluralismo nacional y auto-determinación,” 151-188. Clash of Legitimacies inC atalonia and Spain: the Imperial Logic of Modern Constitutionalism 287 versus Multinational Federalism

13.2.2. The Canadian Approach: A Model for Catalonia and Spain?

The experience briefly related in the previous section, as well as the Ca- nadian constitutional tradition in general, cannot be automatically transferred to the Catalan case. As Benoît Pelletier, former Liberal Minister from Quebec, notes: “While Catalonia continues aspiring to an authentic federated Statute, Quebec already has it, and enjoys sovereign equality regarding Parliament and the central government within Canada as a whole, with real power, including in fiscal matters, and substantial autonomy that can be exercised almost without obstacles, all of this supported by the Constitution.” Pelletier also affirms that both Quebec and Catalonia “are civic nations that are established within plurinational countries (…) that insist on being recognized for what they are, in other words, differ- entiated national entities.”27 In other words, while the nature of the background political conflict is similar — specifically, the accommodation of a minority nation that is diverse (in both cases) and of a liberal nature in the heart of a plurinational, compound de facto state — the institutional response is clearly divergent in the degree of autonomy, federalization and recognition of plurinationality, but also in the specific question of the right to decide and the right to secession. In this section, we will address three notable aspects of the Quebec-Canada relationship that may be helpful for the Catalonia-Spain situation. a) Meech Lake Accord and its Late Victory: Asymmetrical Federalism We have already noted that the repatriation of the Constitution in 1982 signified the constitutional modernization of the country alongside the Charter of Rights and Freedoms. Both official bilingualism (English and French) and multicultural policies date to the recommendations of the Laurendeau-Dunton Commission (1963-1968) with Prime Minister Lester Pearson, and the 1971 Multiculturalism Act, spearheaded by Pierre Elliott Trudeau. Trudeau himself would elevate these policies to the constitutional level in 1982. However, and in spite of the support of Trudeau and the Liberal Party of Canada, the discrepancies on the status of the province in the federation led Quebec to refuse to sign the new Constitutional Act, which still has not been signed by the province, although the current

27. Pelletier, “El Quebec i Catalunya,” 15-20. 288 The Catalan Process prime minister, Phillipe Couillard (Liberal), has expressed the possibility of doing so if some conditions are met.28 In 1984, Conservative Prime Minister Brian Mulroney promised to integrate Quebec into the constitutional agreement, opening a round of negotiations in which Quebec expressed its demands, which were formulated by Liberal Prime Minister Robert Bourassa: constitutional veto power, recognition that Quebec is a “distinct society,” the power to name three (out of nine) judges for the Constitutional Court from a list drafted in Quebec Province, limiting federal spending power and the power to “opt out” of federal programs and, finally, increasing the control of immigration on the part of provincial authorities. Quebec’s demands were discussed at Meech Lake in 1987 by the ten provincial prime ministers who, in principle, reached an agreement to accept them after a long negotiation: the second section of the 1982 Act would include the recognition of Quebec as a distinct society and would also act as an interpretative clause over the rest of the constitutional text. Among other aspects, future constitutional reforms would need unanimity from the provinces, and Quebec would have the power to veto agreements that would affect its powers.29 The result of the reform efforts is well-known. Attempts for later ratification in the provincial Parliaments and the interventions of former Prime Minister Trudeau himself unleashed a counter-reform movement that, it is worth noting, for Quebec sovereignism was now a proposal of “minimums.” The agreement would finally be buried in 1990 do to a lack of support, especially in Manitoba and Newfoundland and Labrador (after 1987, they changed positions, after their respective provincial elections). The subsequent disappointment is also well-known; a last attempt for reform was made in 1992, with the agreement of Charlottetown. This case, although a much less attractive offer for Quebec, would be submitted to referendum and rejected by a majority of provinces and the public. The failures of Meech Lake and Charlottetown would lead to the victory of the Parti Québécois in 1994 and the referendum on secession in 1995. However, the search for asymmetry did lead somewhere for Quebec and the rest of the provinces. Twenty-five years after the failure of Meech Lake, the current federation presents a structure that has achieved, in

28. See http://www.lapresse.ca/currentites/politique/201409/06/01-4797693-couillard- dit-a-harper-vouloir-signer-la-constitution.php [accessed, May 2016]. 29. See 1995. Quebec’s Political and Constitutional Status, Secrétariat aux affaires intergou- vernementales canadiennes of the ministère du Conseil exécutif, available at : https://www. saic.gouv.qc.ca/documents/institutions-constitution/statut-politique-qc-en.pdf. Clash of Legitimacies inC atalonia and Spain: the Imperial Logic of Modern Constitutionalism 289 versus Multinational Federalism some ways, a notable flexibility when it comes to asymmetries. In the words of Jeremy Webber,30 there must have been a “late victory” of Meech Lake on Trudeauist’s centralist and individualist interpretation of a uniform “one Canada.” In other words, there has been a de facto “asymmetri- zation” of Quebec, within the Canadian federal structure, even though this situation has not been formally constitutionalized (de jure) given the difficulty in coming to agreements at this level.31 It is true that a minority of asymmetries have, effectively, become constitutional in the last few decades. This is, for example, the case with the supremacy of provincial powers in contributory pensions established in 1964, which allowed the development of a Quebec pension plan; or in the 1982 Constitution, section 59, that declares Quebec exempt from the provisions for minority languages in education in section 23(1) of the Charter, or section 40 that gives automatic compensations to provinces that amend cultural or educational materials.32 But the majority of asymmetries have been developed through non-constitutional pacts (and Quebec lost its historic constitutional veto in 1982). There are numerous policies developed in the “post-Meech Lake” scenario where Quebec is distinct from the rest of the provinces: for example, the agreements for the control of immigration in 1991 that let Quebec select more than 60% of its immigrants; the ability to impose taxes on assets or the ability to opt out (although often without financial compensation) of various social programs.33 Webber argues that the constitutional interpretation presented in the Meech Lake reform, which would have been constitutionalized through the expression of the “distinct society” in spite of its failure, would also have influenced both the work of judges and inter-governmentalism to share legislative powers (as in the case of immigration, but also agreements to control the job market). Interpretations along the lines of Meech Lake are visible in interpretations of the Charter, often coordinating diversity and collective rights with the defence of individual rights.34

30. Webber, “La victoire.” 31. This position is controversial. For more “pessimistic” views on the “late victory” of Meech see Turp, La nation bâillonnée, 217; Seymour, Le pari de la démesure; Tully, “Liberté et dévoilement,” 13-36. 32. Milne “Exposed to the Glare,” 107-131. 33. Iacovino, “Partial Asymmetry,” 83. 34. Webber, “La victoire,” 189-193. 290 The Catalan Process

After the 1995 referendum, there are numerous examples of an evolution toward a de facto asymmetrical model of politics in Quebec, alongside a growing provincial interest in developing their own policies.35 In 1999, Quebec declined to join the synchronization of social policies foreseen by the Social Union Framework Agreement (SUFA).36 As Raffaele Iacovino points out,37 official documents have even explicitly referenced Quebec asymmetry and “asymmetrical federalism.” For example, the appendix to the agreement of prime ministers about the health system is called: “Asym- metrical Federalism that respects Quebec’s Jurisdiction,” even though the document in question did not contain strong asymmetry, but rather the province’s ability to establish its own system of waiting lists, direct communication with citizens about the functioning of the agreement, and the ability to spend the federal budget at their discretion (which is absolutely symmetrical on a federal level based on per capita wealth).38 b) Recognition of Plurinationality We have seen that in an indirect fashion there has been a certain evolu- tionary process toward federal asymmetry in relation to Quebec regarding inter-governmental agreements and constitutional interpretation. But the Meech Lake Accord, in principle, also wanted to recognize the national specificity of Quebec symbolically and constitutionally. There are also some other advances in the sphere of symbolic recognition, although they are outside of the Constitution. In 1995, during the referendum campaign, the Parliament of Ottawa as well as various provinces (New Brunswick, Nova Scotia, and Newfoundland) approved a resolution that recognized Quebec as a distinct society, even though it is conditional on the executive power and without any constitutional standing (or legal effects). Later on, within the framework of the discussion about Canadian unity, the prime ministers of the provinces (excluding Quebec) signed the Calgary Declara- tion, which affirmed the unique character of Quebec society, although the same document recalled the equality of all the provinces, in other words, it did not recognize the “distinct character of Quebec.”39

35. For example in the case of immigration, see: Paquet, “Federalization of Immigration,” 519-548. 36. See Gagnon, The Canadian Social Union. 37. Iacovino, “Partial Asymmetry,” 86. 38. Iacovino, “Partial Asymmetry,” 87. 39. Webber, “La victoire,” 188. Clash of Legitimacies inC atalonia and Spain: the Imperial Logic of Modern Constitutionalism 291 versus Multinational Federalism

In an even more explicit fashion, in 2006, the Bloc Québécois (BQ ) proposed a motion in the House of Commons to recognize that “the people of Quebec form a nation.” The prime minister at the time, Conserva- tive Stephen Harper, adapted the BQ’s motion, adding “within a united Canada.” This was approved by the House with 265 votes in favour and only 16 against, with the support of BQ. Iacovino reminds us that the term nation goes beyond “distinct society” and that, while the Conservatives’ gesture was merely symbolic, within the framework of what is called “open federalism” promoted by Harper, it meant going beyond the logic of Trudeau, who was always opposed to recognizing collective identities, especially subnational identities, within the federation.40 c) Right to Secession: Principles and Clarity Finally, beyond the asymmetries and the recognition of plurinationality, another relevant aspect in the Canadian case is the regulation of secession. The experience of the referendum of 1995 (and 1980), alongside two failed processes of constitutional reform, finally led the Canadian federation to a major debate about the right to secession that now constitutes a bench- mark for this type of conflict in other liberal democracies. In the well-known Reference Case with Respect of Quebec’s Right to Secede tabled by the Canadian Supreme Court in August, 1998, the judges responsible for interpreting the constitution laid the groundwork for an eventual new attempt at secession. In an innovative fashion, the document became an accepted and respected reference for the two sides. In response to the Canadian government’s questions to the Supreme Court on Quebec’s right to secession in internal and international law, the response was based on the principles of (1) federalism, (2) democracy, (3) rule of law and constitutionalism and (4) protection of minorities. The Court stated first that the international right to self-determination is not applicable to Quebec and that unilateral secession is only legitimate, according to international law, in cases of foreign occupation and colonialism. Thus, democratic states deserve protection of their territorial integrity. How- ever, in the same Opinion, the Court affirmed that if the Quebec electorate were to vote and express a clear majority on a clear question about secession it would lead, not to Quebec’s right to unilateral secession, but to a requirement for both sides to negotiate. In other words, the Canadian Supreme Court granted equal legitimacy to the Canadian federation and

40. Iacovino, “Partial Asymmetry,”91. 292 The Catalan Process to an eventual secessionist majority in Quebec within the framework of the four aforementioned principles that would have equivalent value.41 It is worth noting that the Canadian government’s later reaction to the Court’s decision failed to respect the spirit of the decision in some ways. Jurist Patrick Taillon has commented that the Clarity Bill, promoted in 2000 by the Liberal government, although presented as the transformation of the opinion of the court in law, betrayed to a certain extent the obligation to negotiate in “good faith” and confused clarity with arbitrariness.42 In any case, the 1998 opinion was generally well received by all sides, and the subsequent legal regulation of secession constitutes a significant constitutional development.

13.3. Spanish Federal Shortcomings, the Reason for the Disagreement

We have briefly discussed the Canadian case because the reasons it is difficult to implement Catalan demands reside, to our way of thinking, in the lack of federalization in the Spanish territorial model. The structure of excessively centralized power results in a shortcoming that is not only federal and by negotiated arrangement, but also democratic. These two conditions complicate the exercise of internal self-determination of the national plurality. A brief review of federal shortcomings suffices to realize the difficulty of promoting demands of recognition and self- determination within a model lacking in some of the characteristics that are fundamental to federations. While it is true that the right to external self-determination is only recognized in a few cases in the world, the rejection of the statutory proposal of 2010 (which triggered the pro-sovereignty wave in Catalonia) would not have come about, we assume, with the presence of a framework where plurinationality is recognized and where there are institutions of a federal nature. The Constitution of 1978 meant a return to democracy for Spain after a long dictatorial period, in a country with a very short democratic history. In terms of the territorial model, Spain’s only (failed) experiences were of a very restricted duration and paralleled the country’s attempts at democratization. These were: the First Republic (1873), the Mancomunitat of Catalo-

41. See Taillon, “De la clarté à l’arbitraire,” 13-59. 42. Ibidem. Clash of Legitimacies inC atalonia and Spain: the Imperial Logic of Modern Constitutionalism 293 versus Multinational Federalism nia (1914-1923) during the Restoration, and the Second Republic’s “Integral State” (1931-1936). The autonomous model, characteristic of the Spanish case, was a product of the Transition, in a constituent phase in which what was most important was that the state would move toward a democratic model comparable to the one prevailing in Western liberal democracies. In this sense, one can say that the Constitution achieved its objective, leaving behind some dictatorial structures while maintaining others, without this representing a complete break. In this way, Spain entered the European Un- ion and experienced the longest democratic period of its history in the following three decades. However the territorial model was designed without a clear goal of attending to the presence of plurinationality, and leaving the model open to evolution, with the existing provincial division as a starting point and with the two Jacobin-inspired levels of government in place: state and municipal.43 The Catalan national minority participated in an active manner in the constitutional design of the model, while the Basques were not involved as constitutional drafters. The evolution of the decentralized model, without a foundational underlying agreement, was slow throughout the 1980’s and 1990’s. While the “historical communities” (Galicia, the Basque Country, Catalonia, and later Andalucía) developed their autonomy on the fast track, the other thirteen communities plus Ceuta and Melilla (the autonomous cities) did so on the slow track. The evolution of the model was characterized by a highly judicialized decentralization in the 1980’s, while the autonomous governments were being developed, and was marked by two pacts (1981, 1992) between the majoritarian national parties (UCD [Union of the Democratic Centre], PP, PSOE); decentralization would later follow the rhythm of the negotiations of the central minority governments with pacts and agreements with the Basque and Catalan nationalist parties until the year 2000. In spite of the fact that many people classify the Spanish model as federal or quasi-federal,44 the “State of Autonomies” is an unusual case that presents federal characteristics without becoming a true federation. Spain is effectively highly decentralized in executive and legislative terms; although the majority of powers are concurrent or shared, all of the country’s territory is divided into Autonomous Communities,45 there are two

43. Requejo, Fédéralisme multinational, chaps. 5-6. 44. Elazar, Exploring Federalism; Watts, Comparing; Moreno, La federalización de España. 45. Unlike the United Kingdom, where there are both autonomous territories and territories that depend on the central government directly. 294 The Catalan Process level of government in the federal sense (state and regional), there is a territorial chamber (Senate), there is a Constitutional Court (CC) that is in charge of arbitrating disagreements between communities, and there are even conferences of autonomous presidents at times, as well as conferences regarding matters related to the European Union.

13.3.1. Shortcomings of Federalization

However, if we take the definition defended in previous sections as a reference, and we analyze the Spanish system, we will see that there is a lack of some elements that are characteristic of any federation, as well as of federal culture (federalism) that should permeate the system.46 We will now offer a non-exhaustive list of elements that do not fulfil federal characteristics:47

• Central institutions. The autonomous communities do not appear in the constitutional text since their formation was subsequent to it. None of the autonomous communities except Catalonia and the Basque Country existed as self-governing territories before their formation. For this reason, the Senate, the chamber with territorial representation, is principally based on the representation of representatives elected by provinces. Fur- thermore this chamber has less power than the Congress of Deputies; it cannot block legislation. Along the same lines, the election of the CC takes place from the central bodies without participation of the autonomous communities, which means that in recent years PP and PSOE have agreed upon the designation of judges (often based on their ideology, progressive or conservative, but almost always with centralist tendencies), sidelining the voiceless minorities. • Division of power. The sharing of authority, without a list of powers for the autonomous communities, is always confusing, since the central authorities intervene in almost all areas through basic laws and from bases that pervade autonomous powers in a systematic manner. Although there are two levels of legislative and executive power, judicial power is not decentralized, so intervention by the autonomous communities is not pos-

46. For a larger exploration on these issues, refer to Burgess, and Gagnon, Federal Democra- cies. 47. See Requejo, Fédéralisme multinational, 93-97. Clash of Legitimacies inC atalonia and Spain: the Imperial Logic of Modern Constitutionalism 295 versus Multinational Federalism sible. Furthermore, any power not assumed by the autonomies on the basis of the regulatory principle belongs to Madrid. • Taxation. Taxes in the autonomous model are mostly a jurisdiction of the state, which then finances the autonomous communities based on their population and spending needs according to their powers. The model allows for the asymmetry of the Basque Country and Navarre, which have autonomous Tax Offices and, once taxes are collected, they send money to the state. • Reform. Constitutional reform does not include any veto power or intervention on the part of the autonomous communities. In its most ambitious form, it foresees a referendum in which all Spanish citizens would vote. • Foreign policy. There is possibility of considering autonomous communities as international actors; they only have the means for international economic promotion. • Federal culture. Given the previous characteristics and the fact that the autonomous communities are not part of the “foundational pact” nor are they considered states (there is only one state), federal culture is generally lacking from the institutional system. Neither labor, sport, nor cultural associationism (with the exception of Catalonia, the Basque Country or Galicia) takes the form of the autonomous communities, embodying instead the form of the whole of the monolithic state.

13.3.2. Shortcomings with Respect to the Recognition of Plurinationality

The Spanish Constitution of 1978 completed the political transition in Spain (1975-1978); it was the keystone of moving from a dictatorship to a liberal democratic state, making the army subordinate to the democratic authority (in spite of the 1981 coup and other attempts), setting up a welfare state that combined social justice and economic growth, and transitioning from a denominational to a non-denominational state (in spite of the existence of a Concordat with the Vatican).48 However, there was another objective: the accommodation and recognition of national plurality by the state,49 which, given the existing tensions, has still to

48. Colominas, “La tentative,” 131-152. 49. It is worth recalling that Catalonia recovered the Generalitat (self-government) before the approval of the 1978 Constitution with President Tarradellas’s return from exile. 296 The Catalan Process be achieved. The shortcomings of the autonomous model in relation to plurinationality can be summarized as follows:

• Nation, nationalities and regions. The drafting of the Constitution of 1978 recognizes, in an abstract manner, the distinction between “nationalities and regions.” However, this rhetorical distinction is subject to various considerations. In the first place, the definition of “nationality,” a term coined during the constitutional negotiations, does not appear in any part of the text. In the second place, it fails to specify which entities are nationalities and which are regions, since the autonomous communities do not appear in the text. In the third place, the development of the term “nationality” came about during the Statutes approved since 1978. Up to seven autonomies have now used the term nationality after the last wave of Statutes50 (the Basque Country, Catalonia, Galicia, Andalucía, Aragón, the Valencian Community and the Balearic Islands); this use has diluted the meaning of nationality without establishing a clear definition for it. • Symmetry and asymmetry. The lack of definition of nationalities and regions has also been transferred to possible asymmetries, unspecified in the Constitution, that have not been explored beyond the model of financing the Basque Country and Navarre. The development of the Con- stitution in the last thirty years has been a constant process of creating symmetry51 that has invalidated the distinction between the fast track and the slow track of access to autonomy or possible asymmetric interpretations of the constitutional text. In spite of the most recent statutory reforms (that effectively give more power to Andalucía and Catalonia; and to Aragón and Castilla y León, to a lesser degree), the tendency has always been to make the range of powers for the autonomies more and more symmetrical.52 In other words, the so-called “one size fits all” approach of the Spanish territorial model has been implemented incrementally. • Preeminence of the nation and the state. The CC’s interpretation has made the existing hierarchy between the nation and the nationalities in Spain very explicit. The “nationalities and regions” make up a nation that is a single demos and a single constituent power. Sovereignty resides in the Spanish people and the autonomies remain subordinate to them. We have already commented that this is one of the most important federal

50. See Orte, and Wilson, “Multi-level Coalitions,” 415-436. 51. See Requejo, and Nagel, Federalism beyond Federations. 52. Viver, “La reconnaissance,” 214-220. Clash of Legitimacies inC atalonia and Spain: the Imperial Logic of Modern Constitutionalism 297 versus Multinational Federalism shortcomings. The one-tier logic when it comes to the demos has important implications since there is no “pact between founding peoples” like in Canada or “between nations” like in Great Britain. The legal institutionalization of the nation establishes a supremacy of the institutions of the state over the autonomy of the minority nations and the rest of the autonomous communities.53 • Right to self-determination. In addition to the preeminence of the state, we can add the deauthorization of the right to self-determination and secession on the part of the autonomous communities. The CC has explicitly denied that the autonomous communities, whether or not they are nationalities, wield any sovereignty since they are part of the state and exist by virtue of the right to autonomy. The autonomous communities cannot organize referendums or consultations on “political decisions of special importance” that affect what is already established in the Consti- tution. Thus, an autonomous community is also barred from asking its citizens if they want to initiate constitutional reform in one way or another (even with respect to a question of a consultative nature that would be subsequently subjected to the formal reform procedure of article 168 of the Spanish Constitution).54

13.4. Lessons to be Learned from the Canadian Experience

Federations are by definition unstable and in constant evolution. The Ca- nadian constitutional history itself shows the equilibriums between majorities, minorities and new territories, from the four founding provinces of the confederation in 1867 to the ten current ones (plus three territories) with all their complexity in intergovernmental relationships and separation of powers. We also know that it would be a real challenge to transfer institutional experiences to distinct contexts with substantially different cultural and historical baggage, such as in Spain, a new democracy in Southern Europe. However, regarding the accommodation of Catalonia and the current vindications of self-determination and secession, we be-

53. Viver, ibidem, 216-224; Muñoz Machado, Cataluña y las demás Españas, 20. 54. Viver, ibidem, 222. The CC’s 108/2008 ruling on the consultation presented in a bill by Lehendakari Juan José Ibarretxe and approved by the Basque Parliament specified the CC’s refusal to accept the right of the Basque Government to consult its citizens. 298 The Catalan Process lieve that there are some elements that, without being an institutional panacea, could inspire the behaviour of political actors who are involved in the constitutional process. From a historical perspective, the combination of federal measurements to guarantee a certain level of internal self- determination, alongside the regulation of external self-determination (the right to secession) is based on four aspects. In the first place, Canadian federalism shows historical continuity, in which the constitutional tradition is interpreted in multiple manners. While the successive amendments and reforms have only been partially ratified, especially the ones from the 1980’s and 1990’s, Canadian constitutional tradition allows the continuity of a federation made up of diverse identities and viewpoints.55 The constitutional interpretation has shown important flexibility, permitting an overall historic balance between tendencies towards centralization and decentralization. One example of the coexistence of different constitutional interpretations is the recognition and combination of individual and community rights (i.e. linguistic policies with Bill 101 in Quebec, both English and French being official languages in New Brunswick, etc...). In the second place, this tradition has allowed the correction of a nationalism that is majoritarian, anglophone and mononational which,56 while it has marked the agenda and policies in Ottawa on numerous occasions, has finally permitted nation-building in the case of Quebec and, more recently, the gradual and partial recovery of self-government for indigenous nations. Moreover, Canadian identity has been transformed over time to include multiculturalism and bilingualism. In the third place, faced with the impossibility of reforming the constitution after the failures of Meech Lake and Charlottetown, we have already noted that it has allowed a continual accommodation of minorities through bilateral or multilateral agreements. Intergovernmentalism saves a federation that wants to develop pacts on a more pragmatic level through concrete policies. The proof of this capacity is that, following the Meech Lake Accord, Quebec was able to upgrade its immigration capacity in accordance with the proposal. The numerous arrangements for opting- out and asymmetries, not only for Quebec, allow the accommodation of

55. In spite of the criticisms and impositions denounced by the province of Quebec and the First Nations. See Gagnon and Tully, Multinational Democracies. 56. For a debate about the question see Gagnon, Lecours, and Nootens, Contemporary Major- ity Nationalism. Clash of Legitimacies inC atalonia and Spain: the Imperial Logic of Modern Constitutionalism 299 versus Multinational Federalism territories that do not feel comfortable with certain federal programs, whether for reasons of identity or their own economic or social needs. In the fourth place, the recognition of external self-determination within the constitutional framework and the principles enumerated by the Supreme Court (democracy, federalism, the rule of law and constitutionalism, and protection of minorities) offer a pragmatic and honourable outlet for the democratic expression of the citizens of Quebec regarding their concerns with respect to the constitutional status of the province. If secession has never obtained a solid majority in a referendum, it has done so in Parliament. The Quebec electorate’s right to decide, even in a secessionist scenario, has also been recognized by the Supreme Court. This is a success for the accommodation of diverse nations. Finally, a fifth element regarding the federal dynamics of destabilization is worth noting by way of a warning. It is known that rejecting asymmetry in various policy fields, as proposed by the government of Quebec at the time of the failed Meech Lake Accord, led to a profound political discomfort that contributed to alienating the Quebec francophone majority from the Canadian federation. The referendum of 1995 was the result of a major disagreement when it came to the formal recognition of the federal asymmetry.

13.5. Conclusion: Pacts and Legitimacies

The Catalan process discussed in this chapter and the response given until now by political actors, alongside the previously mentioned shortcomings of federation and plurinationality, make the Canadian situation very relevant. The advanced interpretative principles proposed by the Canadian Supreme Court would lead to federalist institutional responses for the Spanish state that are required by this type of conflict between national majorities and minorities. In the short term, respect for the democratic principle and the protection of minorities should guide the right to decide, but taking the recommendation of the Court seriously with respect to good faith negotiations between the parties involved in the process. The holding of a referendum on the constitutional future of Catalonia, within the constitutional framework, would also imply a recognition of the existence of Catalonia as a fully recognized political subject within the Spanish state, as in the Quebec case. In the long term, as an alternative path to the secession of minorities, even knowing the difficulties of constitutional 300 The Catalan Process reform, the ability to evolve toward a model of asymmetrical federalism seems like the only reasonable path to accommodate the demands of the multiple cultural and national specificities in Spain. Ideally, following the Canadian experience, this scenario would work at the constitutional level, allowing an eventual negotiation on secession if backed by a democratic majority in a minority nation (external self-determination). However, this scenario of plurinational negotiations would be difficult to achieve, in the Spanish case, without constitutional reform, due to of various federal shortcomings that we have already discussed. In the context of an eventual constitutional reform, these pacts should not be imposed on the minorities. A multinational logic requires that, alongside Spanish citizens, the founding nations should also be key pro- tagonists to the pact. The only way a long-term reconciliation can be reestablished is by laying the foundation for a new pact that gives full consideration to existing political communities within the state, including explicit regulation on the right to self-determination. If Canada can be a reference point for some crucial flexibility in the accommodation of rights and liberties, as well as for constitutional interpretation, the Quebec case also shows the extent to which constitutional rejection can alienate the citizens of a minority nation if it does not have empowerment and recognition within the federal framework.

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Albert Branchadell is a Professor of Catalan Language at, as well as currently the Dean of, the School of Translation and Interpreting at the Autonomous University of Barcelona. He has done research in theoretical linguistics, Catalan sociolinguistics, translation studies, and political philosophy. Topics on which he has recently published are language education for adult migrants within Catalonia’s nation-building policies and the language regime of a possible newly independent Catalan state. [email protected]

Laura Cappuccio is a Senior Researcher (Ricercatore a tempo indeter- minato) of Constitutional Law at the University of Naples “Federico II” (Italy). She has published several articles on constitutional Law, European law, fundamental rights in Quaderni Costituzionali, Federalismi.it, Diritto pubblico comparato ed europeo and others. She is coeditor of Commentario alla prima parte della Convenzione americana dei diritto dell’uomo (Editoriale scientifica, forthcoming). [email protected]

Alain-G. Gagnon is a Professor of Political Science at the Université du Québec à Montréal (Québec), where he holds the Canada Research Chair in Quebec and Canadian Studies. He is President-elect of the Social Sci- ences Academy of the Royal Society of Canada, and director of the Re- search Group on Plurinational Societies since 1994. Among his numerous publications in Catalan, his last book is Temps d’incertituds: assajos sobre el federalisme i la diversitat nacional (2014). [email protected]

Peter A. Kraus is a Full Professor of Political Science and the Director of the Institute for Canadian Studies at the University of Augsburg (Ger- many). He has been the chair of ethnic relations at the University of Hel- sinki, an associate professor of political science at Humboldt University in Berlin, a John F. Kennedy Memorial Fellow at the Center for European 304 The Catalan Process

Studies at Harvard University, and a visiting professor at the New School for Social Research and at the Pompeu Fabra University in Barcelona. [email protected]

Jaume López is an Adjunct Professor of Political Science at Pompeu Fabra University (Barcelona) and the Institut Barcelona d’Estudis Internacionals (IBEI). His main areas of research are collective action, democratic inno- vation and the right to decide. He is the author of A quality democracy for a new state (2015) and Who is entitled to vote? and other controversial issues surrounding secession referendums (2017). [email protected]

Hèctor López Bofill is an Associate Professor of Constitutional Law at Pompeu Fabra University (Barcelona). He is the author of eight books and more than twenty articles in the field of territorial allocation of power, fundamental rights, constitutional courts, political parties and constitutional history. His current research concerns the European integration, the supranational protection of fundamental rights, the comparative constitutional law and the constitutional framework of the global economy. [email protected]

Lluís Pérez Lozano is an Adjunct Professor of Political Science and a researcher at Pompeu Fabra University (Barcelona). His primary research interests are theories of democracy, particularly republicanism. He has published in journals such as the Journal on Conflictology, and has contributed with a chapter (co-authored with Marc Sanjaume) to the book Cataluña en la encrucijada. Las elecciones catalanas en 2012. [email protected]

Ferran Requejo is a Full Professor of Political Science at the Pompeu Fab- ra University (Barcelona), where he is also the Director of the Research Group on Political Theory. He was a member of the National Transition Advisory Council set up by the Government of Catalonia. In 1997 he was awarded the Rudolf Wildenmann Prize (ECPR) and in 2006 the Spanish Political Science Association Prize to the best book (Multinational Feder- alism and Value Pluralism,Routledge 2005). [email protected] Notes on authors 305

Marc Sanjaume-Calvet is a Senior Researcher at the Institut d’Estudis de l’Autogovern (IEA) and Adjunct professor at the Pompeu Fabra University and the Autonomous University of Barcelona (UAB). He has been Postdoc- toral Researcher at Centre de recherche interdisciplinaire sur la diversité et la démocratie (CRIDAQ ) at the Université du Québec à Montréal (UQAM) [email protected]

Ivan Serrano is a Senior Researcher at the Open University of Catalonia and Adjunct Professor of Political Science at the Pompeu Fabra University (Barcelona). He has published in journals such as Ethnicities, Regional and Federal Studies or Ethnopolitics. He is also the author of two books, Ciutada- nia i indentitat nacional en els processos de devolution i descentralització a Gran Bretanya i a França (2008) and De la nació a l’estat (2013, XVIth Ramon Trias Fargas Political Essay Price). [email protected]

Michel Seymour is a Full Professor of Philosophy at the Université de Montréal. Among his books, he published De la tolérance à la reconnaissance. (Boréal 2008) which has won the 2009 Book prize of the Canadian Philo- sophical Association and the 2009 Jean-Charles Falardeau prize in social sciences from the Canadian federation of humanities and social sciences. [email protected]

Neus Torbisco Casals is an Associate Professor of Law at Pompeu Fabra University (Barcelona) and currently a Senior Research Fellow at the Al- bert Hirschman Centre on Democracy of the Graduate Institute of In- ternational and Development Studies (Geneva). She is the author of Group Rights as Human Rights: A Liberal Approach to Multiculturalism(Springer, 2006) and ‘Beyond Altruism? Globalising Democracy in the Age of Dis- trust’ (The Monist, 2015, 98, 4). [email protected]

Joan Vergés Gifra is a Professor of Political Philosophy at the University of Girona and the Director of the Ferrater Mora Chair of Contemporary Thought. Besides articles in journals such as The European Legacy, Interna- tional Philosophical Quarterly, Archiv für Sozial und Rechtsphilosophie, Ethnic and Racial Studies or Journal of Social Philosophy, he is the author of the book La nació necessària (2014, XVIIth Ramon Trias Political Essay Price). [email protected]

Index

absurd 229, 231-232, 239, 242, 243 ANC (Catalan National Assembly) 16 autonomy 12, 13, 27, 31, 44-45, 48-49, 81, 88, 92, 99, 102-103, 106, 109-112, 116, 129-130, 134, 144, 146-147, 150, 185, 197, 206-209, 212, 214, 232, 251- 256, 258-263, 265, 269-270, 276, 287, 293, 296-297 autonomism 101-102 autonomous community 12, 102, 107, 135, 242, 277, 280, 297 autonomy model 102, 106, 111, 254 Statute of Catalonia 12-16, 19, 21, 71-72, 48, 103, 106-107, 110, 111, 142- 148, 176-177, 186, 189, 197-199, 208, 210-211, 214, 235, 256, 260, 269, 276, 278, 281, 296; Sardinia 260-262, 267; Sicily 254, 259 Baltic Republics 20, 163 Basaguren, A. López 280-281 Bergson, Henri 245-247 Bourdieu, Pierre 148 Buchanan, Allen 182, 185, 243, 245 Canada 22, 24, 27, 29, 34, 37, 42, 45, 50, 67, 83-85, 89, 104, 159, 209, 275, 284, 286-287, 289, 291, 297, 300 federalism 275, 285-286, 298 Supreme Court 25, 37, 44, 47-48, 74, 84, 89, 126, 277-278, 285, 291, 299; Reference re Secession of Quebec 25, 74, 126 Catalan process 11-12, 20, 25-27, 112, 168, 196, 227, 239, 283, 299; see also procés CATN (Advisory Council on the National Transition) 278-280 Charlottetown agreement 288- 298 CiU (Convergence and Union) 12-14, 16-17, 145-146, 148, 150, 152, 179, 183 Ciudadanos 189, 277, 282 Clarity Act 285, 292 Committee of the Regions 105 constitutionalism 22, 69, 252, 291 modern constitutionalism 259, 275, 284 social contract 232-234, 236 Council of Europe 161 308 The Catalan Process cultural rights 44, 125, 180 CUP (Popular Unity Candidacy) 24-25, 150, 152, 179, 283 Czech Republic 162 Czechoslovakia 84, 183 declaration of sovereignty 134, 150, 217, 264, 277, 283 democracy 11, 21-22, 25-26, 54, 89, 93, 95, 102, 104, 107-108, 113, 122, 159, 160-162, 166, 169, 171-172, 213, 215-216, 228, 236, 277, 291, 292, 297, 299 Deudney, Daniel 60-61 domination 20, 23, 25, 53, 55-57, 60, 65, 74, 76, 93, 114, 126, 196, 199, 205, 209, 221-222 equal recognition 26, 115, 175, 180-187, 190-191, 196, 221 ERC (Republican Left of Catalonia) 13-14, 17, 24, 144-145, 147-148, 150, 152, 277, 279, 283 Europe of Regions 140, 146 European Union 50, 80, 89, 99, 100, 104-106, 113, 117, 139, 142, 143, 145, 148-150, 152, 161, 165, 190, 229-230, 232, 253, 265- 267, 294 as a federation 230, 232 Committee of the Regions 105 European Integration 104, 139, 143, 145, 266-267 federal 23, 25, 27, 37, 45, 53-54, 58-68, 70, 72-74, 77, 80-81, 84-85, 94, 102, 104-105, 143-144, 147, 163, 183, 190, 192, 199, 203, 225, 260-261, 270, 276, 284-286, 288-289, 290, 292-296, 298-300 confederal 83, 135, 184, 251, 257 confederation 58, 80, 164, 297 federalism 25, 61, 77-85, 102, 149, 252, 261, 270, 275-276, 291, 294, 299; asymmetric 46, 61, 63, 82, 287, 290, 300 federalist 58-60, 83, 203, 285 federation 20, 60-62, 64, 77, 80-85, 102, 148, 165, 232, 269; multinational 53, 58, 62-68, 72, 74, 83-85, 102, 106, 147, 162-164, 184 Flanders 100, 105, 179, 188 Gellner, Ernest 50 Germany 100, 104 Constitutional Court 268 Gibraltar 123, 125 globalization 21, 100, 200, 229, 231, 251-253 group rights 66, 142 historical rights 198, 200, 207, 211-213, Hobbes, Thomas 78, 230, 232-234 human rights 22, 26, 73, 129, 195-196, 211, 219-220, 231 Index 309

Ibarretxe, Juan José 135, 276, identity 12, 21, 23-24, 31, 35-37, 41, 57, 91, 100, 107-109, 111-116, 124, 132-133, 151, 175, 177, 182-185, 196, 198-202, 206-207, 212, 218-219, 239, 241-242, 247, 259, 263, 268, 298, 299 national 62, 68, 79, 112, 179, 182, 184-185, 201, 268 independence 13, 15-16, 18-20, 44, 49-50, 58, 73-74, 89, 99-100, 102-104, 113, 115-117 125-127, 134-135, 140, 142-143, 145-153, 160-164, 166-167, 169-172, 186, 195, 198, 201, 204, 207, 215-218, 228-229, 234-235, 238, 241, 244, 262, 279, 283 independent 11-12, 17-18, 26, 92, 99, 106, 112, 116, 121, 135, 142, 148, 150, 151-152, 162-165, 167-170, 175-179, 181-184, 187-191, 197, 207-208, 212, 218, 228-229, 238, 265, 277, 283 independentism 24, 101, 112, 143, 145, 156, 200 IC-V (Initiative for Catalonia Greens) 13, 144-145, 147-150, 152, 279, 281, 283, 144 International Court of Justice 126-127 Italy 22, 43, 80, 259, 260, 262-264, 269, 285 Constitutional Court 27, 254, 260, 262-263, 265 Junqueras, Oriol 138, 175, 188 Junts pel Sí (Together for Yes) 152, 188 justification ex eventu 240 Kosovo 89, 126-127, 164, 170, 172, 183 Kymlicka, Will 36, 40, 48, 202, 205-206, 220 language 14-15, 21, 26, 30, 36-37, 40, 42-43, 62, 92, 93-94, 105-106, 112, 116, 118, 131-132, 140, 143, 150, 154, 175-182, 185-192, 199-208, 211-212, 221, 227, 143, 250, 289, 298 Catalan 70, 103, 105 regime 176-178 rights 21, 187-190 official 105, 143, 176, 178-179, 181-182, 186-187, 189-191, 206, 208, 298 public 14, 15 Spanish 175, 189, 201 linguistic justice 177, 179, 181 Machiavelli, Niccolò 60 Margalit, Avishai 248 Marí, Isidor 177 Mas, Artur 16-19, 116, 146, 161, 176, 188, 217 Meech Lake agreeement 49, 287-290, 298- 299 310 The Catalan Process memory shared vs. common 228, 248-249 minority 29, 34-35, 40, 42-44, 46, 57, 61-62, 64-70, 83-84, 87-88, 94, 101, 107, 110-112, 115, 126, 131-133, 140-142, 145, 160, 180, 182, 189-190, 196, 198-200, 202, 205-213, 219-222, 242, 276, 284, 287, 189, 293, 297, 300 permanent 57, 61, 65, 67-68, 142 rights of 35, 38, 43-44, 46, 64, 68, 87, 129, 134, 157, 199, 224, 131-133, 137, 209 structural 20 monist 23-24, 93, 108, 109, 110, 117 Montenegro 84-85, 164, 178 multicultural policies 287 nation 14-15, 20, 23, 34, 69, 87-88, 100, 106-111, 114-116, 124, 128-130, 143- 146, 153, 185, 198-199, 201-204, 206-207, 211-214, 117, 221, 229, 236-237, 249, 255-256, 258, 263, 276, 287, 291, 296-297, 300 nation vs nationality 110, 112, 296 nation-state 23, 29, 31-33, 40, 104-106, 109, 114, 145, 253, 284 nation-building 39, 62-64, 79, 104, 205, 228, 284, 286, 298 nationalism 13, 21, 25, 31-32, 39, 77, 79, 87, 89, 93, 100-101, 116, 131, 140, 142, 198, 200-202, 206, 210, 213, 228 banal 79 Catalan 12, 116, 175, 208, 212, 221 Spanish 111, 209, 211 national transition 149, 279 Negarchy 60-61 Norman, Wayne 62-63, 68-69 Norway 85, 162 Òmnium Cultural 16, 24 Patten, Alan 26, 132, 178-186, 189-191, 206 people 15, 17-19, 25, 27, 29-50, 54, 56-57, 61, 67-68, 72, 89, 104, 107-108, 113, 116, 122, 124-126, 128, 130, 134, 143, 149, 151, 160-161, 164, 166, 168, 172, 180-181, 185, 188-189, 199-200, 203-204, 211, 214-215, 217, 219-222, 229, 233, 235-237, 240-243, 245, 247-248, 252, 254-258, 260-261, 263-264, 266, 268, 276-277, 280-281, 285-286, 293, 296-297 indigenous 26, 29, 33-34, 37-40, 42, 131, 133, 196, 205, 209, 220, 285-286 people as nation vs. people as popolo 236-237 stateless 29-35, 39, 42, 44-45 Pettit, Philip 53, 55-56 Podemos 152, 235, 281-282 Index 311 post-Francoist 20, 22-23, 102, 104 PP (People’s Party) 12-14, 16, 276-277, 282, 293-294 procés (process) 99; see also Catalan process PSC (Party of the Catalan Socialist) 13-14, 144, 152, 279, 283 PSOE (Spanish Socialist Workers’ Party) 12-13, 276, 281-282, 293-294 Puigdemont, Carles 19 Pujol, Jordi 12-13, 103-104 Quebec 18, 20-21, 24-25, 27, 29, 37-38, 41-42, 49-50, 67-69, 74, 89, 100, 126, 135, 140, 159, 171, 179, 188, 229, 275-277, 284-292, 299-300 Rajoy, Mariano 16-17, 281 Rawls, John 90, 205 reasons 17, 26, 33, 39-40, 53-54, 57, 65, 67, 74,79, 85-86, 89, 100, 141-142, 159, 183, 189, 207, 213, 216, 218, 220-221, 231, 238-240, 243, 262, 277, 285, 292, 299 existential 239 moral 79, 141 fragility of 243 recognition 26, 31, 33-35, 44-46, 49-50, 55, 63-65, 72, 78-79, 82-83, 85, 87, 90-95, 111, 115, 122-126, 141-143, 145, 147, 149-151, 153, 160, 163, 166-169, 172, 175-176, 180-191, 196-197, 203, 206-207, 210-211, 216, 220-222, 237- 238, 258, 262, 270, 276, 284-288, 290-292, 295, 299-300 unequal recognition 21, 111 referendum on independence 19, 73, 115, 135, 148, 160-161 regionalism 261, 285 remedial shift 142, 148 republicanism 25, 53-56, 58-61, 74 right to decide 17, 26, 94, 107, 121-123, 126-135, 141, 144-150, 151-153, 196-198, 213-219, 222, 227, 237, 263, 276-277, 279, 282, 287, 299 rights individual vs. collective 39, 43-44, 79, 86-87, 93, 207, 210, 213, 220, 285, 289 Right to Decide Platform (PDD) 134 Rubert de Ventós, Xavier 113 Schmitt, Carl 171, 230, 239 Scotland 17-18, 20, 24, 38, 42, 73, 100-101, 105, 135, 139, 159, 171, 187-188, 229, 278, 281 312 The Catalan Process secession 20-22, 25-27, 44-47, 49-50, 53-62, 64-74, 77, 80-82, 84-89, 99, 113- 114, 123,126-130, 132, 134, 139-142, 150, 152-153, 159-162, 164-171, 175, 177, 179, 182-184, 186-187, 191, 195-196, 201, 210, 213-219, 221-222, 227, 230, 243-245, 247, 262, 275-277, 280, 283, 285, 287-288, 291-292, 297-300 Catalan secessionism 175, 177 moral theories of secession; remedial 26, 49, 58, 65, 86, 129, 140-142, 148-150, 152-153, 182, 247; plebiscitarian 18, 57, 67, 86, 88, 129-130, 151, 182-183, 228; nationalist 28, 32, 39, 43, 50, 68, 74, 86-88, 103- 104, 111, 130, 141, 148, 153, 198-199, 201, 207, 209, 211, 213-214, 237, 242-243, 279, 293 secessionist 20, 22, 24, 26, 50, 53-55, 60, 64-67, 73, 81, 85, 88-89, 102, 112, 115, 139, 159, 161, 163, 175-177, 179, 182, 184, 187-189, 191, 195, 198-199, 212, 225, 259, 292 unilateral right to 69, 72-74 self-determination 16-17, 21, 26, 31, 33-34, 39 internal vs external 35, 43-50, 129, 133, 221, 284-285, 292, 298-300 right of/to 26, 29, 34, 39, 44, 47, 67-68, 84, 108, 122-128, 135, 144, 147, 150-152, 203, 213, 215, 217, 219-221, 227, 281, 291, 297, 300 Slovakia 43, 162-163, 183 sovereignty 11, 17, 19-20, 22-24, 26-27, 31, 35, 44, 58, 60-61, 63, 99, 100-102, 106-110, 112-115, 117, 125, 134, 140, 144-147, 149-150, 159, 161-162, 164-167, 171-172, 188, 195-198, 201-202, 205, 207, 213-215, 217-219, 227-231, 233- 238, 241, 243, 251-258, 260-270, 275-277, 281, 283-284, 296-297 sovereigntism 24, 103, 112, 115, 275, 288 post-sovereign 106, 165 internal vs. external 22, 107, 236, 238, 265 Spanish Constitution 12, 15, 17, 37, 106, 108, 123, 149, 185, 210-211, 219, 229, 257, 276, 279-280, 295, 297 framework 160-161, 167-168, 171-172, 216 Spanish Constitutional Court 21, 23, 27, 48, 167, 171, 189, 216, 251, 254, 266, 270 Ruling 31/2010 15, 230, 235-236 Staatsvolk 107-108 state multinational 25, 29, 31, 33, 222 federal 261 statehood 11, 26, 101, 107-108, 114, 145, 148, 159 unitary state 102, 251-252 Statute see autonomy Statute of Index 313

Taillon, Patrick 292 territorial integrity 44-47, 183, 191 Treaty of Lisbon 268 Trudeau, Pierre Elliott 275, 286-289, 291 Tully, James 48, 284 Van Parijs, Philip 177, 179, 188 Veneto 262-263 Voltas, Eduard 175 Weber, Max 166, 230 Western Sahara 123, 125 Westphalian 60, 112-113, 115, 117, 229-231, 233, 253 Peace of Westphalia 107, 229 Westphalian state system 60, 101, 106, 108-109 Wilson, Woodrow 124 Wirkungsgeschichte 244-245

TITLES IN THE COLLECTION 5 5

1 Nous governs locals: regeneració política Col·lecció Institut d’Estudis de l’Autogovern I 5 i estabilitat pressupostària Alfredo Galán Galán (coord.)

ISBN 978-84-393-9610-9

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