CATALONIA’S LEGITIMATE RIGHT TO DECIDE PATHS TO SELF-DETERMINATION A REPORT BY A COMMISSION OF INTERNATIONAL EXPERTS NICOLAS LEVRAT Professor at the University of Geneva, coordinator of the Report SANDRINA ANTUNES Professor at the Universidade do Minho GUILLAUME TUSSEAU Professor at Sciences Po, Paris PAUL WILLIAMS Professor at American University in Washington, DC CATALONIA’S LEGITIMATE RIGHT TO DECIDE | PATHS TO SELF-DETERMINATION ACRONYMS AND ABBREVIATIONS AER Assembly of European Regions ANC Assemblea Nacional Catalana AVANCEM Espai socialista BL Basic Law C Constitution CDC Convergència Democràtica de Catalunya C’s Ciudadanos CiU Convergència I Unió CoR Committee of the Regions CSQP Catalunya Sí que Pot CUP Candidatura d’Unitat Popular DC Demòcrates de Catalunya ICJ International Court of Justice ECHR European Convention of Human Rights ECtHR European Court of Human Rights ECJ European Court of Justice ERC Esquerra Republicana de Catalunya EU European Union ICV-EUiA Iniciativa per Catalunya Verds-Esquerra Unida I Alternativa IU Izquierda Unida JxS Junts pel Sí MES Moviment d’ Esquerres OC Ómnium Cultural P Podemos PDD Plataforma pel Dret a Decidir PP Partido Popular PSC Partit dels Socialistes de Catalunya PSOE Partido Socialista Obrero Espanol TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union UCD Unión de Centro Democrático UDC Unió Democràtica de Catalunya 1 CATALONIA’S LEGITIMATE RIGHT TO DECIDE | PATHS TO SELF-DETERMINATION ABOUT THE AUTHORS Dr. Nicolas Levrat is a Professor of European and International Law at the University of Geneva. He’s the Director of the International Law and International Organization Department of the Law Faculty since 2016. He has been the founder, in 2012, of the Global studies Institute at the University of Geneva, which nowadays is home to about 1’300 students and host more than 100 researchers. He has previously been the Director of the European Institute of the University of Geneva, from 2007 to 2013. He has also been a European civil servant at the Council of Europe (1991-1994) and a Professor at the Université Libre de Bruxelles from 1998 to 2004. He received his PhD from the University of Geneva in 1992. His research interests focus on European Institutional Law, Democracy, Federalism, Local Regional and multi-level governance, Minority Rights and most recently Global Law. He’s the author or editor of 20 books on these topics. Dr. Levrat has conducted studies for numerous governments, the Council of Europe, the Committee of the Regions, the European Commission or the World Bank. He also promotes interdisciplinary studies within European Universities. He’s member of numerous learned societies and the co-founder and current vice-President of the Global and Transnational Law Society. Dr. Sandrina Antunes is an Assistant Professor at the Department of International Relations and Public Administration at the Universidade do Minho (Portugal) and a scientific fellow at the Research Center for the Study of Politics (CEVIPOL) at the Université Libre de Bruxelles (Belgium). She is currently the director of the bachelor degree in Political Science and the vice-director of the Research Center in Political Science at the Universidade do Minho (CICP). She holds a Bachelor Degree in International Relations (Universidade do Minho) and a Phd in Political Science (Université Libre de Bruxelles). She has worked for the Committee of the Regions (CoR) and for the Assembly of European Regions (AER). She has been a visiting researcher at the London School of Economics and at the University of Edinburgh. She preferentially works on regionalism and nationalism, and she has a particular interest for nationalist political parties. Her main interests of research are related to dynamics of territorial mobilization in Europe ranging from regionalist and nationalist political parties to economic stakeholders. She has a particular interest in evolutionary forms of para-diplomatic activities and lobbying activities in Europe. She is also interested in devolutionary, federalist and regionalist processes within 2 CATALONIA’S LEGITIMATE RIGHT TO DECIDE | PATHS TO SELF-DETERMINATION all categories of political systems. Beyond academia, she is a scientific collaborator at the Galician Institute for Research (IGADI) and at the Centre Maurits Coppieters (CMC), a think tank sponsored by the European EFA group at the European Parliament that promotes research on regionalism and nationalism in Europe (Brussels). Dr. Guillaume Tusseau is Professor of Public Law at Sciences Po Law School, Paris, Member of the Institut universitaire de France and of the Centre Bentham. He holds a bachelor degree of the Institut d’études politiques of Toulouse, a Master in Public Law, and a Master in Legal Theory. He received his doctorate in Public Law from the University Paris X – Nanterre. He also received a doctorate honoris causa from the Universidad Privada Antonio Guillermo Urrelo (Cajamarca, Peru). He has been visiting professor at the London School of Economics. His main fields of specialization are constitutional law, especially comparative constitutional review, and legal theory. He extensively taught in both fields in France and abroad. He authored several books and articles, among which Jeremy Bentham et le droit constitutionnel. Une approche de l’utilitarisme juridique [Jeremy Bentham and constitutional law. An approach to legal utilitarianism] (Paris: L’Harmattan, 2001); Les normes d’habilitation [Power-conferring norms] (Paris: Dalloz, 2006), Contre les «modèles» de justice constitutionnelle. Essai de critique méthodologique [Against “models” of constitutional review. An essay in methodological criticism] (Bologna: Bononia UP, 2009), and with Olivier Duhamel, Droit constitutionnel et institutions politiques [Constitutional law and political institutions], 4th ed. (Paris: Le Seuil, 2016). Dr. Paul R. Williams is the President and Co-Founder of the Public International Law & Policy Group (PILPG) and the Rebecca I. Grazier Professor of Law and International Relations at American University in Washington, D.C. Since 1995 PILPG has provided pro bono legal assistance to states and governments regarding peace negotiations and drafting post- conflict constitutions. In 2005, Dr. Williams was nominated for the Nobel Peace Prize by half a dozen of his pro bono government clients for his work advising them on peace negotiations and questions of state succession. Dr. Williams is a leading expert on the issues of state recognition, self-determination, and state succession. As an attorney-advisor for the U.S. Department of State’s Office of the Legal Adviser, he advised the U.S. government on issues of state succession in the former Soviet Union, Eastern Europe and the Balkans. Since then, Dr. Williams has advised the President of Macedonia, the Kosovo government, South Sudanese officials, and the Foreign 3 CATALONIA’S LEGITIMATE RIGHT TO DECIDE | PATHS TO SELF-DETERMINATION Minister of Montenegro on independence and state succession matters. He has also written more than a dozen publications on these topics and has provided expert commentary to the U.S. House of Representatives about sovereignty and self-determination. Dr. Williams has also served as a Senior Associate with the Carnegie Endowment for International Peace, Counsellor on the Executive Council of the American Society of International Law, and is a member of the Council of Foreign Relations. He received his J.D. from Stanford Law School and his Ph.D. from the University of Cambridge. 4 CATALONIA’S LEGITIMATE RIGHT TO DECIDE | PATHS TO SELF-DETERMINATION TABLE OF CONTENTS ACRONYMS AND ABBREVIATIONS 1 ABOUT THE AUTHORS 2 TABLE OF CONTENTS 5 INTRODUCTION. EXPLORING THE LEGITIMACY PATHS FOR THE RIGHT OF CATALANS TO DECIDE ON THEIR POLITICAL FUTURE IN EUROPE 9 The Working Method 9 The Substance of the Issue 10 I. HISTORICAL, POLITICAL AND SOCIOLOGICAL BACKGROUND FOR THE CURRENT SITUATION IN CATALONIA 14 1.1. Catalan Party System and Territorial Preferences within Catalan Political Parties 14 1.2. Catalan-Spanish Negotiating Process and the Tortuous Path to a Legally Binding Referendum 16 1.2.1. Between 1980-2003: a “fish in a bag” strategy 17 1.2.1.1. From 1980 to 2003: Majority Government of CiU 17 1.2.2. Between 2003-2012: a “hard ball” strategy 18 1.2.2.1. From 2003 to 2006: Tripartite Coalition of PSC-ERC-ICV-EUiA 18 1.2.2.2. Between 2006 and 2010: PSC-ERC-ICV-EuiA 20 1.2.2.3. Between 2010 and 2012: CiU 20 1.2.3. Since 2012: a “chicken” strategy 22 1.2.3.1. Between 2012 and 2015: Minority Government of CiU with the support of ERC 22 1.2.3.2. Since September 2015: Junts pel Sí Coalition 24 1.2.4. Intermediary Conclusion 25 II. FOUNDATIONS FOR CATALONIA’S RIGHT TO DECIDE ITS POLITICAL FUTURE 26 2.1. The Democratic Support for the Right to Decide: When a Referendum on Political Independence is the only way out 26 2.1.1. The Emergence of Secessionist Popular Demands: A bottom-up and top-down Movement 27 2.1.2. The Role of Organized Civil Society in Catalan’s “Right to Decide” 31 2.1.2.1. Òmnium Cultural 31 5 CATALONIA’S LEGITIMATE RIGHT TO DECIDE | PATHS TO SELF-DETERMINATION 2.1.2.2. The ANC - Catalan National Assembly 32 2.1.3. Survey of Catalan Public Opinion: What does Catalonia Want? 33 2.1.4. Catalan Public Opinion and Voting Behavior: Who voted What? 38 2.1.5. Is Nationalism the Cause of Increased Demand for Independence in Catalonia? 39 2.1.6. Intermediary Conclusion 42 2.2. Mapping the Constitutional Philosophy of the “Right to Decide”: The Emergence of a Transconstitutional Jurisprudence 43 2.2.1. Demystifying parochialism 43 2.2.2. The Horizon of Constitutional Contractualism 44 2.2.3. The Ethics of the Right to Decide 45 2.2.3.1. The “Just-cause theories” justifying the exercise of the Right to Decide 46 2.2.3.2. The “Choice theory” justifying the exercise of the Right to Decide 48 2.2.3.3.