Summary: Catalonia is looking at the best opportunity for secession it has ever had but the Spanish government has deemed it unconstitutional.
On October 1, 2017, Catalans stared down armed national police and tear gas to take their first proper steps towards independence from Spain. Meeting large resistance from the federal government in Madrid, Catalonia held a referendum vote to decide whether or not they would remain part of Spain. Despite 90% of the votes cast being in favor of independence, the Spanish Prime Minister went on national TV later in the day to say that “no official referendum had been held” and that any attempt at a referendum was unconstitutional. Are the people of Catalan actually engaging in an act of state-sponsored resistance? If they are not, is this another piece of the plan of the Spanish government to hold onto a part of their country that constitutes over 20% of their national GDP?
To evaluate the legality of this move and the legal ramifications of it, one must first reflect on how the recent talks of independence began. When Spain transitioned from a monarchy to a democracy in 1978, its constitution established seventeen autonomous communities that self-govern. While still a unified state, Spain has decentralized certain national powers to the autonomous communities, the rights of which are outlined in the Statutes of Autonomy. In 2010, a large portion of the 2006 Statute of Autonomy of Catalonia, the statute that defined Catalonia as a ‘nation’ within Spain and provided the Generalitat of Catalonia with a stronger form of self-governance, was ruled unconstitutional by the Spanish High Court of Justice. The language of the High Court’s amendments greatly restricted the power of self-governance that the Spanish and Catalan government agreed upon; one of the most influential changes being that the High Court believed the Statue’s declaration of Catalonia as a ‘nation’ carried no legal value under the Spanish Constitution’s article that states the unity of the Spanish nation is indissoluble. In response, the Catalan population moved from calling for more autonomy to full independence. Over the next six years, Catalonia would hold four referendums to gauge interest in leaving Spain, each time showing an increase in support for the pro-secession side.
Catalan independence has also created challenges for the European Union. Calls for their intervention in the Spanish government’s attempt to prevent the referendum vote have been made on the basis that their arrest of democratically elected officials, banning of political meetings, and raiding of private printing and mail services is a direct violation of the civil rights and freedoms of assembly, speech, and information outlined in the European Charter of Fundamental Rights. If the European Commission finds Spain guilty of these allegations, then Spain could face sanctions that could cripple their economy should Catalonia also gain its independence. The economy of Catalonia currently comprises 20% of Spain’s GDP but the abolishment of Spanish tax law within the region and full rollout of exclusively Catalan tax law would result in a €16 billion yearly increase for the region since Catalan money would no longer be going to the Spanish government. The European Union currently has no legal literature dictating who becomes responsible for a state’s debt in the case of secession so, considering the Spanish government is not willing to negotiate and the fact that there are no laws dictating the allocation of this debt either, it looks like the remainder of Spain may have to take on the entirety of the debt, something its debt-to-GDP ratio proves the Spanish economy would not survive. EU law requires a unanimous vote among its members to induct Catalonia into the Union itself, so accepting their portion of the debt may be Catalonia’s only way to win favor with Spain and its allies come time for such a vote.
The referendum of October 1st does not constitute actual independence in itself. And an official declaration of independence has to be voted upon by the Catalan government (which said they would do this within 48 hours of receiving a majority “yes” vote on the referendum). In response to the refusal of the Catalan president to back down, Prime Minister Mariano Rajoyhas called for the activation of Article 155 of Spain’s Constitution, an article that allows for the Spanish government to revoke all of Catalonia’s autonomy. Article 155, largely based on a similar Article in the constitution of then West Germany, allows the Spanish government to take control of one of the countries autonomous regions should it “fail to fulfill the obligations imposed upon it by the Constitution or other laws, or acts in a way seriously prejudicing the general interests of Spain.” The language of this article, which has never seen use in the forty years since the fall of Francis Franco, is vague at best and unenforceable at worst. The issue with the Spanish government’s potential use of this Article is that it requires them to outline instructions for how the seized region can return to autonomy. But considering the broad language of the Article and the refusal of the Catalan people to comply even in the face of potential civil war, it appears any plan recommended by the national government would fall on deaf ears and only be seen as further attempts to undermine their autonomy. Spain has no precedent for this type of case, especially on a constitutional scale. If the Catalan president continues to refuse to comply, the Spanish government has not been shy in saying that it will implement martial law in the region should it come to that.
Neither side seems to be budging. Should war break out, the situation could pose an interesting dilemma for the United States. The United States would have to choose between honoring its alliance with the Spanish government by coming to their aide in the suppression of Catalonia and supporting Catalonia in an attempt to further their stance as the global upholder of international democracy. This choice would only be made harder if either the United Nations or the European Union finds Spain guilty of human rights violations. The coming months could shape Spanish, Catalan, EU, and international law as the world potentially prepares to see its first new country since the creation of South Sudan in 2011. Should Catalonia prove successful, other regions in Spain and abroad may begin to follow suit.
Hunter Snowden is a Trinity junior majoring in Philosophy and Political Science from Dallas, Texas.
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