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Drafting Independence: The Catalan Declaration of Sovereignty and the Question of the Constituent Power of the People in Context

–Zoran Oklopcic, Department of Law and Legal Studies, Carleton University

On January 23, 2013 the Catalan Parliament adopted the Declaration of Sovereignty and Right to Decide of the Catalan People.[1] The Declaration proclaims ‘the people of Catalonia’ to be ‘a sovereign political and legal subject’ with a ‘right to decide … their collective political future’. The content of this decision is left underdetermined, but it’s obviously used as code for a putative right of the Catalan people to secede from Spain. Like many such documents, the Declaration constructs a familiar narrative of an enduring Catalan political autonomy, often oppressed by the wider Spanish state. In addition, it specifies a set of liberal-democratic principles—transparency, dialogue, social cohesion, Europeanism and participation, among others—that will serve to guide the decision-making process.

The Declaration also contributes to setting the stage for an unpredictable constitutional conflict: as Karlo Basta has recently argued, the political dynamic in Catalonia begins to appear similar to that of the former Yugoslavia in the early 1990s[2]. As in Spain today, the Yugoslav constitutional crisis was in part precipitated by attempts to recentralize the country in the context of a economic crisis, provoking richer parts of the country to seek further autonomy, and ultimately secession. In Spain today, as in Yugoslavia 20 years ago, the army is the constitutional guarantor of territorial integrity of the country[3]. As in Yugoslavia, the reaction of the Spanish army to secessionist mobilization has been extremely hostile, threatening (and in Yugoslavia making good on that promise) to use force to prevent the unilateral secession of Catalonia.

One should, of course, be exceptionally wary of easy analogies: Spain is not Yugoslavia, Rahoy is—needless to say—not Milošević, and Catalonia is not Croatia. But the question that has provoked a spate of interest in contemporary constitutional theory over the last 20 years remains the same in both cases: how to understand the idea of ‘the people’—the bearer of the pouvoir constituant—that has the right to decide a polity’s ‘collective future’? My brief intervention will not seek to answer this question. Rather, by roughly sketching some of the ways in which this question has recently been addressed in contemporary constitutional and democratic theory, I seek to shed some light on the assumptions and implications of these answers. In doing so, I will suggest caution against constitutional theory’s embrace of the Declaration’s rhetoric as somehow attesting to the activation of the constituent power of the Catalan people.

At the risk of over-simplifying, constitutional theory thematizes constituent power of ‘the people’ from two vantage points: normative and non-normative. Normative approaches highlight the need for wide popular participation in the process of constitution-making.[4] Other views are not explicitly normative, but their work mirrors commitments of normative political theory. Stephen Tierney’s work on multinational constitutionalism takes the existence of sub-state societies for granted, but also features normative undertones that allow his work to be understood as, if not building on, then at least very sympathetic to the project of liberal nationalism.[5] Also, his recent work features a strong commitment to deliberative democracy, as a means to enhance the legitimacy of the exercise of people’s constituent power.[6] The recent Declaration of Sovereignty is almost a perfect embodiment of this approach, as it blends the facticity of the enduring sub-state political identity with the normative commitment to liberal nationalism, participation and deliberation. The Declaration’s commitments to consultation and deliberation are thus put into the context of demands for autonomy that won’t go away: from the instances of the medieval Catalan parliamentarism (assemblees de Pau i Treva, Cort Comtat), early modern political autonomy (Diputació del General) to the suppressed and then revived twentieth century territorial autonomy (Mancomunitat de Catalunya, Generalitat de Catalunya).

While this mix of facticity and normativity seems to be a particularly fitting approach to indentifying the bearer and the scope of constituent power in the Catalan context, this is not the only way in which its character can be articulated in theory. Instead of simply accepting the sociological fact of an enduring collective political identity, Hans Lindahl has suggested that an exercise of constituent power is always ‘pulled off’: the ‘people of Catalonia’ is a putative construct, which can only retroactively be seen as ‘the bearer of constituent power’ if the ideals in the Declaration ‘catch on’: if, indeed, Catalonia succeeds in seceding. Others, such as Chris Thornhill, have recently focused on the function the idea of constituent power plays in modern constitutionalism.[7] For Thornhill, we should be wary of “literalistic misconstruction” of constituent power. Instead of seeing it as belonging to an identifiable group of people, constituent power should be seen as part of constitutionalism’s adaptive vocabulary that enables the political system to augment political power internally, simplify its exercise and to stabilize a new polity in “an uncertainly supportive environment”.[8]

Both non-normative accounts point to the reasons why the idea of ‘the people’—its sovereignty and constituent power—is such a resilient part of constitutionalist vocabulary, beyond the simple fact that it remains firmly embedded in the grassroots political imaginary. But both accounts presuppose the territorial container, if not that of a sovereign state, then that of an identifiable polity. The same goes for the normative accounts: the unit within which we should deliberate—and then jointly decide—is not put into question. The only approach that solves this problem is one that sides with liberal nationalism, but that approach is problem-free only insofar as it can rely on the political homogeneity of the seceding unit.

Recursive (liberal) nationalist mobilization and the legitimacy of the seceding territory

Part of the usefulness of the vocabulary of constitutionalism to solve national conflict depends on the clarity of spatial fault-lines between antagonistic political projects. Conjuring ‘the people’ of Scotland as the bearer of constituent power, for example, makes sense because the territory of Scotland is not only “a recognised political and territorial entity”, but also because “its territorial extent is not disputed”.[9] Equally, the legitimacy of the Catalan territory is not questioned, at least not in the literature in the English language. While there is a Spanish-speaking minority within Catalonia, it is, to my knowledge, relatively dispersed and does not mobilize around a project to partition Catalonia in case of its secession.

But in cases where the minorities within minorities did so—such as the Serbs in Croatia in 1991, or the Crees in Quebec in 1995—one is left with the difficult task of explaining why a historical narrative of the endurance of secessionists’ political autonomy would trump the demands of liberal reciprocity, where one nation ought to give to another what it asks for itself: namely, a right to ‘choose its political destiny’ on the lands it inhabits. Similar to the recent Declaration, in 1995 the Quebec National Assembly passed Bill 1, An Act Respecting the Future of Quebec. Similar to the Catalan Parliament today, the National Assembly has invoked the historical recognition of the “distinct nature of [Quebec’s] institutions”, the fact that Quebec was one of “the first parliamentary democracies in the world”, and the fact that the Canadian state has betrayed the “federal bargain”. The James Bay Crees were not impressed with this narrative, nor with the claim that “Québec shall retain its boundaries”[10] after secession. According to the Grand Council of the Crees, “separatists believe that the territorial integrity of Canada can be ruptured … by the unilateral secession of Quebec from Canada. [But no] consideration [is] given to the integrity of Aboriginal territories.”[11] And while recent advances in constitutional theory have argued that ‘deliberation’ and ‘participation’ are an inextricable part of the legitimate exercise of constituent power in deeply divided societies, adding these ‘ingredients’ doesn’t solve the problem: they continue to presuppose that what needs to be argued first—the legitimacy of the territorial ‘container’ of the secessionist project. No wonder then, that the Supreme Court of Canada in the Secession Reference rejected entertaining the inflaming question of who is ‘the people’ for the purposes of self-determination, and had instead mandated a political process where all contentious issues surrounding secession are on the negotiating table.

Who will decide: turning the question of ‘the people’ upside down

Recent developments in democratic theory only further frustrate the possibility of a straightforward invocation of the people’s constituent power in a multinational context. While liberal nationalism does not— at least not explicitly—rely on the idea of maximizing individual political preferences/consent/autonomy, the implication of the satisfaction of the liberal nationalist program is the tacit fulfillment of the promise of early modern social contract theory. For example, independent Catalonia would maximize the degree of loyalty and attachment the respective national communities (Spanish and the Catalan) have towards their respective polities (new, independent Catalonia and the-rest-of-Spain) in comparison to the status quo ante.

Such a view of ‘the people’—carrying with it a hidden promise of the increase of the aggregate individual political autonomy—is challenged by recent work in democratic theory. Most radically, democratic theorists argue that ‘the people’ is, in fact, a group bound not by mutual affections (or even institutions), but rather by joint affectedness by a proposed decision. This view’s most radical implication is that the very claim of affectedness should be democratically decided.[12] This would, for example, mean that the Catalan demand for independence, and Spain’s (underlying) moral counter-claim to be fundamentally affected by this demand, ought to be decided by all those who would, in turn, claim to be affected by this dispute—potentially ‘the people’ of the entire globe. Radically reimagining the concept of ‘the people’ along these lines would formalize, otherwise normative questions, about the legitimacy of Catalan nationalism, or the legitimacy of enduring institutions of territorial autonomy.  In other words, whatever ‘the World’ decided—arguably, through the process of state recognition—would be the legitimate solution.

Constitutional theory, independence of Catalonia and wider implications

If it is highly unlikely that these recent views on the nature of ‘the people’ will capture popular imagination, does this mean that the constitutional theorist should, as Tierney has suggested, only “engage[] with constitutionalism as it exists in practice, and insofar as normative prescriptions can feed into this engagement they should … be able to do so at the interstices of extant constitutional projects and ongoing constitutional processes.”[13] While his view is a welcome antidote to the impulse to stray too far from the commonplace imaginary of popular sovereignty, I believe that the genie is already out of the bottle:  Lindahl and Thornhill have shown both the reasons for resilience of the vocabulary of popular constituent power, but have—in shedding light on the logic of its invocation and its function in modern liberal democratic constitutionalism—also undermined its appeal as a tool used to make categorical political demands. Constituent power indeed appears “attractive only as long as it remains dark”.[14]

From this it doesn’t follow that the nexus of nationalism and republican political imaginary can easily be disentangled. Nationalism will always piggyback on the idea of collective self-government. But this does not mean that constitutional theory should be complicit in this nexus: at the very least, constitutional theory should recognize that there are contexts where deploying the vocabulary of peoplehood is harmless (Scotland), and contexts where its’ identity is contested, and where its invocation is, as a result, problematic, and potentially dangerous (Bosnia and Herzegovina, Bolivia, Quebec, Syria).

Does this mean that Catalonia shouldn’t become independent? Joseph Weiler suggested as much in his recent contribution to EJIL:Talk![15] There, he painted the bleak picture of a petty nationalism, setting a bad example for the rest of Europe. I do not find this picture persuasive: Europe is not worse off with Norway, Belgium, Slovakia, Slovenia, Montenegro. Nor would the world be worse off with an independent Catalonia, Scotland or Quebec. In his response to Weiler, Nico Krisch argued that Catalan secession should not be seen as an exercise in tribal nationalism, but rather as a formation of a different political ‘we’, always embedded in a larger—albeit differently configured—‘we’ of the European Union.[16] Krisch has also suggested that the Catalan “drive to independence” is precipitated, in good part, due to ongoing and subtle discrimination by the Spanish state. I don’t know whether that’s true, but arguments such as these ought to form part of the larger debate about the legitimacy of the secessionist project. Equally, the complete unresponsiveness of the Spanish state (both the government and judiciary) to even discuss the demands for independence is what further legitimizes the Catalans’ insistence on seceding, and not an apodictic assertion of their sovereign ‘right to decide’. Finally, instead of an inflaming vocabulary of right—either Spanish or Catalan—due place should be given to the articulation of future political and social aspirations that would be served by Catalan independence.[17]

All this doesn’t mean that ‘the people’ can be (easily) eradicated from constitutionalist discourse, but it is quite possible to put it in its place. Again, the Secession Reference is a good example. The Canadian Supreme Court dignified the pursuit of secession by ‘the population of Quebec’, but did not draw any immediate implications from it for the future status of Quebec.[18] What follows from an expression of the will of the clear majority of the population of Quebec to secede is not secession, but good faith negotiations about it. ‘Good faith’ here should be interpreted as an injunction to negotiate towards secession, and not as an approval of the federal government’s foot-dragging. Inventing spurious ‘interests’ would only hurt the Canadian government’s claim to maintain territorial integrity, once Quebec decided to secede in frustration with the bad faith claims of affectedness on behalf of the wider polity.

Is this the way to go in Catalonia? In a previous post on ICONnect concerning Catalonian independence, Victor Ferreres Comella suggested that the Spanish Constitution may ultimately accommodate Catalan aspirations for independence.[19] In comparison, the Canadian constitution presented less of an obstacle for the project of Quebec’s secession; unlike the ‘inviolability clause’ of the Spanish constitution, the Canadian constitution is silent on the matter of territorial integrity and national unity. This silence enabled the Court to introduce the four unwritten principles that open the door to a constitutional secession.  Introducing the unwritten principles into the Spanish constitutional jurisprudence would perhaps be an insurmountable task given the explicit wording of Article 2 of the Constitution. Equally, introducing unwritten principles might cut both ways, because the ‘basic structure’ doctrine in India, for example, was deployed for precisely the opposite purpose.

In any event, a creative constitutional solution appears to be urgently needed. Hoping that one of the sides in this constitutional conflict will somehow stare down the other, may be hoping for the most elegant solution, but also calls forth the riskiest outcome.

 

 


[1] Proc. 250-00059/10 and 250-00060/10 online: http://www.parlament.cat/web

[2] Karlo Basta, “Reducing Catalonia’s autonomy as a reaction to the fiscal crisis would only provide more fuel for secession-minded nationalists”, LSE: European Politics and Policy, http://bit.ly/VHWl6R

[3] Article 8 of the Spanish Constitution, and article 240 of the Constitution of SFRY respectively.

[4] Andreas Kalyvas, “Popular Sovereignty, Democracy, and the Constituent Power” 12:2 (2005) Constellations, 223; for a more radical view see Joel Colón-Riós, Weak Constitutionalism (London: Routledge, 2012).

[5] Stephen Tierney, Constitutional Law and National Pluralism (Oxford: Oxford University Press, 2004)

[6] Stephen Tierney, Constitutional Referendums: A Theory of Republican Deliberation (Oxford: Oxford University Press, 2012)

[7] Chris Thornhill, “Contemporary constitutionalism and the dialectic of constituent power” (2012) 1:3 Global Constitutionalism 369.

[8] Ibid. at 379.

[9] Scottish Executive, Choosing Scotland’s Future: A National Conversation, para 3.5 at 20.

[10] Bill 1, s. 10.

[11] Grand Council of the Crees , “Sovereign Injustice: Summary of Double Standards, Inconsistencies and Discrimination by Separatists”, http://www.gcc.ca/archive/article.php?id=137

[12] See Hans Agne, “Why Democracy must be Global: Self-Founding And Democratic Intervention,” (2010) International Theory 2(3): 381–409

[13] Stephen Tierney, “Beyond the Ontological Question: Liberal Nationalism and the Task of Constitution-Building” (2008) 14:1 European Law Journal 128, 136. [emphasis mine].

[14] Alexander Somek, “The constituent power in a transnational context”, http://www.wzb.eu/sites/default/files/u32/somek_constituent_power_in_a_transnational_context.pdf

[15] Joseph Weiler, “Catalonian Independence and the European Union”, http://www.ejiltalk.org/catalonian-independence-and-the-european-union/

[16] Nico Krisch, “Catalonia’s Independence: A Reply to Joseph Weiler” http://www.ejiltalk.org/catalonias-indepence-a-reply-to-joseph-weiler/

[17] In that regard, Ronald Beiner’s juxtaposition of the two types of ‘public rhetoric’ of secession is a poignant intervention applicable not only to Quebec in the 1990s, but to Catalonia nowadays as well. He favours the first rhetorical exhortation, as an exemplar of the vocabulary of aspiration and prudence:

“(1) ‘We (Quebecois) no longer feel allegiance to Canada. We appreciate the past benefits of the union, of how we have grown and matured as a nation during this period of national co-habitation, but we feel we have outgrown this marriage of nations —we can flourish better on our own, without the constant constitutional squabbling, without the quarrelling over jurisdictions, without the feeling on the part of the other provinces that we are the spoiled brat of confederation. We go without rancour, even with some nostalgia for an interesting hundred and thirty years of this bi-national experiment. But we are ready for a new experiment.’

He contrasts it with the nationalist vocabulary of the “clenched fist”:

(2) ‘Give us our rights! We are a nation. We can determine our own fate. We have an inviolable right as a historical people to rule ourselves. You, as a separate nation, a separate people, have no right to involve yourselves in our national destiny.’”

Ronald Beiner, in M. Moore, ed., National Self-Determination and Secession (Oxford: Oxford University Press, 1998) at 163.

[18] Reference re Secession of Quebec, [1998] 2 S.C.R. 217, para 93.

[19] Victor Ferreres Comella, “The Secessionist Challenge in Spain: An Independent Catalonia?” ICONnect, http://www.iconnectblog.com/2012/11/the-secessionist-challenge-in-spain-an-independent-catalonia/

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Published on February 11, 2013
Author:          Filed under: Analysis
 

6 Responses

  1. Ran Hirschl

    Thanks, Zoran. An excellent, thought-provoking post. A former PhD student of mine, Vuk Radmilovic, published an article in the Canadian Journal of Political Science a couple of years ago that explains the strategic motives behind the Supreme Court of Canada’s carefully crafted judgement in the Quebec Secession Reference. Could you say a few words about the earthly political considerations (as opposed to idealist vision), if there are any, behind the Catalan parliament sovereignty statement?

  2. Zoran Oklopcic

    Thank you, Ran! I have limited expertise concerning developments on the ground but I think it’s safe to say that the Declaration should not be seen as a form of tactical posturing on behalf of pro-independentist parties with an aim of extracting a more limited set of political and economic concessions from the Rahoy government in Madrid. According to Elisenda Casanas-Adam from the University of Edinburgh, the adoption of the Declaration sets the stage for a collision between the Spanish and the Catalan ‘trains’, now ‘driving toward each other’.

    This doesn’t mean that there is no plurality of voices within the coalition that adopted the Declaration about the substance of the putative ‘dret a decidir’ (right to decide). According to Casanas-Adam, “even within the governing coalition party, there are different opinions about the final objective of the ‘National Transition’. Options include ‘full independence’ (Convergencia Democratic de Catalunya, Esquerra Republicana de Catalunya, Candidatura d’Unitat Popular), a ‘confederation with the Spanish State’ (Unio Democratica de Catalunya), and different forms of federalism (Iniciativa per Catalunya Verds, Partit dels Socialistes de Catalunya)”. (available at http://www.scottishconstitutionalfutures.org/)

    While support for ‘dret a decidir’ is high at 80% in the Catalan parliament, the existing differences suggest that we can expect further friction within the sovereigntist camp with respect to the wording of the referendum question and the number of options to be offered on the referendum ballot. Here the Canadian, and recent Scottish, experiences will play an important role. The Catalan government will probably face some pressure from the expert opinion to adopt a clear question that excludes mentioning Europe or some form of confederal association with Spain, and instead focus solely on ‘independence’ as the objective of the referendum. (An example recently proposed by NDP’s Craig Scott in his Bill C-470 in Canada: “Should Quebec separate from Canada and become a sovereign country?”) Equally, the Catalan government will probably face pressure to feature only two options on the ballot (in favour and against independence). The Scottish government, for example, abandoned ‘devo-max’ as a referendum option, accepting in the Edinburgh Agreement “a single question referendum”.

    One final thing: calling the Catalan right, ‘the right to decide’, can be seen, in part, as a response to the internal plurality within the sovereigntist camp. But I wonder whether it is also a very self-aware jurisprudential decision in light of the current state of play in international law concerning the right of peoples to self-determination. If the Catalan parliament thinks that ‘the people of Catalonia’ enjoys the right of external self-determination, why didn’t they say so? Can it be that by using the euphemism of ‘the right to decide’ they also signal their awareness that there is no opinio juris in the international community regarding the right of external self-determination (oral and written submissions before the ICJ in Kosovo AO are very instructive in this regard), and that they cannot rely on international jurisprudence as support for ‘the right to (external) self-determination (Kosovo AO’s circumvention of self-determination is again instructive)?

  3. I agree with Ran, this analysis is excellent and I hope we will see more like it.

    In the following I will raise some points that might be of interest.

    Unlike in Yugoslavia, the Spanish army has not made any threats. Those threats that were indeed made came from a very few retired army personnel, and they were called inappropriate by the minister of defence. There is no Veljko Kadijevic here.

    There is, actually, a possible territorial split within Catalonia, the one between the coast (Spanish speaking, unionist) and the hinterland (Catalan speaking, separatist). Demographics and election results, among other things, show that much. However, this is neither a clear split, nor do I foresee any group using it in the future to argue for a secession of coastal areas from an independent Catalonia.

    However, the argument of “territorial extent” works the other way round: the debate has never only been about Catalonia proper, but always also about the so-called Catalan Lands (Països Catalans). Catalonia officially defines itself as a nation, yet Catalan separatism traditionally sees the people in all of the Catalan Lands as the nation. The double definition of nationhood -one resting on historical institutions, the other on common culture (i.e. language)- is a contradiction that has never been solved. Both definitions coexist, and are now being used by Catalan separatists to first achieve the independence of Catalonia proper, and then continue working for the “reunification” of all Catalan Lands. This makes the Catalan case a very interesting one.

    As to the “right to decide” (dret a decidir), there is a paper by a Catalan academic (and declared separatist) from 2011 that is known by the local political players. It argues for a “paradigm shift” from the right of self-determination to the “right to decide”, maintaining that the former does not apply in the Catalan case.

    http://www.unescocat.org/fitxer/3373/QR4%20okxweb.pdf

    Nevertheless, a first draft of the Declaration of Sovereignty referred to both concepts.

    http://file01.lavanguardia.com/2013/01/10/54361766129-url.pdf

    The ongoing debate after this Declaration shows that Catalan separatists continue to draw on the right of self-determination.

    Negotiations -in good faith- are certainly the key. Madrid has so far shown little willingness to let a referendum on independence be conducted, calling it unconstitutional. On the other hand, Barcelona has shown little willingness to negotiate with Madrid, parting from the general idea that it would be useless, and declaring that it would conduct such a referendum, in the words of Catalan president Artur Mas, “sí o sí”, i.e. in any case.

    The Socialists, who are not in government neither in Madrid nor in Barcelona, have proposed to change the Constitution. This would certainly be a lengthy process, but not an impossible undertaking.

    It is arguably a main point, both politically and legally, that no separatist movement has enough arguments by simply redefining the polity in the sense it sees most fit to serve its purposes, without respecting legality and without exploring all possible ways within it to further its aims, presenting everybody with a fait accompli instead.

    This would ultimately lead to a unilateral declaration of independence, with the devastating effect of Catalonia’s accession to the European Union being blocked by Spain, and most probably other member states such as France.

    Ironically, opinion polls suggest that if a referendum were held under the assumption that Catalonia would be left outside of the EU, support for independence would drop significantly.

  4. Zoran Oklopcic

    Thank you, Candide, for a very interesting and extremely informative post! For me it was interesting to hear that there are actors on the separatist Catalan side who argue that the principle of ‘self-determination’ should not be understood as supporting the project of secession. In your post, you also mention that the first draft of the Declaration mentions ‘right to self-determination’. Interestingly, similar nuances can also be found in the Kosovo case. While the 2005 Resolution of the Kosovo Assembly on ‘reconfirmation of political will of the Kosova People for Kosova as an independent and sovereign state’ immediately invokes ‘the right of peoples to self-determination’ (http://www.assembly-kosova.org/?cid=2,128,567), the actual 2008 Declaration of Independence is more euphemistic in that it invokes ‘the call’, or ‘the will’ of ‘our people’ without relying on the actual international legal norm of self-determination.
    (http://www.assembly-kosova.org/?cid=2,128,1635)

    I agree that negotiations in good faith are the key here, and from what I gather from the Spanish media, several constitutional scholars such as Agustin Ruiz Robledo , have sought inspiration in the Canadian approach, noting how the democratic principle (para 87 of the Secession Reference) legitimizes secessionist pursuits.http://elpais.com/elpais/2012/10/18/opinion/1350581214_783960.html

    But, in his editorial, Ruiz Robledo doesn’t seem particularly concerned with art 2. as an obstacle to an independence referendum. In your opinion, would the Court be deferential to the putative 2/3 majority-change of the constitution that would enable secession? Do you see any constructive role for the Spanish Constitutional Court in regulating (and legitimizing) secessionist pursuits, in the absence of the consensus between the central government and the Catalan authorities, or is it indeed a matter of constitutional science-fiction to expect the Court to dramatically depart from its recent jurisprudence?

    • I’m a bit at loss with your first sentence, Zoran. All separatists in Catalonia invoke self-determination with the clear aim of secession, and they have proven that their own calls for a democratic decision of letting the people decide regardless of the outcome are nothing more than lip service. So they have shown in the wave of local mock referenda between 2009 and 2011, and they are presently showing this with the Association of Municipalities for Independence AMI, one of the pillars of the separatist movement: having no authority over the matter, many municipal governments have pre-judged the outcome of a referendum on independence, in contrast not only to every democratic principle, but also to even the most basic ideals of the separatists themselves, namely that the people should decide, and that it be all the people.

      The difference between the two Kosovo declarations may be explained by seeing the 2005 one still arguing within the context of the right of self-determination having been a legal figure in the 1974 Yugoslav Constitution (and of those of all republics, which is why the republics did use it in their declarations of sovereignty/independence; something Kosovo apparently tried to mimic at first), but that in 2008 Kosovans had received a lot of (foreign) advice on the matter and, now disregarding the normative function of the Constitution of an anyway defunct state, were looking at international law to find out that this right was not easily applicable to Kosovo; so they took it out of the equation.

      As to your questions, and without being a jurist, I agree that the Spanish government could -and should- call for a referendum in the terms described by Robledo. The Constitutional Court would not enter in this phase; nor in any posterior one if things are done right.

      Such a question asked in referendum would not be unconstitutional, and if there were a clear majority in favour of independence, there would have to be negotiations between Madrid and Barcelona on how to implement it, which in the end would lead to a reform of the Constitution -to which the Constitutional Court could not object either- with the aim of legally allowing for secession.

      The onus is on the politicians to show the will to go through all these motions. As of now, there’s pretty little of it on either side of the divide.

      • To clarify one point: such a referendum (re Robledo) would have to be held in all of Spain. There’s a precedent for the failed attempt at asking a somewhat similar question as a significant part of the so-called Ibarretxe Plan.

        http://www.boe.es/boe/dias/2008/10/10/pdfs/T00003-00014.pdf

        Robledo refers to this, however he still maintains that a referendum could be held only in Catalonia.

        As I said, I’m not a jurist, but I disagree with Robledo on this point.

        Anyway, the result of a referendum in all of Spain could be broken down to the Autonomous Communities and thus would serve the purpose of letting us know what the people think. It would have to be carefully worded so as to not prejudge a later referendum that would have to be held on the actual change in the Constitution (see article 168).

        Maybe something like: “The Catalan government has expressed its opinion that Catalonia should be an independent state. Do you agree with this opinion?”

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