Thursday, 26 October 2017

Being Boring

If, as Ian Dunt pointed out, they get you with the boring stuff then we need to arm ourselves so they can't.  I'd like to play a part in that.  This blog is about finding things out (often quite boring things) and sharing that knowledge.

Recently, I started to wonder how it came about that the Catalonian referendum was declared illegal.  How on earth did that happen?  How come nobody did anything about it?  Isn't it in conflict with other laws? Well, there is an answer and in that answer I hope there is an appeal for calm and reason. 

The root of the conflict in Catalonia is that Article 2 of the Spanish constitution asserts the indivisibility of Spain.
Section 2
The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognises and guarantees the right to self government of the nationalities and regions of which it is composed and the solidarity among them all.

Articles of the constitution, however, are not the same as law.  Instead, law is guided by the constitution.  With that in mind, the constitutional court of Spain ruled on the legality of the Catalonian referendum and concluded that it was in breach of 5 articles of the constitution and 2 entries in the Catalonian statute. As a consequence, the referendum was illegal in Spanish law. I urge everyone to read through the constitution and see if anyone can spot the Articles that might be in question. I'm no expert but I found 3 candidates in about 10 minutes. It isn't all that surprising to learn that the court ruled unanimously.

A few weeks ago I started to wonder if this ruling was in breach of Spain's international obligations on human rights and democracy.  There are obviously experts out there who already know the answer but I wanted to find out for myself.  I first looked to see if the ruling was in conflict with EU law. The EU had nothing whatsoever to say about this because constitutional affairs and policing are not EU competences. No EU law has been broken.  I then looked at UN Declarations on self determination to see if the ruling of the Spanish constitutional court was in conflict with UN law. It was something of a surprise to learn that the Spanish constitution was not obviously in breach of any UN declaration on self determination. Learning that the integrity of territorial borders is protected in UN law was even more of a surprise, although I can think of plenty of sound reasons as to why that may be the case. I can only conclude that the referendum was illegal and that it was legitimate, although certainly not prudent, to take steps to prevent its implementation. 

It is a valid question to ask if the court ruling and the constitution live up to shared standards of modern democracy.   Is it commonplace to have an article of the constitution that expresses the indivisibility of a territory? Do other democratic nations have similar constitutional arrangements? The only way to find that out is to look at the constitutions of countries that we might consider to have high democratic standards. It turns out the constitutions of  Italy (Article 5), France (Article 1) and Austria (Articles 2 and 3) all have near identical provisions.  The pattern is clear: there is nothing unusual in Spain's constitutional affairs; it is certainly not an anomaly.  I'm not aware of any constitution that expressly provides for secession.

Given that the principle of indivisibility is commensurate with modern democracy I started to read about why this is the case.  Are there sound reasons for this? It turns out there really are sound reasons and I think some of them will appeal to many readers of this blog. One reason is to ensure wealth distribution by stopping a rich region seceding and leaving poorer regions behind. I can't argue with that. Another reason is to stop a region being taken over by undemocratic forces and essentially stealing land and assets from the people. After watching a documentary about the actions of Farc and militia groups in Columbia, I can't argue with that, either. Yet another reason is invasion by a foreign power. Again, it's hard to argue against that one. Isn't it comforting to know that if a region was invaded then the nation state would intervene to protect its own citizens? I can only conclude that there exist high-minded and appealing reasons to protect territorial territory in a constitution. I might even argue that protecting territory (and its people) is a basic duty of state.

I'm near the end now and I think I understand how the Catalonian referendum was declared illegal.  It was declared illegal because it violated the constitution.  There is nothing particularly anomalous or obviously undemocratic in the Articles of the constitution that were considered in that ruling.  I've looked for international law that might counter the ruling.  That obviously wasn't an exhaustive search but I couldn't find anything and everything I did find pointed in the opposite direction. The problem, then, is that Spanish law does not provide for the unique set of circumstances that have occurred in Catalonia. Yelling at Jean-Clauder Juncker won't fix that. Calling Rajoy a fascist won't fix it either.  I hope it is now self-evident that talking about losing faith in the EU won't do anything to repair the problem and only hinders future choices for no gain. Most of all, adopting entrenched views that push everyone onto one side or the other is definitely not going to fix it.   It strikes me that this requires diplomacy and calm heads to sort it out.

I've deliberately narrowed my focus in this post.  I've not thought about the legal powers used to disrupt the referendum or the disproportionate use of force exercised by some police officers.  I've also not thought about the powers that Rajoy is about to invoke in order to, as he might put it,  restore the rule of law to Catalonia.  There are plenty of posts elsewhere about all of that so I've restricted my posts to (boring) topics that I wanted to know more about.  It's not clear what is going to happen but it sounds genuinely troubling, to say the least.  After all, just because the constitution makes provision for a power it doesn't necessarily mean that power is exercised.  Moreover, just because an action is supported by an Article of the constitution that doesn't make it automatically legal because it may violate other Articles or international obligations to human rights.

I might come back to this in the future but then again I might not.  My experiences so far of trying to share my findings beyond this blog have been met with, ahem, quite an extreme response.  I'm primarily concerned that people who don't have to live with any of the consequences are ratcheting up the tension.  I'm concerned I might be indirectly contributing to the tension, even if there is no evidence of that on the blog itself.  As a consequence, I might leave this topic well alone from now on or just limit myself to generalities that might equally apply to Scotland.

Over and out,


PS I'd like to quickly revisit all those calls for Juncker or the EU to intervene in the situation in Catalonia.  Such calls are asking for Juncker to force Rajoy to abandon his commitment to the Spanish constitution and the rule of law.  That might be construed as the imposition of extra-judicial law by a foreign power.  Just a thought...

PPS In many ways the EU has saved itself the trouble of ruling on rights to self determination and, more generally, on human rights by outsourcing all of that to existing organisations such as the UN and the Council of Europe.  Why reinvent the wheel?  Why create another layer of potential conflict between shared competences?  There is no reason to do any of that.

PPPS People are very quick to judge Juncker but not interested at all in António Guterres, General Secretary of the UN.  After all, it is the UN that could provide the right to self determination but doesn't.  This is not a call to arms to start calling António Guterres every name under the sun.

Update:  Hugh asked on twitter about Kosovo's independence.  I've not read this yet but I'm hoping it has more good news in it than I've been posting for the last week or so.  It's the International Court of Justice's ruling on Kosovo, if anyone is interested. If anyone can beat me to a conclusion please post it in the comments.

Update 2: Boy, that is a lengthy court ruling.  It makes an advisory ruling that Kosovo's declaration of independence does not violate general international law.  How the court got there is quite complicated.  It first determines the question it is able to answer.  It points out that it cannot make a ruling on domestic law and will limit itself  to international law. It also points out that it is not being asked to rule on the right to self determination and ventures no opinion on that because it is not what it is being asked to answer.  It then asks whether the declaration of independence violates any law ie whether it is illegal.  To do that it first considers general principles and then moves on to specific issues surrounding Kosovo related to its unique circumstances.  On the first point, the court finds no international law has been violated.  The second point iterates over UN resolutions affecting Kosovo (eg the UN had/has a peace-keeping mission in Kosovo) to see if they affect the case.  For example, whether the authors of the declaration were part of the UN interim administration is discussed. The court rules they weren't part of the interim administration, allowing the court to conclude that the authors of the declaration acted as representatives of the people of Kosovo. Anyway, the ruling is that UDI doesn't violate any general international law.  We need to remember, though, that domestic law was not considered by the court.


Saturday, 21 October 2017

The Right To Self Determination

How many times have we all read that Catalonia and Scotland have a right to self determination?  I would reckon thousands of times, probably hundreds of times just in the last week or so.  There are countless Yes blogs and tweeters reiterating this right by the second but does this right really exist?  What is the source of the right?  To whom does the right apply?  Let's find out together.

This particular post is going to address the rights of  any people to seek self determination. Before we crack on with the show please remember not to shoot the messenger.  There are uncomfortable truths in this post (I found some of them uncomfortable) and long-held assumptions will be challenged (mine certainly were) but I am neither a fascist nor a Nazi enabler. The same is just as true of Jean-Claude Juncker and Guy Verhofstadt.  In fact, can everyone please stop calling everyone else Nazis because the sitaution in Catalonia regarding free speech and journalistic freedoms is actually rather dire and that comes just as much from the independence movement as any other.  If we can all just calm down we might stop fanning the flames.  Now that disclaimer is out of the way let's crack on with the legal right of peoples to seek self determination.

The Right To Self Determination

Does Catalonia have a right to self determination?  If it does have this right and that right is being denied then maybe the EU should really be bolder here.  The problem is that that Yes tweeters and bloggers talk about the right to self determination but I'm not absolutely sure what they mean.  Is this a moral right?  Moral rights are a bit vague for me because we all have different moral standards and it is almost impossible to adjudicate on that.  Every story has two sides, after all.  I really need to see that right written down in some kind of document that we can all recognise, perhaps something from the United Nations in the form of a declaration.

If I'm going to understand the legal consequences of any document I'm first going to have to understand the terminology used in it.  Words like "people" and "self determination" itself pop up all the time so we need to try to understand what they mean before we can try to to decode any legal document on the topic. What is a "people"?  More to the point, what is "alien subjugation" when it's at home?  Many tweeters talk about "the people of Catalonia" but do they mean it in a legal sense with respect to a legal definition of self determination provided by international law? We're going to have to find out by looking at the source documents.

The UN has a number of historical declarations that refer specifically to self determination.  Modern tools like google search make it embarrassingly easy to find these declarations.  It didn't take me long to stumble across Article 55 of the Charter of the United Nations and the Declaration on Colonial Independence and the Declaration on Friendly Relations.  I'm basically stupid but I'm also tenacious so I spent a few hours working my way through them taking notes, going over sentences again and again until they made sense.  It turns out that the key sections of text are actually quite short but after reading them I was left more confused than I was at the start.  The problem is that they are self contradictory, introduce terms that are never defined, and sometimes vague.  I started to wonder if my basic stupidity had triumphed over my tenacity until I stumbled across an academic history of self determination as a legal term. This has proved a valuable resource in that it turned out I wasn't quite as stupid as I thought: these declarations are confusing and self contradictory.  Moreover, understanding the historical context of the declarations really helped to clarify the legal intentions and their possible interpretations.  I've borrowed my understanding of the timeline from that history of self determination so I obviously urge everyone to read that at their leisure.  You're not getting off that easily: I obviously urge everyone to read the UN declarations as well.

 League of Nations

We  now think of it as a legal right but self determination actually started out as a principle.  Woodrow Wilson was one of the first prominent figures to make pronouncements about self determination when in 1918 he declared,
"self-determination is not a mere phrase. It is an imperative principle of action which statesmen will henceforth ignore at their peril."  
Self determination was in the air back in 1918 but it wasn't yet a legal concept.  With the reshaping of borders in Europe being determined by blunt political needs rather than the needs of "peoples", laws were surely needed to help out here.  It's just that there weren't any.  The League of Nations didn't have any laws on self determination, even though it made positive noises at the time.  Self determination was no more than a principle and certainly not a right defended by international law.  The case of the Åland Islands gives a flavour of the times and the ambiguity that surrounded self determination. 

In 1945, the League of Nations was replaced with the United Nations and the Charter of the United Nations was signed to mark its inauguration. Article 55 contains the only significant mention of self determination but, to be  honest, it isn't very helpful in determining whether Catalonia can claim a legal right to govern itself.  I urge everyone to read that for themselves.  It is short but also short on the kind of detail that might be of any use to anyone whatsoever.  When it comes to moving from an ambiguous principle to a definitive right, the UN wasn't any more effective than the League of Nations.


The idea that self determination could be a legal right really took root in the 60s and 70s with the end of the European empires.   The United Nations took a leading role here with its "Declaration on Colonial Independence" in 1960.  I've read through this a few times and it is a confusing document.  It turns out that it is confusing and contradictory and my handy historical guide confirmed it.  The declaration makes significant reference to an unconditional end to colonialism and is entirely about ending colonialism but then paragraph 2 declares the right  to "all peoples". 
2. 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.
 Hmm.  It does not define "peoples" but it does give caveats to those rights: "freely determine their political status and freely pursue their economic, social and cultural development".  Does that sound like an attempt at a definition of colonial rule? It might be but I honestly don't know. Catalonia isn't under colonial rule and I really cannot argue that economic, social, and cultural development is denied to Catalonians. What about political status?  This strikes me as another vague term.  Spain is a democratic nation with local, regional and national elections.  Does that count as determining political status?  I don't know.  It would only be clear if it specifically mentioned the right to form an independent state or a right to national identity or something like that.  Perhaps it can be argued that the intention of the declaration is only to be used within the context of declonisation.  On the other hand, perhaps the authors really intended a wider application of the declaration. I don't know about that. I'm not a lawyer so please make your own judgement. We can say for sure, though, that it has only been applied within the context of decolonisation. I think we can all agree that Catalonia is not a colony of Spain.

What else is confusing about the Declaration on Colonial Independence?  In paragraph 5 it suddenly introduces the concept of Non-Self-Governing Territories but up until that point it had been entirely about "peoples". 
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom.

 Are "peoples" and "Non-Self-Governing Territories" the same or do they mean different things?  Could a territory contain multiple peoples?  Could a people span multiple territories or incorporate partial territories?  Do people take legal primacy over territories?  We'll actually get to some of that later but this analysis has a narrow focus so I'm only going to worry about it if it pertains to Catalonia.  A Non-Self-Governing Territory is one that is subject to the process of decolonisation.  Catalonia isn't on the UN's list so we can just ignore this ambiguity within the context of this specific declaration.
There is yet more confusion in the Declaration on Colonial Independence.  This is the first time that we encounter the term "alien subjugation".  What does it mean?  I honestly don't know but a google search did point me to a compilation of erotic fiction of dubious literary merit.  It may be well be a fantastic read with "perfect tales dripping love, romance, and seduction" but that doesn't really help.

It's time to take a quick breather.  We're nowhere near a modern interpretation of self determination but I hope we're all getting a sense that this is complicated stuff.  Even attempts at sorting out the specific case of decolonisation ended up being filled with ambiguities, undefined terms, and confusions of legal primacy.

Friendly Relations 


In 1970, the United Nations adopted the Declaration on Friendly Relations.  Reading about this online leads me to believe this is the legal gold standard for a definition of self determination.  Is it also a confusing and contradictory document?  Yes, it is but far less so than the preceding Declaration on Colonial Independence.  We're going to dive in and we'll be underwater for some time so take a deep breath and steel yourself.

The declaration has a specific section on self determination and it begins with a near reiteration of a statement we've already seen in the Declaration on Colonial Independence
 "...all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development...".  
This isn't exactly unambiguous because it doesn't define "peoples" or "political status". Let's read on to see if it all becomes clearer.  The declaration then goes on to state the aims of self determinism.  The aims are to create friendly relations between States and to bring a speedy end to colonialism according to the wishes of the peoples involved.
  1. To promote friendly relations and co-operation among States; and
  2. To bring a speedy end to colonialism, having due regard to the freely expressed will of the peoples concerned;
This sounds like a very narrow focus is intended here so this is perhaps a clarification of the  Declaration on Colonial Independence.  That idea is undermined by a later paragraph, which seems to suggest a much wider focus.
The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.
This certainly suggests that self determination includes the establishment of an independent state and it might even be argued that Catalonia falls under the category of a people with that right. This looks really promising but we're not at the end yet.  This document follows a cohesive whole, like all legal documents, so we need to read every last line.
Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which 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 as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.
This paragraphs basically says that the principle of territorial integrity or political unity takes primacy over the right to self determination except in the case where a people is attempting to escape the clutches of a government that discriminates on race, creed or colour.  It's clear to me that Catalonia does not have a legal right to self determination under the Declaration on Friendly Relations because the territorial integrity of Spain trumps everything.   The only conditions under which Spain's territorial integrity does not take precedence over Catalonian rights to self determination would be if it discriminated by race, colour or creed. Spain categorically does not do any of that in Catalan.



It's a rare event indeed for this blog to draw a firm conclusion but it really seems as though Catalan does not have an automatic legal right under UN law to claim self determination.  The same is true of Scotland.  If Catalan's leaders thought it did have that right would they not have tested it at the International Court Of Justice?  I obviously can't be sure but I think it is telling that it hasn't happened.

I feel like I've uncovered an uncomfortable truth.  I had always assumed that the right to self determination was enshrined in international law and that there was a legal conflict between the Spanish constitution and international law.  I was completely wrong; I can't see any conflict here at all.  Something similar happened when I tried to find an EU law that Spain had broken by denying the Catalonians the right to hold a referendum.  I expected to find an appropriate law but I couldn't find any such law because no such law exists.  Only then did it become clear why the EU was floundering around looking generally like useless idiots.  The situation with the UN, however, goes much further than that: a law does exist and it expressly does not provide for the legal right to self determination, except in specific circumstances that to not apply in this instance.

If the Spanish government hasn't broken international law and it hasn't broken EU law then it is useful to ask if it has broken Spanish law.  For example, is it doing anything that runs counter to its constitution? I'm trying to work that out right now and it will likely be the subject of my next post.

PS  Do whatever you want this post but in light of this report please stay calm so as not to fan the flames. Do please read the report from Reporters Without Borders. It is a genuinely sobering read.

Wednesday, 18 October 2017


It's been a disappointing few weeks, to be honest. My melancholy can be sourced to the countless Yes blogs and twitter accounts that are busily working themselves into a right old fury about the EU. To make matter worse, it seems that reason is in short supply whenever the EU is involved. Debunking one myth only leads to a hundred others resurfacing in a latent anti-EU rage. Most of this anger stems from a fundamental misunderstanding of the function and limits of the EU. To add to the mix, however, we have rehashed arguments from the Lexit crowd working in tandem with an almost Orwellian "EU bad" instinct.

I've seen outlandish arguments that Scotland should definitely join EFTA because the EU is "neo liberal". Switzerland may be as much old money as it is nouveau riche but I'm here to report that it is most definitely not a hotbed of radical socialism. After all, a founding member of an organisation called the European Free Trade Association is every bit as likely to be "neo liberal" (whatever that might actually mean) as the European Union. Despite all that, EFTA has an inexplicably high approval rating in the independence movement.

Then there's the old chestnut of Article 7 of the Lisbon Treaty.  This one has been debunked by hundreds of twitter accounts and blogs but it just refuses to die.  I'm starting to dream about a post-nuclear landscape with thousands of Scots shuffling around in the freezing cold,  spluttering half-remembered grumbles about the Lisbon Treaty from their melted faces.
Someone please invent digital Domestos to kill wrong-headed ideas stone dead.
Can we do better?  Well, apparently not.  This next one comes from the top, from someone whose job it is to know all this stuff, from someone who knows full well the power of words and their ability to misinform. Why is this important? Well, it's because peaceful political protest is being thwarted by the Spanish government and Angus B MacNeil used that to make a political point rather than to direct genuine concern and anger towards the politicians and institutions that could actually do something about it.
I notice they're not in a jail in the UN or NATO or WTO or OECD or G12.
I'm afraid we're not finished with Angus B MacNeil.  He followed up this with this zinger for the Guinness Book of Stupid.

Make up your own caption please, I'm lost for words.
 Who can forget the good times over at commonspace?  The EU, apparently, risks turning support against itself simply by merely adhering to all of its rules and laws as laid down by its own membership. Just in case we're worried about journalistic credentials, it was written by a self-styled EU guru with a "... good understanding of Europe’s operation, positives, and shortcoming [sic]".  Sadly,  the author didn't have a good understanding of very much at all and proceeded to hack away at the "EU bad" boilerplate with bizarre conflations and confusions of European institutions and the limits of their power.  Is this the best we can expect from digital journalism in the 21st century?   Commonspace has the resources of more journalists than any blog; it can pick and choose its own news agenda; it doesn't have to rush to publication; it has the freedom to publish links and data; it can readily publish corrections.  This is the best it can do?

What has frustrated me most? The lack of nuance; the almost willful disregard for the trade-offs involved; the inability to realise that decisions have consequences both good and bad; a rejection of source documents; ideological knee-jerk winning over the reality of messy compromise that reflects the experience of our very own lives. I'm so completely fed up with this so I'm going to halt my countdown of shame.

This is a tiny blog with a very specific audience who are interested in source documents, complicated arguments, discussions about the relative merits of trade-offs.  If you're reading this blog then you're interested in nuance and debate.  There are, of course, reasons not to join the EU and I'm happy to listen to them because they really exist and I've only thought of a minuscule fraction of them. I've  even posted some of the ones that occurred to me on this very blog.  I'm happy to say that many commenters here have posted their own reasons not to join the EU.  If only the rest of the independence movement was even a tiny bit like that.  They probably are in all sorts of respects but any mention of the EU or Europe seems to trigger a brain melt-down.  "EU bad" is not a valid argument.
I honestly don't know what to say.  The myths spread by the anti-EUers of the left and the right have taken root.  It feels like they've won and no amount of argument can shift that view.  I'm frustrated, I'm disappointed, I'm worried that a groundswell of uninformed opinion is creating an environment where the wrong decisions will be made for all the wrong reasons.

Over and out,


PS I did promise that this blog would follow the emotional rollercoaster of Brexit.  Well, this is the latest update.

PPS I deliberately heightened the drama to make this more fun to read. Everyone likes a bit of drama, right?  I am a little bit fed up, though.


This is wider than I'd ever imagined so I thought I'd start a gallery of the kind of misinformation that is being spread by Yessers.  I can't even be bothered redacting the tweet accounts. I'm not even sure why I bothered in the first place because they are all in the public domain.

Here's the first.  Note the 56 retweets and 66 likes.
66 likes. 58 retweets.  Oh dear.
And another. 
27 retweets. 23 likes. Still early days.

I do know why and I did respond but I suspect his head has already exploded. 

Stay tuned for more.  I need to get back to work now.

It's the weekend now and this one is just too good to miss.  If the EU genuinely intervened to undermine the written constitution of a democratic nation without recourse to democratic accountability, what would you call that?   Answers on a postcard to Mr Malky.

 Well, that escalated fast.
When you run out of arguments just go for an ad hominem attack because that always helps.

Initially, I was just "pious", "peurile" and an "uncritical buffer".  It''s a short step to being a repulsive Nazi enabler.

Saturday, 7 October 2017

What Can The EU Actually Do?

My last post on the limits of EU authority turned out to be slightly controversial. This time I'm going to dial up the confrontation to a huge 2.5/10 by continuing on the same theme as last time.  That theme, of course, is the thorny issue of the EU's muted response to the appalling scenes of police violence aimed at undermining a democratic process in Catalonia. Before we proceed I just need to make it clear that if I was from Catalonia and didn't have a strong view on independence prior to last Sunday I most definitely would have one now. The actions of the Spanish government were so appalling that it is all but impossible to support the constitutional status quo. The question is what the EU can do about it today and what it can do in the longer term.

I'm going to start by repeating what I said last time: nobody in the EU has the power to speak out about Spain's constitutional or policing arrangements on behalf of the EU or its membership. There are plenty of opportunities for MEPs to speak out in an individual capacity; party groupings in the European Parliament can formulate policy on the issue;  parliamentarians across the EU's membership can say exactly what they want. National governments can also speak out but already the toing and froing of the many coalition arrangements starts to limit their ability to do so. You know what? We've seen all of this happen. It's disappointing that it didn't happen more but we all get to participate in the election of our political representatives. People of Europe, you know what to do. The key question is whether there exists an office holder of the EU who can speak out on behalf of the entire EU on the narrow issue of Spanish policing? Is there an institution of the EU that can formulate an immediate political view on the constitutional affairs of a member nation? Is there an individual or institution of the EU that can take immediate punitive measures against the Spanish government without consultation or formal investigation? The answers to all of these questions is that no such individual or institution exists. The EU is a union of collective action through consensus rather than a government itself. The only power it has is the power given to it by its membership.

The EU's areas of competence are really quite wide but they also have their limits. In each of these areas of competence the EU acts by creating laws that are either directly applicable (Regulations) or by issuing instructions to national governments to add laws to their legal framework that uphold agreed specifications (Directives). Extending the range of competences can be achieved by amending treaties or creating new ones. I think everyone has heard of the Lisbon treaties. This was a prolonged round of negotiations that attempted to extend the range of the EU's competences. It was controversial, to say the very least. Attempts to create a European Constitution were abandoned after France and the Netherlands rejected it at referendum. Attempts to introduce a raft of crime and justice initiatives were rejected by the Irish and only accepted after guarantees were made about the scope of their legal interpretation. The UK, of course, opted out of most of the crime and justice initiatives but then opted back in to some of it after Theresa May decided that the European Arrest Warrant had more positives than negatives. The key point is that the European Commission doesn't just plan a power grab of extended competences before forcing it on its membership. The EU's competences are limited to those powers given to it by agreement of its membership.   Here's the crunch: the EU does not have a mandate over policing or constitutional affairs because nobody gave it that power. It's hard to point at Spain and say that it broke EU Regulation 9711 (Police forces of the EU)  paragraph 7 section c because nothing like that exists. The Spanish government and the Spanish police might have violated Spanish law but that is purely for Spanish courts to decide in the fullness of time. I just want to point out that Spain has not yet suspended its legal or judicial systems.

Many commentators have pointed out the possibility of human rights violations in Spain.  Specifically, the adoption of the "Charter Of Fundamental Rights Of The European Union" has been mentioned.  The Charter certainly enshrines the European Convention on Human Rights (ECHR) into EU law but in a very limited way that does not extend to Spanish policing.  What does the Charter actually do?  Well, it actually has several consequences.  The first is that it forces EU institutions and bodies to uphold the ECHR.  Secondly, it ensures that directly applicable EU law upholds the ECHR. Thirdly, it ensures that the implementation of EU law by member states does not in any way violate the ECHR.  Finally, it allows citizens to take their own government to  an EU court if the ECHR has been breached but only within the limits I just described. I'm just an amateur blogger but my conclusion is that the Charter is limited to the competences of the EU.  It does not allow a citizen of a member state to take their government to an EU court (I would guess that would be the Court of Justice of the European Union) unless it involves a question related to EU law.  Spanish policing is not an EU competence, it does not involve the implementation of EU law and it does not involve directly applicable law.  Spanish policing is a matter for Spanish courts rather than EU courts.  This isn't what we want to hear but I'm afraid to tell you this is what was agreed in the Lisbon treaties.  The suppression of the referendum in Catalonia falls beyond the competence of EU courts and the adoption of the Charter does not change that.

 All EU nations must also be members of the Council of Europe.  That means upholding the European Convention on Human Rights and recognising judgements made by the European Court of Human Rights ((ECtHR).  If a member nation was found to be in contravention of the ECHR and refused to accept the judgement of the ECtHR then they could be suspended or expelled from the Council of Europe.  Membership of the Council of Europe is a basic EU obligation so EU membership would also be suspended.   There are three things to think about here. The first is whether Spain has acted in a way that violates the ECHR. The second is whether Spain rejects the judgements of the ECtHR and effectively suspends its commitment to a definition of human rights shared across the EU. The third is whether the EU will recognise that action as a breach of Spain's obligations and proceed to suspend or expel Spain from the EU. Many readers here have read other commentators make definitive statements that human rights have definitely been abused and that the EU must take immediate and punitive action against Spain as a consequence.  I hope I've given some flavour of the arguments against that already but I'm going to go into this in a bit more detail in the following paragraphs.

Has Spain contravened the ECHR? That isn't immediately clear. There are many commentators who are a) clear in their minds that human rights have been violated and b) believe that the EU should immediately accept that view as a binding legal judgement. My sympathies lie entirely with the Catalonians but I am not a human rights judge tasked with upholding a complicated matrix of rights and a mountain of case history. Like almost everything, human rights are complicated and in many cases judgements must strike a delicate balance. For example, I have the right to religious expression but do I also have the right to wear religious symbols at work? In this case, Spain has the legal right to protect its territorial borders and the right to use force to do so.  This isn't what we want to hear but I'm afraid that protecting territorial borders is a basic duty of state. The Catalonians, on the other hand, have the right to request self determination and the right to free expression. At first glance this might appear simple but after 10 minutes of thought I hope we can all accept it is something more complicated than we first imagined. We cannot expect the EU to accept that Spain has breached its treaty obligations because it is not the EU that has the final word on human rights. The final word on human rights violations falls to the European Court of Human Rights. Until we have a judgement we can't expect the EU to do anything.  This is not going to happen today, next week or next month.  We need to be patient.

What happens if Spain is found to be in violation of the ECHR and then proceeds to ignore the rulings of the ECtHR?  Failure to uphold the ECHR is far from commonplace but it does happen from time to time.  That alone is not enough to suspend Spain from the EU - if it was enough then there would be very few states left in the club.  Failure to uphold the judgements of the ECtHR, on the other hand, is a much more serious situation because it suggests that violating human rights is a deliberate strategy rather than a disagreement on legal interpretation.  How often does that happen?  The problem here is that failure to uphold judgements also happens from time to time.  Failure is a strong word and I should qualify it with an example.  The UK government lost a human rights case involving a blanket ban on prisoner voting rights.  They lost the case but then Westminster voted down an amendment to UK law that would have implemented the judgement.  The UK government is in a precarious situation where it is a member of the Council of Europe but failing to uphold the basic obligations of membership: repeated rulings against the government have not resulted in a relaxation of the blanket ban.  Despite that, the UK remains in the Council of Europe and the EU (ok, not for long but that's another story).  A stalemate seems to have settled over the case with the UK making vague noises about future changes to the law and the Council of Europe issuing warnings that the UK needs to take action but without imposing any penalties in the interim.  I picked on the UK here because I happened to be familiar with the case but I'm sure the UK isn't the only nation struggling to implement the ruling on prisoner voting rights.  I'm sure some digging around would have brought up some other cases, too.  The point I'm  trying to make is that there are plenty of ways that states can prevaricate on implementing ECtHR rulings without being suspended from the Council of Europe.

The EU requires member states to be signatories to the ECHR and members of the Council of Europe.  The UK has for some years been in dispute with the courts of the Council of Europe yet it remains a member and a signatory to the ECHR.  It is likely not the only state in this situation.  For as long as the UK remains a member of the Council of Europe it can also remain a member of the EU.  That would also be true of Spain in the most extreme case I considered here.  Of course, suspension of membership of the Council of Europe would result in Spain being also excluded from the EU.  Article 50 was actually constructed for exactly this  kind of case - it was as much a mechanism to expel an unwanted member as it was a mechanism for a state to voluntarily leave.

In the case of the Catalonian referendum Spain has not yet been found to be in breach of the ECHR.  It has not yet put itself in a situation where it deliberately ignores the judgements of the ECtHR.  It has not yet been suspended from the Council of Europe.  My last post gave more detail on this point but it is also not immediately clear if Article 2 of the Lisbon Treaty has been breached and even if it was agreement about that would take time because the EU proceeds by law and process rather than knee-jerk reaction (see Article 7 of the Lisbon Treaty).

Why is everyone screaming at the EU?  It's because the myths of Farage and the Daily Express have taken root deep in society, even with people who are the exact opposite of Farage and the Daily Express.  The EU is not a federal super-state; neither for good nor bad has it all-conquering powers; Jean Claude Juncker is not the most powerful man in Europe.  We should be thankful for all of that because if the EU really had the powers to intervene in Spain we'd have created a terrifying undemocratic monster that would control literally every aspect of our lives without any hope of accountability.  Like all institutions, the EU is imperfect.  It has to juggle the needs of citizen and state, business and consumer, national sovereignty and harmonised law.  Over the years it has struck a balance between all of these competing requirements.  It is what it is but many think it is something else entirely.  That misunderstanding has directed anger away from the politicians and heads of government who could make a real difference and towards an institution that acts under legal constraints limiting its ability to take any action at all.

Over and out,


PS Alyn Smith lays out the tensions in the EU that lie between fast decision-making, consensus politics and the need to avoid a federal super-state here.  The EU is an imperfect institution but we need to remember that institutions are always imperfect.

PPS James O'Brien provides some great background to the situation here.

Update:  I had a bit of a rant over at commonspace on an article that finally tested my patience.

Update:  I'm going to be away for the next few days so I might be a bit slow responding to any future comments. Sorry about that.

Monday, 2 October 2017

EU Misconceptions

This is normally a lighthearted blog about the mess being created by the UK government and the hapless fools at the core of UK politics. I'm afraid I'm in a more sombre mood today after Sunday's shocking scenes surrounding the Catalan referendum. I don't want to go in to that too much because this blog is mainly about Brexit and Scottish independence. I honestly don't know much about the situation in Catalonia or any of the details that led to the referendum. Having said that, it barely needs saying that the manner in which the Spanish authorities crushed a peaceful and democratic campaign was made all the more chilling by the obvious parallels with the Scottish independence movement.

Paul Mason erroneously blames Juncker and the centre-right EPP grouping.
 What's all this got to do with the EU?  Popular opinion seems to think that the EU is either directly to blame for the unfolding horror or that it should intervene with immediate condemnations and threats of expulsion. Paul Mason, for example, was quick to blame Juncker and the centre-right EPP grouping in the European Parliament. I'm not sure what any of that has to do with Spanish internal affairs but politics is a nasty affair and any stick that can be used to prop up Labour's flimsy EU story seems to be acceptable to Momentum supporters. More nuanced but equally incorrect views came from a much wider group of commentators who felt that their support for the UK's EU membership had been betrayed by the institutions and individuals that make up the EU. That feeling of genuine sadness that the EU had somehow sided with the Spanish government by remaining silent on the issue was so prevalent that I'd like to explore it in more detail. What could the EU actually have done? Who would have done it? Which institutions might be responsible for restoring order in Catalonia? I hope we'll have some answers to these questions at the end of the post.

Totally understandable but anger must be better directed.
Let's start by thinking about the powers of the EU. What power does it actually have? Well, it only has the powers given to it by member nations and by the European Parliament. If the EU wishes to make a statement about Spanish policing then it will only do so if the member states get together and agree on that. Even if that was to happen it certainly isn't going to happen quickly because the EU works by process and law rather than by knee-jerk political gestures.  In the event that member states  decide to collectively give the EU the power to make statements about Spanish policing it will be done only with witness statements, legal reports containing references to EU law, and consensual agreement. That all takes time and cannot happen today.  We really cannot expect the EU to coordinate the opinion of 28 nations in real-time.

Even with consensus that something should be done could the EU actually intervene in Spain's internal police procedures?  This doesn't typically happen but if it did we'd have seen it already with the UK at the receiving end of the complaint.  The tragic case of Ian Tomlinson springs to mind.  Ian Tomlinson was a newspaper seller who was unlawfully killed by a policeman during a student protest in 2009.  Not only was police management of the protest in question but the forensic evidence provided at the trial was troubling, to say the least.  If there was ever a case for the EU to intervene then this was it. They didn't intervene, however, because this is beyond the competence of the EU.  In fact, the EU is  constructed in a way that stops it interfering with the territorial integrity of member nations.  The "federal super-state" that Farage and The Daily Express endlessly complain about is a myth and no more than that.

Let's imagine for a second that the EU does have the power to make immediate and definitive statements on the internal affairs of member states. Who might actually make that statement? After all, such a statement would be made on behalf of the entire EU but it would need to be made without proper consultation of its members.  The simple truth is that nobody has that power.  Jean Claude Juncker, President of the EU Commission, certainly does not have that kind of power because his role is administrative rather than political. Guy Verhofstadt is able to speak for the European Parliament on matters relating to Brexit but only because he was democratically appointed to that position by MEPs.  He certainly does not have the authority to speak for the EP on any other issue. He can, of course, speak in a personal capacity. In fact, many MEPs have spoken out with personal condemnations of the events in Spain. Perhaps in time we'll see political groupings in the European Parliament speak out with formal statements but that will take time. For today, the most we can expect is personal statements from individual politicians. Have we seen that? Yes, we have.
Alyn Smith is a SNP MEP.
What can the EU actually do? Well, Article 7 of the Lisbon Treaty provides for the suspension of membership if the conditions of Article 2 have been breached.  It's not at all clear that Article 2 has been breached in the case of the Catalan referendum so suspension seems unlikely and certainly could never be immediately implemented. Again, let's imagine that Article 2 had been breached in some way or other. What could the EU actually do?  Article 7 is quite clear that action requires the consent of the European Council, whose membership is the heads of state of the member nations.  We can forget about the UK having any influence here because, in case you hadn't noticed, it is scheduled to leave the EU at 11pm on 31 March, 2019. Even if that hadn't been the case, what would the chances have been of Theresa May spending time on this and staking her limited political capital on it? I would guess quite close to zero because it only opens the UK to all sorts of counter charges. It is honestly not hard to think of dozens of cases where the UK has let human rights slip down its list of priorities.  That leaves the other 27 EU nations such as Germany and Denmark and, yes, Spain. Anger and attempts at forcing action should be directed at heads of state rather than the EU.

In the above, I imagined a scenario where Article 7 could be invoked due to a breach of Article 2.  The difficult here is that Article 2 has not been obviously breached.  Of course, Spain might carry on down this path to the point that the rule of law is suspended. Perhaps we'll see the court system dismantled so that investigations can no longer be carried out independently of political interference or perhaps a group of Francoists will seize power and reject the systems of democratic accountability.  EU membership would surely become untenable under those conditions but none of those things have actually happened. Despite the genuinely awful scenes, Spain is not yet a fascist state.

I'm not a lawyer or an expert in international affairs but it strikes me that this is a problem of human rights and therefore more suitable for the Council of Europe rather than any EU institution. All EU member states are members of the Council of Europe and are consequently expected to uphold the findings of the European Court of Human Rights. If a Spanish citizen feels that their human rights, as laid down in the European Convention of Human Rights, have been violated then it seems intuitive that their first port of call will be the Spanish court system, followed by ECtHR if they still feel that justice has not been served. We mustn't forget diplomacy, either. EU membership does not impede any member state from wielding the power of diplomacy, no matter what Paul Mason might think.  I'm quite sure that is going on because diplomacy literally never stops.  It's a great pity that this has been left to Boris Johnson because this is an area where, until recently, the UK had a deserved reputation.

The EU is a collection of national governments rather than a government itself; it acts methodically by process and law rather than gut reaction; it works by consensus rather than "strong" leadership; it is a sequence of institutions with specific competences rather than a unified structure of power. There is no single person at the helm. None of that might be what you want it to be but expecting it to be something that it isn't and then complaining about it isn't going to help the situation in Barcelona.  The truth is that understanding of the EU is so limited that it has all too easily become the default scapegoat of the left and the right.   The EU didn't do this, it was the Spanish governments.  We mustn't forget that simple fact.

Over and out,


PS The Council of Europe, the European Council, the Council of Ministers, the European Commission, the European Court of Human Rights, the Court of Justice of the EU.  I know it's a lot to take in but we have to get on top of this.  Ian Dunt is 100% right here:  they get you with the boring stuff.