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.



  1. Nobody round the pub wants to talk about Spain. Unfortunately they don't want to talk about Scotland either. I think my world is being taken over by the mythical head burying ostriches.

    Good, informative piece, by the way, but it is clear that damage is being done to the Scotland in Europe case, which is delighting the Brexiteers.

    Few are interested in the complexities.

    1. Glad to see you back!

      This is indeed a very complex and charged issue that ultimately boils down to Spain needing to change its constitution.

      btw what do they talk about round your pub?

    2. Usually discussion is quite wide ranging, and opinions freely exchanged, but there seems to be an air of weary resignation and unwillingness to tackle anything difficult or complex at present. There are also numpties.

      As you have seemed to notice, I've been away - in Istria, Northern Croatia, where I experienced more interest in the UK and Scottish differences over the EU than I am finding in the East Neuk at present, where fitba and local scandal seem to predominate. This has not always been the case. Are people just fed up or are they actually scared? I hope it is the latter.

      By the way, i find Serbo-Croat pretty much impossible.... luckily history has left a bilingual Hrvastka / Italian language culture in Istria and quite a lot of English too.

      I really hope interest in Scottish independence can be reignited, but fear that the situation in Spain is just making people here more frightened.

      Hope I'm wrong.

  2. Interesting stuff, Terry, and a good contribution to the knowledge base surrounding this stuff. It is a shame that those with limited intellect decide to condemn you without attempting to understand you. I have wondered if you were overly focused on the legal arguments and ignoring the justice & democratic aspect of the Catalonian situation but that in no way negates the accuracy of what you write. The only thing I would take exception to, and maybe unfairly because I could be misinterpreting your words, is the bit about Rajoy being a facist; he is. Which is not to say that the Spanish constitution or laws are themselves facist but the use of force by the Guardia Civil pretty much conforms to the act of a facist, totalotarian or autocratic state (take your pick). Craig Murray's latest article has a bit about Rajoy and post-Franco facism which is worth bearing in mind.

    1. Thanks!

      I don't meant to come across as a Rajoy apologist or anything like that but I think accusations of fascism are far off the mark. When Hitler took power he tore up the constitution and the electoral system and ignored any international obligations that he considered to his disadvantage. Rajoy isn't doing any of that. If anything, he is proving to be too much a stickler for the constitution, law and process. His lack of pragmatism, diplomacy, political skill and imagination is the root of the problem. This is a constitutional problem, after all.

      I believe we need to separate the actions of individual police officers from the government itself. I'm not aware of any evidence that the government ordered the disproportionate use of force. That would be very worrying, if true. In democracies it is left to the independent judiciary to make a ruling on the behaviour of police officers. I'm not aware that the independent judiciary is being suspended in Spain. Also, Spain has a good track record of compliance with rulings from the ECtHR.

    2. I don't think you are an apologist for Rajoy (nor opposed to Catalonian's democratically expressed views) simply doing your utmost to add clarity to the legal arguments surrounding the situation.

      I think a better interpretation of what Hitler did was change the constitution and electoral system of Germany to better suit his own ends. Rule of Law was a Very Big Thing in Nazi Germany (watch the excellent, but chilling, film 'Conspiracy (2001) for a flavour of what I mean). It could be argued that current Spanish laws already favour the fascist-lite version that Rajoy wishes to practice so there is not need for him to change anything. (Yet?) The Spanish constitution was drafted in the immediate aftermath of Franco's death (while he was still in power) and reflects what the military governors (all Francoists if you prefer not to use the term fascist) would accept in return for allowing democracy to return to Spain. Rajoy joined the political party closely aligned to the Francoist ideals in 1979 so it is hard to argue he is not a Francoist and therefore at least a closet fascist who now appears to be showing his true colours.

      Hitler also ignored the punitive international obligations forced on Germany post WWI but Spain is not facing such conditions so has nothing to ignore. If anything, Spain is receiving support from the international community so that does not prove their actions are not fascist-like.

      At what point does a state become fascist? Only when concentration camps appear or is there a point earlier on when state force is applied to thwart any democratic movement that opposes the vision of the state held by the current government? But maybe you are right, maybe fascist is the wrong term. How about totalitarian instead?

      As to the actions of the police; speaking as a former police officer (albeit a Scottish one) those were not the actions of individual officers, those were the actions of officers ordered - or at the very least tacitly encouraged by their senior officers - to behave in such a manner. If they weren't then the complete lack of condemnation of the officers by Madrid says all you need to know about the attitude of the Spanish government and courts (which are not as independent from political influence as they are in many other countries).

      If a government does not control its police force (and military) then that is a very dangerous situation indeed and it is one of the hallmarks of fascists states that the police and military have and wield strong political power. Is the para-military tail wagging the political dog in Spain, or the other way around? The reports I have read about statements made by Guardia Civil about the Catalans make it very clear that that organisation has a political view on the situation and not simply a concern with keeping law and order. I cannot imagine a situation where any UK police force would voice some of the things I have read coming from GS. Here, at least, the police exist to keep the peace. In Spain, the GS exist to keep order and are permitted (if not directly ordered) to use considerable violence to do so by their political masters.

    3. To be honest, I'm uncomfortable talking about fascism. I'm even uncomfortable using totalitarian as a description. These are emotional words, highly charged. This blog isn't really about that - there are plenty of alternatives. My view is that we ought not to be ratcheting up the tension in a situation where we will not have to live with the consequences and probably don't have a complete understanding of what is actually going on.

      I'm extremely concerned that all of these tense claims of fascism are going to be imported to the next Scottish indyref. I'm concerned that all the support for UDI in Catalonia will be imported, too. I'm concerned that the unrest we see in Catalonia will turn up in Edinburgh or Glasgow. To be perfectly honest, if that's going to happen then I'd happily abandon the whole thing. It's not worth any of that. For that reason, I'm going to personally refrain from assessing the situation in Catalonia with charged language.

      This is one of those situations where we will have to agree to disagree. I'm sure it won't be the first or last time but that is exactly what this blog is about.

  3. Thanks for your painstaking work on this, it is, whilst hard to take, invaluable in knowing how to express any support for a way forward. If you don't already, you might be interested in reading Lalland Peat Worrier's take on this, which, as far as I can tell, supports yours:

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  5. As far as I understand the situation, the really difficult thing to grasp is that there doesn't seem to be any legal way for the Catalans to achieve independence, unless the Spanish state grants it (or the right to formally ask for it) freely. Is the issue perhaps that the applicable laws don't apply in this circumstance because it's not one that has been encountered thus far, or was thought about. It seems to a layman that allowing the Catalans to determine their own political arrangements is certainly in keeping with the spirit of the law on self-determination, just that no-one (and no court judgement) has considered the particular circumstances of this impasse.

    1. As I understand it, the only way forward is for Spain to change its constitution. That will take some years, even assuming that a will exists in Spain for that to happen.

      The Spanish constitution was adopted after a referendum. It had a 91% approval in Spain but a 95% in Catalonia. It's clear that nobody thought about the unique set of circumstance that has occurred today. That's the problem.

      This isn't just something for Catalonia alone, the way it was at the Scot indyref. This will require all of Spain to make a decision on constitutional change. When I was researching this I looked at Switzerland's constitution. Any change to a cantonal boundary requires majority approval of the whole of Switzerland, not just the cantons involved. Cantonal boundary change is much weaker than secession yet it still requires everyone to agree. It's almost as if the constitution is trying to make it hard to upset the status quo. The more I find out about this, the more I realise the status quo is a protected position. There are good reasons for that, of course, but it also has downsides. Everything comes with trade-offs.


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