By What Measure?

To suggest that the issue with the referendum specifically, and the Catalan government’s pursuit of independence from Spain more generally, is that it is not legal under Spanish law presumes that under Spanish law there exists some legal and democratic path to independence. But the Spanish constitution makes no such provisions for secession.

On Catalonia and the referendum

Photograph by Adolfo Lujan.

How did things in Catalonia end up the way they did? Under Francoism, the Spanish government committed itself to a shameful pattern of cultural and linguistic repression in Spain’s so-denominated “historical” communities—Galicia, the Basque Country, and Catalonia. The peaceful constitution (in both senses of the word) of post-dictatorial Spain depends in large part on the restoration (or concession) of a significant measure of autonomy to those same communities. But the response to Catalonia’s October 1 independence referendum suggests a crisis for the status quo.

From a merely “cosmetic” perspective—to borrow a turn of the phrase from our own current President—the footage was horrific: military and federal police forces decked out in riot gear breaking down the doors at polling places, clashing openly with members of the Catalan Mossos d’Esquadra, dragging voters and protesters by their hair and ears, beating them to the ground with their truncheons and then continuing to beat them after they’d fallen, breaking fingers, leaving children and elderly people bleeding and in tears. These events aren’t just embarrassing domestically: for a Spanish government hoping to keep its European allies lined up against the idea of Catalan secession, the violence can’t help but weaken its bargaining position.

But the whole lamentable mess—all the clubs and shattered glass and the approximately 900 injured—wasn’t unforeseeable. In October 2015, following the previous month’s electoral victory of the pro-independence alliance Junts pel Sí, the Catalan parliament set into motion an “hoja de ruta,” or roadmap, to independence, agreed upon by the alliance’s constitutive parties the previous month. In October 2016, in line with that original plan, a parliamentary resolution was passed calling for a binding and binary independence referendum to be convened no later than September 2017, followed by an immediate or virtually immediate declaration of independence in the (expected) case of a Yes victory.

The Spanish central government’s response to these circumstances was, for a long time, denial. Time and again, Spanish president Mariano Rajoy, leader of the ruling Partido Popular (a political party itself constructed from the legislative remnants of Francoism), stood there blinking through his rimless eyeglasses and declared that there would be no referendum.1 The referendum-day violence, then, can be understood as a mere extension of that attitude of denial from something that could happen to something that was, in fact, happening. And as “it won’t happen” began to transform into “it sure appears to be happening,” the Spanish government opted to criminalize the whole affair, sending in the military and federal police to conduct raids on the warehouses where ballots and ballot boxes had been stored. Less than a week before the referendum was scheduled to be held, the police arrested fourteen middle and high-ranking government officials for their involvement in its organization. Those who turned out to vote, to manage precincts, to collect and count ballots, were treated as dangerous criminals by the military and militarized police.

The Spanish government’s lengthy refusal to engage even rhetorically with the referendum—and its subsequent criminalization of it—were predicated on its unconstitutionality. And, thanks to various court rulings on the subject, its illegality. For months, El País, the newspaper of record of constitutional Spain, has described the Catalan referendum as “el referéndum ilegal” or “el referéndum independentista ilegal,” as though the one concept were literally unthinkable without the other. The problems with this approach are obvious. Under the Spanish constitution, and as confirmed by Spain’s highest court, calling the referendum, organizing the referendum, and voting in the referendum may have been illegal, but these actions were no more criminal than sitting at the front of the bus when the law dictates that you sit in the back. Arresting people for trying to organize a vote and bludgeoning people trying to vote doesn’t look to very many people like a democratically elected government fulfilling its obligation to protect its citizens. It looks instead like violent political repression, which is, of course, exactly what it was.

Yet the more fundamental problem is disingenuousness. To suggest that the issue with the referendum specifically, and the Catalan government’s pursuit of independence from Spain more generally, is that it is not legal under Spanish law presumes that under Spanish law there exists some legal and democratic path to independence. But the Spanish constitution makes no such provisions for secession. Under Spanish law, and under the Spanish constitution, illegality is effectively built into the pursuit of independence as such and so cannot, on its own, provide grounds for disqualifying this or that particular such pursuit.

The pertinent question, then, is whether Catalonia can stake a legitimate claim to the kind of basic human right—in this case, the right to self-determination—that, in transcending every law, answers to none. A manifesto published on September 26 with the signatures of 400 of the approximately 550 members of the Spanish Association of International Law and International Relations contended that it cannot. Per UN charter and established international jurisprudence, the manifesto argued, except in circumstances of colonization this right can only be claimed by people subject to “alien subjugation, domination and exploitation,” including linguistic, religious, cultural, or political repression.

In its reporting on the manifesto, El País understandably emphasized that a significant majority of Spain’s professors of international law and international relations (including, it did not go unnoted, fifty currently working at Catalan universities) agreed with the argument presented in the manifesto. Yet it is no less significant that over a quarter of Spain’s professors of international law and international relations evidently did not. One can’t help but wonder how many of those original 400 signatories might see things differently following the Spanish government’s violence this past weekend. Still, it would represent the height of political cynicism to grant that Catalonia has cleared the bar for claiming the right to self-determination as a result of the Spanish government’s violent and repressive response to a referendum predicated on the claim that Catalonia had already cleared that bar. To do so would index the right to self-determination not to extant conditions of oppression—but to the ability to provoke new ones.

Questions about the legitimacy of Catalonia’s case for independence, therefore, should be remitted to at least 2015 when, in view of an expected electoral victory that September, the Junts pel Sí alliance presented its official “hoja de ruta” for a journey the destination of which was determined in advance. And from that perspective, the case seems a far less certain one. It is true that Catalonia pays more money in taxes to the Spanish government than it receives in return (and no less true that not all of this unreturned tax money is, as the Spanish government claims, redistributed to Spain’s needier communities). But it is also true that Catalonia is an extremely wealthy community with many exceedingly wealthy individuals (many of them current and former Catalan government officials, and many of them suspected of or charged with corruption of fraud). Whatever problems Catalonia may have with social and economic inequities owe as much to the disproportionate distribution of that wealth (when not the outright pillaging of it) by the Catalan government as to its partial appropriation by the even more deeply corrupt central government in Madrid. This is not, in other words, a straightforward case of exploitation.

Claims of subjugation and domination, meanwhile, stand on still shakier ground. The current independence movement began to take shape in response to a 2010 ruling by Spain’s highest court, which nullified several articles in the Catalan Estatut of 2006 and emptied the word “nation,” as employed in the new Estatut’s preamble, of any legal significance. Yet that legal setback must be weighed against the ascent, in recent years, of the Catalan language and Catalan identity more broadly. Forced into the dark corners of domesticity during Francoism, Catalan has in the decades since the end of the dictatorship successfully been restored as the language of education, politics, business, and public life in Catalonia. And Catalan identity—ineffable but palpable—has only been consolidated and fortified over the same period of time. Neither trend was reversed by the Spanish high court’s 2010 revision of the Estatut, making it difficult to accuse it of imposing the conditions of subjugation, domination, or repression.

As usual, the telling position is the leftist one. For the left-wing factions of the Junts pel Sí alliance, the real agent of the Catalan people’s subjugation and exploitation isn’t even the Spanish state—it’s capital. Their deal with the conservative factions of the alliance is predicated not on a shared commitment to the kind of country that should exist after independence, but rather on the conviction that a small and newly independent Catalonia would make a better candidate for genuinely progressive reform than a clunky old country like Spain. Though the leftists support independence, their stance gives the lie to the notion that Catalonia’s recent struggles with unemployment and widening economic equality are the result of its exploitation by a repressive Spanish state. These problems are systemic, even if the Spanish government hasn’t helped.

But perhaps the question of legitimacy is the wrong one to ask. After all, our traditional standards for self-determination—the UN charter, international jurisprudence—merely reflect the centrality of territorial integrity in the post–World War II model. Transnational military alliances and international security networks forged to protect that territorial integrity have created the semi-porous borders necessary for the globalization of capital—a process that in turn nullifies the us-or-them logic on the basis of which the ruling class of one nation might decide to supplant that of another via invasion. The ongoing fiasco in Catalonia is just another painful reminder that, chased down by the dogs of economic inequity and environmental catastrophe, this model—this strategy for managing the world—has reached its expiration date. In assessing whether a semi-autonomous region with a unique national identity like Catalonia can legitimately stake a claim to an extralegal right to self-determination, we would be well served to consider whether, in view of our as yet unwritten collective future, we should look toward more flexible and situated notions of sovereignty and statehood. These visions might offer not only a happier alternative, but even a necessary antidote, to the retreat into zero-sum ethnonationalism our own President has proposed.

  1. Rajoy’s because-I-said-so conviction calls to mind President Trump’s tweets about how North Korea would not develop a nuclear weapon capable of reaching parts of the United States. The snide confidence of Western leaders seems, with every passing day, more and more ridiculous. 

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