No Pasarán? The Politics, Law, and Morality of the Catalan Independence Referendum

No Pasarán? The Politics, Law, and Morality of the Catalan Independence Referendum

This Sunday, the regional government of Catalonia will attempt to hold a referendum on independence from Spain, and if successful declare it within forty-eight hours. The Spanish Prime Minister has vowed to stop the proceedings, and the Spanish Constitutional Court has declared their invalidity. Why is this strange event taking place, and what are the implications for European and international politics? This analysis shall survey the particularities of Catalan political history and constitutional law before entertaining the larger question of the morality of such an initiative.

The Federal Republic of Germany (1949-), the Swiss Confederation (1999-), the United States of America (1789-), and the Kingdom of Spain (1978-) are federal units constructed out of smaller pieces, and each has long struggled to preserve the loyalty and camaraderie of their various parts. In Spain, the Basque region comprehending Bilbao and Guernica has long sought autonomy or independence, with terrorism and political violence unfortunately commonplace for many years. In Catalonia and in its capital Barcelona, however, there developed during the Spanish Civil War (1936-39) a left-anarchist movement unique in political history. As George Orwell memorably records in Homage to Catalonia (1938), its comrades acknowledged no government yet called forth militias to fight the fascist hosts under the battle cry of no pasarán! (they shall not pass!). Tragically, the fascists under General Franco did pass, and upon their final victory proceeded to obliterate the Spanish Left.

Politically, therefore, the inhabitants of Catalonia have prided themselves on a distinctive left-libertarian-anarchism reaching back to the Spanish Civil War. Although speculation is hazardous, a perceived triumph of “fascism” in the United States, combined with a right-wing government in Madrid and ongoing disorders within the European Union have probably contributed to the contemporary revival of this longstanding narrative.

Second, one should give attention to the legal dimension. Spanish constitutional law is possibly the most arduous, abstruse, and inaccessible in all of international politics. The inability of the people and possibly even of the parliament (Generalitat) of Catalonia to properly comprehend their constitutional rights and duties has doubtless contributed to the mutual misunderstandings at the heart of the present crisis. Spain is composed of seventeen autonomous communities (comunidades autónomas) which are each governed by constitutional instruments known as organic laws (leyes orgánicas). These laws are of interminable length and fatiguing detail, with that of Catalonia (6/2006) running to more than two hundred articles and comprehending the appropriate operation of topics as diverse as affirmative action for Gypsies (42.7), road safety (48.2), or agriculture and forestry (116). The Catalan people as a whole almost certainly have little to no knowledge of their arcane constitutional laws, which in any case make no provision for declaring independence.

The national constitution (2011 [1978]), meanwhile, pledges all Spaniards to protect and defend their country (30.1), and endows the Constitutional Court (159-65) with final authority to interpret the Spanish Constitution. There is no referendum procedure, as in Switzerland, and it is everywhere understood that the autonomous communities will abide by the constitution. There is therefore no question that the Catalan nationalists are attempting an unconstitutional and illegal act.

But does that necessarily make their sedition morally wrong? The (Spanish) Left has always extolled “self-determination,” yet for whom, at what level, on what basis, and at what cost is seldom if ever explained. More importantly, no rigorous and consistent distinction can be drawn between commonwealths which have an inalienable right to maintain their present territorial integrity and those which do not. All states within international politics perpetrated grave injustice in their origination, and all rely upon some measure of violent coercion for their preservation. Careful historical reconstruction of events generally dismantles any artificial distinction between “unifying” British, American, Italian, or in this case Spanish nationalism and “divisive” Scottish, Southern, Tridentine, or Catalan forms: the “official” or “approved” nationalism is usually just that of the group that won.

Nor is there a single established view, within either Christian or secular thought, with regard to how at least the leaders of such a secessionist movement ought to be treated. For a political realist in the tradition of Thomas Hobbes or his disciple Carl Schmitt, a willful insurrection against the authority of the state is the greatest human crime, deserving of if not demanding death. Although, it is usually only the dictatorships who treat their rebels with such severity. In contrast, the Kantian collectivism that shapes liberal approaches to international relations would affirm that such disputes can somehow be continually negotiated.

Crucial for this author, however, is the essential distinction between dictatorship and democracy, and the fundamental obligation democratic publics have to—in all but the most extreme cases—abide by the laws of regimes which acknowledge their dignity, provide for their existence, and permit their participation through representative organs, even if their form varies considerably by country. Ambassador Kennan, during his personal standoff with student rebels of the late 1960s, remarked, “It seems to me that the citizen who lives under a system that assures him not only voting rights but extensive guarantees for the inviolability of his person and property, and who accepts the protection of the state in the enjoyment of these rights, owes to the state at least a high measure of respect and forbearance in those instances where he may not find himself in agreement with its policies.”

No one at this point can say with any certainty how Madrid, Brussels, or Washington will respond to a potential “yes” vote next week, and hopefully the dispute can be resolved without violence. Yet unlike the 1930s, fascism is not on the verge of coming to power in Spain, and therefore the renewed sedition of Catalonia must not meet with our approbation.

Mark R. Royce, Ph.D., teaches political science at George Mason University and NVCC Annandale and is author of the forthcoming Political Theology of European Integration: Comparing the Influence of Religious Histories on European Policies, which probes the religious ideas behind EU politics. He has written for The European LegacyInternational & Comparative Law Quarterly, and the Journal of Church & State.

Photo Credit: Street protests in Barcelona on September 20 after the Spanish police detained Catalan government officials during operations against the October 1 Independence Referendum. Photo by Toshiko Sakurai, via Flickr.

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