Legal aspects between Spain and Catalonia cannot be solved by railroading them through

Serious conciliation negotiations are now indispensable

The conflict between the Spanish central government and the regional government of the Autonomous Community of Catalonia is endless. Both sides refer to legal positions, both governments are supported by a large number of citizens. Both sides argue historically, politically and economically. The international discussion about the problem is divided. It threatens an escalation that can cost many victims. Already many things have fallen out of joint. Nearly 1,000 injured are to be lamented. This is reason enough to get a clearer picture of the fundamental problem and to look for solutions.

km. On 4 October 2017, the broadcaster RT Deutsch interviewed1 the emeritus criminal lawyer and legal philosopher Prof Dr Reinhard Merkel and asked questions about the state and international law. The statements of the scientist from the University of Hamburg are of particular interest because they do not take sides for one of the parties involved but focus on the clarification of legal issues. Without losing sight of the political dimensions and an appropriate way to a solution, the honest dialogue.

The referendum was not legal in terms of constitutional law

At the beginning of the interview, Professor Merkel describes the position of the Spanish central government that the referendum of 1 October would be “illegal” according to the Spanish constitution as “legally correct”: “Like most of the constitutions of the world, the Spanish also does not allow one-sided secession of a part of the population, that is, no breaking up of its own territory. The states are, in the doctrine of international law, as it is sometimes casually phrased, no club of suicidals. And there are a number of good reasons for this – from the defense of manifest economic damage, regularly associated with such a separation of territories for the rest of the population of the central state, to the avoidance of the risk of internal and external instability, also usually associated with it.”
If the government of Catalonia nevertheless declares independence, Merkel expects little international support through recognition: “There will not be such recognition, not only because secession is unconstitutional under Spanish law, but also because the states would not allow any international precedents for successful secessions. After all, they could also be affected by it.”

The complex view of international law

According to international law, a declaration of independence can scarcely be justified: ”Since the states have a considerable interest in the avoidance of secessions, and since they are also the norm grantors of international law, there is rather no international cover for such things.” But Merkel restricts: “However, there are two important limitations to this principle. First, there is no explicit prohibition of secessions in international law. Establishing such a ban would be difficult because international law is primarily a legal system between states. For this reason, individual sections of the population within a state are fundamentally not suitable subjects of international law – and therefore no plausible addressees for prohibitions under international law (apart from the universal prohibition of committing crimes under international law). Secondly, the powerful states of the world have sometimes accepted such precedents for secessions, especially when the mother state concerned was not acceptable to them for political reasons.” Indeed: “The most recent and most striking example is the immediate recognition of the one-sided separation of Kosovo from Serbia in 2008, which, incidentally, did not have any previous referendum, so it did not have any democratic cover. All major western states, including Germany, have recognised this secession within a few days.” Merkel also adds: “This was contrary to international law.” – Despite an opinion from the International Court of Justice for the UN General Assembly.

Political opportunism bends the law

In another example, Merkel makes clear that political instances are based on political opportunism rather than legal aspects. So would “the West, as is well known, have forgotten its sympathies for secession in the case of Kosovo six years later, in the case of the Crimea and the Eastern Ukraine. Even in this inconsistent attitude one can see that secessions are unfortunately still primarily a matter of sheer power and interest policy, and less an object of legal principles.”
“The causa Kosovo,” Merkel said, “thus tarnishes the otherwise clear interpretation of international secession law. There are, however, good reasons for not accepting unilateral and conflicting secessions, such as those now undertaken in Catalonia, also in future under international law and not to recognise new state-like structures that have arisen on this path alone.”

Central government must take the striving of the Catalans for independence seriously

Merkel, on the other hand, scrutinizes the central government’s action against the referendum of the Catalans: “Whether one must reject the referendum as such, as a simple public opinion poll, is another question. And here interesting additional points come into play. The result of the referendum makes it clear that the Catalans will maintain their striving for independence. If they therefore begin to implement this politically, if they de facto take over administrative, police and, above all, fiscal sovereignty, then the central government in Madrid seems to be left with only a military intervention to prevent the illegal seizure. Because of the eminent danger of a civil war which that would evoke, this would no longer be acceptable, even under aspects of international law.”

No military violence against independence movement

In this context, Merkel draws attention to an interesting case from Canada: “There is a highly noteworthy verdict of the Canadian Supreme Court from 1998 on Quebec’s secession aspirations, been holding back by Canada for decades. In this, the court initially denies Quebecs’ claim to unilateral secession, but on the other hand obliges the central government to enter into an open dialogue with their representatives in the event of the establishment of a clear majority of the population in the secession region. Such a dialogue should not exclude a corresponding amendment of the Constitution from the outset. In any event, the immediate use of military force by the central government was inadmissible. The decision suggests that a secession must be accepted in the end if the sole means of its prevention is the application of civil-war-like violence. I think that’s right.”
With regard to Catalonia, this means: “I am afraid that the events in Catalonia could ultimately lead to this problem. Then the concerned parties, including the EU, would be well advised to look closely at the deliberations of the Canadian Supreme Court. In any case, a halfway neutral negotiator will be needed for the negotiations now necessary.”

EU is not a suitable intermediary

Merkel doubts whether the EU is suitable for such a mediation. It was partisan. “Maybe there is a way to turn the United Nations.” Merkel, however, does not plead for an independent Catalonia: “It is hoped that the Catalans will accept reason before this last step and abandon their efforts, which is also politically and ethically difficult.” But he also calls on the Spanish central government: “Madrid, on the other hand, should offer more extensive concessions than before in aspects of Catalan autonomy. [...] Both parties should now engage in serious conciliation negotiations, in accordance with the spirit of the Canadian judicial review of 1998.”

Federal order: self-determination within a state

The Catalans must, however, know that they have no right to independence: “Of course they can exercise all the democratic possibilities of the formation and articulation of their collective will. But they do not have a right to state independence. True, like all peoples, they have a ‘right to self-determination’ under Article 1 (2) of the UN Charter. One can even leave open the difficult question of whether they can demand it only as part of the Spanish people or even as a Catalan nation. For ‘self-determination’ within the meaning of the UN Charter does not mean a right to a state of its own. It means that all groups which can plausibly assert their own identity of cultural, ethnic, religious or other kind have a right to free participation of their own community in the various forms of democratic participation – but only in the legal and geographical boundaries of the legitimate state to which they belong. To this extent, one must therefore distinguish between an ‘inner’ self-determination, namely, a state-internal from an ‘outer’ self-determination, namely as a souvereign state of its own. There is a genuine right for ethnic and other groups living in an orderly state only  to the first-named, state-internal (participative) self-determination. Only if they are permanently suppressed as a group by the majority in the mother state they can sometime acquire a right to secession.”
Isn’t that a good argument to think more intensely in the direction of a federal state structure?     •

1 of 4 October 2017