On Monday, October 1, 2018, over 180,000 demonstrators marched in Barcelona to mark the one-year anniversary of Catalonia’s fiercely contested 2017 referendum on independence from Spain. Ninety percent of voters in that referendum backed Catalan independence. However, the Spanish Constitutional Court suspended the referendum before it was held, and anti-independence voters largely abstained from the ballot. The referendum’s reported turnout was only 43 percent. In the subsequent weeks, the government in Madrid responded to Catalonia’s symbolic declaration of independence (on October 17, 2017) by triggering Article 155 of the Spanish Constitution and moving to suspend Catalan autonomy.
Legal questions emerge and remain largely unanswered in the aftermath of the Catalonian independence referendum
The resulting constitutional crisis, considered to be Spain’s “largest political crisis since it began its transition to democracy in 1975,” has seen nine Catalan leaders held—with debatable legality—in pretrial detention. Several other Catalan civic leaders remain in a state of self-imposed exile. The chaotic state of political affairs surrounding Catalan independence since October of 2017 has raised a number of legal questions and presented some concerning answers, or lack thereof.
For instance, have argued that Madrid was guilty of using the European arrest warrant as a tool of political oppression in its attempted extradition of Clara Ponsatí, a Catalan academic and the former head of Scotland’s University of St Andrews’ School of Economics and Finance, on charges of rebellion and misuse of public funds. Spain eventually withdrew the arrest warrant on its own. However, it took a ruling from a German Court to declare that Carles Puigdemont, the former Catalan president, could not be extradited from Germany to Spain to face trial for rebellion. In addition to (and indeed, despite) these concerning developments, Amnesty International has refrained from using the term “political prisoners” to describe the detained Catalan leaders, noting that the term has no generally accepted definition in international law.
Perhaps most dramatically, the Spanish government has repeatedly blocked Catalan officials’ attempts to elect jailed or exiled Catalan leaders to office in the regional government. For example, the current Catalan president, Quim Torra, attempted to name two jailed former ministers and two former leaders in exile to his regional government. Despite pressure from the U.N. Human Rights Committee to honor the political rights of the detainees to stand as candidates for or hold elected office, Madrid refused Torra’s choices, which it labeled a “provocation.”
The legal landscape moving forward is bleak for pro-independence advocates
Because the Spanish Constitution declares “the Spanish people” its subject of sovereignty and establishes itself as “based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards” (CE 1978: art. 2), the Spanish Constitutional Court’s since 2008 appears to preclude independence referendums by autonomous communities, such as Catalonia. The Court has unanimously determined that any popular consultation affecting the Spanish people as a whole would require reform to the Constitution. Because any regional independence referendum concerns all Spaniards’ rights to self-determination vis-a-vis the Madrid government and the autonomous communities, the Court is unlikely to permit Catalonia to hold a “legal” independence referendum in the future. Such a referendum, writes Javier Garcia Oliva, “would have implications for the collective consensus on where political sovereignty actually lies within the Spanish State, and so would profoundly affect all Spaniards.”
At this time, a constitutionally valid referendum on Catalan independence would require:
- Invoking Article 150.2 of Spain’s Constitution, the government could transfer the competence to hold a consultative and non-binding referendum on Catalan regional independence to the Catalan government. An affirmative vote for independence would then be politically, but not legally, binding.
- Holding a consultative referendum pursuant to Art. 92 of the Constitution, which allows “especially significant political decisions” to be submitted to referendum.
Both of these courses of action necessitate political cooperation between Barcelona and Madrid.
In the realm of international law, it could take years for the European Court of Human Rights to determine the legality of the pretrial detentions of the deposed Catalan leaders. European Union member states are also unlikely to recognize would-be breakaway states’, such as Catalonia, right to self-determination (a core principle of international law that is protected by the United Nations Charter) when to do so would entail accepting the risk of an entirely redefined European Union membership.
Politics and the path ahead
For pro-independence Catalans still dedicated to the cause over a year after October 1, 2017—of which there are many—the best options moving forward are largely political. Most promisingly, with the minority government in Madrid dependent for its survival upon support from the Spanish parliament’s pro-independence caucus, it seems likely that further negotiations between Barcelona and Madrid will result in stronger regional control of Catalonia as soon as next month.