The current impasse between the Central government in Spain and the regional government in Catalonia could and should have been avoided.
Catalan flags fly in support of independence during protests. Flickr/Beverly Yuen Thompson
Was the Referendum Legal?
If the only issues at play were the legality of the Catalan government’s referendum and its declaration of independence, it is clear that the rule of law and the Spanish Constitution should be upheld and that the referendum was not legal. Those in favour of Catalonia’s independence have neither Spanish national law nor international law on their side to support a claim for independence. The Spanish Constitution is clear that secession by a Spanish region is not permitted. Moreover, Catalonia’s place within Spain does not constitute a colonial relationship and the Central government’s treatment of Catalonians did not involve a suppression of human or political rights that would justify a claim for independence under the Charter of the United Nations.
The claims by the former President of Catalonia, Carles Puigdemont, that the historical record dating back to the Catalan Kingdom of the 18th century and the restrictions imposed on Catalonia by the Franco regime during Spain’s civil war and after, supported a claim for independence also were insufficient to justify his government’s actions.
Finally, in neither the most recent referendum nor the previous one did a majority of Catalonians vote in favour of independence. Even if the most recent voting exercise could have been monitored and validated - and it was not - the most generous analysis suggested that only 90% of 40% of Catalonians voted in favour of separation.
Does the international community support the Catalonian government’s claim to independence?
Former President Puigdemont was either disingenuous or dishonest when he claimed to me and to other diplomats in 2016 that the international community, including the EU, NATO, the UN, would support Catalonia’s independence soon after it was declared.
First, Spain would not vote in favour of Catalonia’s accession to any of the international organizations mentioned. The EU, for example, requires unanimous consent of all existing member states to admit new members. We should also recall that Spain is one of only four countries that refuses to recognize Kosovo’s independence. The real justification for this refusal has little to do with the merits of the case.
Second, as has been demonstrated by the number of EU leaders who have spoken out against the Catalonian government’s actions, neither the EU as an institution nor the vast majority of individual EU member states, are interested in encouraging provinces, states or any other regional entities to break away from their mother countries.
All that said, there were many opportunities for more dialogue between the Central government in Madrid and the government in Catalonia that have been missed. Had they been undertaken, the current impasse might have been avoided.
The Central government’s response to date
From the time that I served in Spain (2012-16) to today, virtually the only response from Madrid and the ruling Partido Popular (PP) to concerns raised in Catalonia has been “no, no, and no” and the raising of the Spanish Constitution.
This response, while defensible from a purely constitutional perspective, was both overly legalistic and politically rigid. But for the ruling PP and, in particular its right of center base, it was also a popular response.
Not only had President Rajoy refused to open negotiations or even discussions with Catalonia, his government, until some weeks ago, had refused to entertain even a discussion of how the Spanish Constitution might be modified to address some of the concerns of Catalonia and other regions.
A perspective that the Government seems to fail to understand is that while the rule of law and the constitution must be defended, a narrow legal approach is not effective, either in managing Catalonia’s concerns or in offering a successful public narrative. When the Government is reproached for not engaging sufficiently in ‘politics’, they seem to take the criticism as an expectation that they need to make concessions. Rather, the issue is about a broader discourse, a positive appeal to Catalan society about the value of being part of Spain and Spanish citizenship, and a more positive vision of the future, instead of single-minded insistence on the law.
The use of force by the National police on the day of the referendum was a public relations and political coup for then President Puigdemont and for those supporting independence. The violence, while real, was exaggerated by the media and there have been suggestions that the Catalan government may have manipulated some of the coverage to increase support for their cause. While those events were not enough to sway EU politicians to the Catalonian cause, they did succeed in sullying Spain’s and the PP’s reputation in Catalonia and abroad. The subsequent arrests of the head of Catalonia’s Mossos (the local Catalonian police force), the leaders of two Catalonian civil society organizations and other government leaders for alleged sedition, and the harshness of the possible sentences - up to 30 years - may only serve to move some fence-sitters and some “no” voters in Catalonia into the “yes” camp.
In my view, some of Catalonia’s concerns are valid and should be addressed. This includes grievances that stem directly from the manner in which Spain’s Constitutional Court overturned certain measures giving Catalonia greater autonomy. These measures had been approved in a regional referendum and agreed to by the previous Socialist government.
Moreover, members of the business and legal communities with whom I met in Catalonia - even though opposed to calls for independence - were of the view that Madrid had somehow short-changed Catalonia. They suggested that the Center had transferred fewer infrastructure funds to Catalonia in comparison with other regions, had unfairly re-distributed government tax revenues (collected in part in Catalonia) and had failed to recognize the Catalonian peoples’ distinct culture, language, identity and history. Others seemed to want only a demonstration of carino (endearment) and a sense from the Center that some of Catalonia’s concerns were real, even if not all could be addressed.
As a result of Madrid’s perceived intransigence, those opposed to independence in Catalonia had no arguments or offers from the Central government that they could use to respond to those in favour of independence.
It should be said that by the time the Puigdemont government had won power, offers to discuss, negotiate or compromise may not have been reciprocated. Puigdemont is an ideologue for the cause of independence. His predecessor, Artur Mas, was more pragmatic and more willing, at least initially, to make a deal.
On the positive front, except for the actions of the National Police on the day of the referendum, there has been no violence in Catalonia. This is in contrast to events that have occurred during past conflicts of this nature in the Basque Country, Northern Ireland and Quebec. Second, the decision by the Rajoy Government to call early regional elections was the right one. It appears to have let some of the air out of the conflict and it could pave the way for future conversations. Unfortunately, however, some of the economic damage to Catalonia has already been done. To date, more that 1200 companies once headquartered in Catalonia have moved to other regions.
On a separate but related issue, my view is that referenda, whether legally constituted as in Brexit, Scotland and Quebec, or Catalonia’s extra-legal effort, are very blunt instruments with which to try to take such far-reaching decisions.
As we have seen in Quebec, during the Brexit campaign and in Catalonia, one side or the other may over promise, hide likely outcomes, lie, and generally engage in whatever narrative is likely to help advance the cause. Quebecers refused to explain what might happen in the event that following a decision to separate, Quebec did not have access to the Canadian dollar, to NAFTA, or to protection by the Canadian military. The pro Brexit folks lied about the UK’s current costs of membership in the EU and the extra money that would be available to UK citizens if the UK exited the Union. They also downplayed significantly the negative consequences of leaving the Union. The same has been true in Spain.
Moreover, unless the results of the vote are overwhelming, and especially if the results are very close, as they were in the Brexit and Quebec referenda, such results are unlikely to resolve divisions. Rather they may exacerbate them. For example, if a year following Catalonia’s theoretical secession from Spain, it became clear that Catalonia’s memberships in the EU, the UN and NATO were out of the question; that a new currency would have to be created; and that the economy was in the midst of a predictable and precipitous downturn; a 51-49% vote in Oct 2017 might well become a 44-56% vote by June of 2019.
Canada’s "clear question and clear majority" - criteria that flow from our Clarity Act -, together with the consultations that must follow if a province were to decide to secede, are perhaps a reasonable method of ensuring that the outcome reflects the wishes of a majority and does not ignore minority rights. Nonetheless, it is still a very blunt instrument.
From 2012 to 2016 Jon Allen was Canada's Ambassador to Spain and Andorra. Mr. Allen is currently a Distinguished Senior Fellow at the Canadian International Council, a Diplomat in Residence at Fulbright Canada and a Fellow at the Munk School of Global Affairs at the University of Toronto. At Munk, he is engaged in research and writing on tax havens, Spanish and Israeli-Palestinian issues and populism. At Fulbright, Mr. Allen is advancing a proposal to establish in Canada a Canada-US institute.