The dangers of normalising legal fantasy – the case of the Catalan referendum

Émile McHarsky explores the current political and constitutional crisis in Spain through the prism of the law and argues in favour of defending both national and international law from opportunistic distortions.

The importance of narrative

I write this from the perspective of an expat living in Barcelona. Very often, I have observed expats (and people following events in Catalunya) get swept up by what one might term Independence fever. This is certainly very much on display now, if one takes the time to go through the comments section of articles covering the 1st October attempted referendum. This is understandable. It is very easy to get enthused about a revolutionary cause – both because it does not require much thought (it offers a clear good and bad dynamic and quick moral gratification) and in this particular context, because the information diet fed to people abroad has until recently been heavily skewed in favour of the secessionist side of the debate. For whatever reason that is, it does not serve the debate and most importantly, the people in Spain and Catalunya, well. Fortunately in recent times there have been many articles published in the international press which present a balanced view.

Much of what will be said here will be linked to the law. This is an unavoidable outcome of my education in the law and general legalistic outlook. I will also leave the political, moral and economic arguments to others and focus mostly on the law, as I feel that it is precisely the legal aspect of the situation which is most commonly misunderstood. I expect someone to shout “Javert, Javert”. That would be a convenient and simplistic answer to a serious rebuke of the actions of the Catalan government and their separatist supporters, but I will happily play the role as it appears that someone has to (in any event, I am given to understand that anyone opposing Catalan independence will quickly find him or herself labelled a “facho/facha” by the particularly extreme independentistas). In any event, judging by the response from Europe, I keep good company, which seems to include the European Commission, the majority of the European Parliament, the French Government and others – not exactly renowned champions of fascism, outside of the troubled minds of Nigel Farage, Marine La Pen and their most hardcore Twitter warriors.

The separatists in Catalan politics and the Catalan Government President, Carles Puigdemont particularly appear to be masters at manipulating events and perception to promote their narrative. Certainly, they have cracked the code of goading the Spainish Prime Minister, Mariano Rajoy into doing exactly the worst thing possible. This is helped, no doubt, by Mr Rajoy’s seeming inability to think tactically and in PR terms. It is particularly curious from my perspective because when I left the UK it was under the rule of David Cameron, a Prime Minister whose only expertise appeared to be PR (until it wasn’t). It remains to be seen which is more damaging to a country – a PM who can do nothing but communicate or a PM who is uniquely incapable of communicating with the totality of his people and of appreciating how the media works.

In this way, Mr Rajoy handed Mr Puigdemont his most potent recent weapon – images of the Guardia Civil apparently brutalising Catalan voters. There is serious doubt cast by several sources as to the veracity of those assertions, but in media terms it does not matter, because the media had what they (and Mr Puigdemont) needed – the tale of the oppressed people being prevented from exercising their democratic rights by the police. The media certainly ran with it, as did the separatists. However, no part of that story is really true at least from an objective point of view, particularly if one makes some well selected legal points.

The concept and content of rights – the right to vote and faux referenda

The claim most oft repeated is that the people voting in the referendum had a right to do so. This, however, is incorrect in legal terms and worse, it is based on wilful or ignorant twisting of the meaning of human rights norms. This, by the way, is something which separatists here do frequently, most notably by twisting the meaning of the principle of self-determination.

Back to the referendum. Some like to pretend that the concept of “rights” exists in a conceptual vacuum. You say that something is your right and it is. Certainly, we all know that voting is a right, so no one questions the details too much. But rights have a (reasonably) defined legal meaning – they are not whatever we want them to be, much though it may seem that way when in casual conversation people joke that the Internet should be a human right, etc. There is a recognised right to free elections. This is found, in the European context, in Article 3 of Protocol 1 of the European Convention on Human Rights. It says, to be precise: “The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”

So the recognised right to elections includes the right to have fair and free elections for the legislature, which ensure the expression of the people. There is no serious way in which it can be claimed that the Catalan people’s will is not represented – they get to vote in regional (for the Catalan Parliament), national (for the Spanish Parliament) and even supra-national (for the European Parliament) elections. This has been observed by various scholars and commentators, including by Guy Verhofstadt, the European Parliament’s representative in the Brexit negotiations, among others. The right to vote of the Catalan people is exhaustively catered for – Spain is a mature democracy and no serious aspersions can be cast on the validity of the Spanish democracy outside of extremist separatist circles. The same cannot be said for the attempted independence referendum, which appears to have been something of a free for all, with little to no democratic safeguards.

Equally, the meaning of Article 3 of Protocol 1 ECHR would be stretched to absurdity if it was extended to grant an unfettered right to vote in unlawful / unconstitutional referenda which aim to break apart a given contracting State. The European Court of Human Rights does not view Article 3, Protocol 1 ECHR as applying to referenda (this was discussed in Moohan and Gillon v. the United Kingdom). There is nothing in the language of that law to suggest such an extension. That this would be an impossible extension becomes even more obvious when one refers to the right of the Spanish state to derogate from the Convention in times of emergency, enshrined in Article 15 ECHR. This right can be exercised, for example, when a contracting State faces “war or other public emergency threatening the life of the nation”. It could certainly be argued, quite strongly, that attempts to unilaterally partition Spain could amount to a public emergency which threatens the life of the nation. It is clear that the ECHR did not in any event envisage that the rights enshrined within it could be used to dismember or impede the proper functioning of the contracting states.

All this is to say that the Catalan government had no right to organise the referendum and in fact, the people voting in it had no right to do so, legally speaking. This is even without broaching the subject of the vote being unconstitutional under the Spanish constitution, since separatists appear to ignore that document at every turn (except where it grants them rights they wish to avail themselves of). Attempting to pick and choose the laws which apply to us is, fundamentally, a rather puerile approach. The separatist movement is making the argument of lex injusta non est lex, however they are not really substantiating the argument – it is highly debatable that the Spanish Constitution is unjust, not in the least because it was approved by over 90% of Catalans in a real referendum not so long ago.

This is not an attractive argument to have to make – stopping people from voting is by and large, not what you want to do. But the argument has to be made for several reasons. First, to defeat the notion, which apparently has taken hold, that we can vote for whatever we want and that voting in general (for anything) is our right. More importantly, when we understand that the people participating in the referendum had no right to be there, the interaction with the police takes on a different dynamic. Violence by the police should always be avoided and deplored. However, what precisely could be expected of the police in the face of determined attempts to undermine the State and its Constitution, which was what was happening, rather than the exercise of any democratic right?

It was obvious that both the Rajoy government and the police would have to act to stop the attempted unlawful referendum if they were to be fulfilling their duties. This is quite probably what Mr Puigdemont was relying on – either the central authorities would have to fail in their core duties to defend the State and its constitution or they would hand Mr Puigdemont the propaganda victory of his dreams. The actual vote going ahead and its result was likely largely irrelevant, since Mr Puigdemont would be well aware that a manipulated and highly irregular vote would have no validity either in general or in the eyes of the international community. This was much more about optics. It is a deplorable manipulation and it is also deplorable that the central government walked right into that trap and that people were hurt because of it. With respect to the Guardia Civil, while I clearly empathise with the situation they were placed in, they should have used their heads (and their hearts) and exercised restraint. There is really very little that can be said to excuse some of the violence observed.

Nevertheless, it must be noted that when faced with mass breaking of the law on that scale it would be impossible to not have some clashes – it is hypocritical in the extreme for the media to act as if clashes with the police do not occur in demonstrations in the UK, France, the US, Russia and elsewhere. Further, there is blame to go around here. The Catalan government especially must take considerable amounts of blame for staging what amounts to a political stunt (or if you ask some, an attempted coup d’etat), knowing full well that they have set pieces in motion which will likely result in their own countrymen being hurt and even deeper division. A cynical mind may believe that this is what they hoped for.

I have heard it said often and also in this context, that simply because the law says something, it does not mean that it should be obeyed. Again, this is an example of natural law theory (lex injusta non est lex) and it is a statement so obvious as to be trite. However, what the separatists call for is not simply breaching any law, but breaching the fundamental law of the State, essentially undermining the State and more importantly, undermining international law by twisting the meaning of a fundamental concept such as “rights”.

This, in my mind, cannot be overstated, because if rights could mean anything, then they will mean nothing. We are not at liberty to change their meaning to suit our needs unilaterally, particularly when doing so tramples over the rights of others and in this context over the rights of the majority of Catalans who do not want independence.

Self-determination and secession

Something similar is observed when the arguments in favour of a referendum and independence are framed in terms of self – determination. This is another legal term which appears to have taken on a life of its own in media and political circles and this is unfortunate. The right to self-determination of peoples is a complex part of the law. What must not be equated however, is a right to self-determination and a right to secession. This is an important difference, because there is an internal and external aspect of self-determination. Self-determination evolved as a concept in relation to former colonies. In the post-colonial context, the right to self-determination goes hand in hand with the right to secede. This is more or less the initial point of this principle – to provide the legal route for colonies to be free of their oppressors. Since then the principle has evolved to allow for secession in cases where a group of people have suffered serious oppression or violence. One example of that is Kosovo. The secessionists in Catalunya seem to draw parallels between the cases of Catalunya and Kosovo, but this is at best perplexing, considering the fact that the Kosovar people endured things which have no parallel in modern (post-Franco era) Catalan history. It is both dishonest and in poor taste for Catalan Independentists to compare their experiences to what was inflicted upon the people of Kosovo. Secession as a right, outside the colonial context, is vested in people only insofar as their right to self-determination cannot be satisfied internally. Secession is not in itself unlawful, but it can be justified only if a given people cannot exercise their self-determination within the boundaries of a particular state. This is because there is another applicable principle of international law – that of territorial integrity. It is precisely because of this principle that secession is only accepted internationally in cases of serious oppression and violations of human rights, which are not found in Catalunya. In fact, given that Catalunya has a remarkable degree of autonomy by world standards, it would be extremely difficult to argue that there is a failure of internal self-determination which could justify secession.

Who is the oppressor, really?

Now I would like to pose the following question – imagine if those who cry oppression are themselves the true oppressors? The issues of self-determination and democracy, which form the bread and butter of arguments around the attempted referendum and Catalan independence more broadly, are fundamentally about identity and the right to be heard. Here is where my personal experiences will become more relevant. In Catalan daily and public life, mostly all anyone hears is the independentist movement. They are, by and large, the people who are always heard. This goes beyond the fact that moderate Catalans complain of considerable social oppression for expressing anti-independence views. In fact, much of the Indepndentista movement is centred around suppressing dissenting voices and presenting to the world a vision that the majority of Catalans want independence. This is done by drowning out the voice of those who oppose independence through, for instance, highly visible and highly organised demonstrations. However, the notion that a majority of Catalans want independence (as opposed to that they want a referendum on it or that they want a better deal from Madrid) is not rooted in reality. In fact, official polls do not bear out such claims and crucially, neither do official elections, where pro-independence parties have not been able to secure majorities. The only times where the independence movement gets a majority is when a faux referendum is carried out in which anti-independence voters generally do not participate. What we are left with is a vocal minority attempting to enforce its will on the majority. There are many words for this, but democracy is not one of them. Going beyond voting and on the matter of representation and oppression, it is eyebrow raising that education at all levels in Catalunya is de facto mandatorily in Catalan. This is both arguably discriminatory against non-Catalan Spaniards and is completely at odds with the notion that Catalan identity is suppressed. If anything, the regional government is actively using this approach to suppress the broader Spanish identity of its citizens and to oppress those citizens who feel Spanish as well as Catalan and who wish to be educated in Spanish (or their children to be).

The Independence drive appears to dominate the agenda of the current (and previous) Catalan regional governments. While this is understandable to an extent since for instance the current Government got into power on a pro-Independence ticket, we should be conscious that they did so without securing majority vote. This means that they are focusing public efforts and public funds (for instance through the organisation of an illegal referendum) directly against the wishes of the majority of the electorate. Apart from being undemocratic, this is also an overrepresentation of the independentist voice and underrepresentation of the unionist one.

More disturbingly, there are persistent allegations that Catalan public television has become a mouthpiece for the pro-independentist parties. This can easily be argued to amount to suppression of opposing views. Even more pertinently, unlike the non-existent right defended by the organisers of the October 1st referendum, promoting only the Government’s pro-Independence viewpoint on public television arguably constitutes a stark breach of Article 10 of the ECHR, which protects the freedom of expression. This right also includes the right to ‘receive and impart information and ideas without interference by public authority’. A public policy of favouring independentist viewpoints on public television could well qualify as a breach of the right of non-independantist Catalans to receive information and ideas. It is surely a point to note that despite such attempts at suppressing opposing views, that separatists have not been able to secure a majority in any election. Most recently on the 12th of October, Euronews broke a story in which a member of the Catalan police (the Mossos d’Esquadra) alleged that Catalan police is being used to serve only the pro-independentist citizens and aims, which is why, he alleges, they were ineffective in shutting down polling stations. If this is indeed true, then this suggests that the Catalan government or the Mossos hierarchy have compromised the independence of the regional police force. If true, this is beyond disturbing and highlights the scale of the problem in Catalunya.

The pro-independence camp is loud… very loud. But being loud and being right or in the majority are not the same things. The people who support independence deserve a voice and deserve to have their concerns heard. It would also be naïve in the extreme for the Spanish central authorities to believe that they can continue as before. Catalans have a range of grievances ranging from the economic to the social – for instance the general feeling that Catalan identity is not sufficiently respected within Spain and that they are ill treated by other Spaniards. These are issues which are too fundamental to simply be ignored. At the same time, it is my hope that this article has made a compelling argument as to why the current course of the Catalan government is not the way forward. This, more than ever, is a time where Europe needs greater unity and better understanding. It would be a tragedy for Catalunya, Spain and Europe if the forces of division are allowed to prevail, particularly through the underhand methods employed by the separatists in Catalunya, rather than as a result of genuine negotiation and understanding, perhaps followed by a legitimate vote. They have succeeded, thus far, in hijacking the language of democracy and rights, twisting it away from its legitimate goals and towards the pursuit of their narrow, nationalist agenda. It would be wrong to sleepwalk into allowing this to continue. More fundamentally, indulging the separatist attempts to twist international human rights norms into this carnival form will have unpredictable and serious circumstances not just for Catalunya and Spain, but for the World as a whole.