UACES Annual Conference
Cork, Ireland
2 September 2014
Member-State Referendums and
Constitutional Change:
The Wider Implications for the EU
Eduardo J. Ruiz Vieytez
University of Deusto (Bilbao)
Outline
1.
2.
3.
Introduction: the debates about the “right to
decide” of minority nations
The Spanish political and constitutional
context
The current process in Catalonia
1.
Any role for the EU?
1.- Introduction: the debates on the “right to
decide” of minority nations
• Theoretical debates on self-determination (right to
decide) > debates on contents and subject >
democratic emergence of new demoi?
• Limited responses of International/Constitutional Law
> Political problem with no (few) legal solutions? >
political solutions needed
• Role of Law: instrument for coexistence, settlement of
conflicts, channel of fair political aspirations > to
regulate these processes (Susana Mancini, Daniel
Weinstock…)

Option in favor of regulating secession processes

Elements for a preliminary proposal:
1.
2.
3.
4.
5.
Initiative by democratically elected “more-than-local”
institutions (e.g. regional parliaments)
Demand for a referendum by absolute majority of
seats+votes
Demand should be followed by dissolution + elections +
reiteration of absolute majority in new mandate
> Obligation to facilitate/organise a democratic
consultation/referendum on independence/sovereignty with
a clear question
> Regulation of possible outcomes
1.
2.
If YES > obligation to implement in good faith secession/new relation in
reasonable time (e.g. 18 months)
If NO > prohibition of new process before reasonable period (e.g. 15
years)
2.- The Spanish context:
political and national diversity


Lack of total consensus on national identity:
 a unique Spanish nation or a multi-national Spanish State?
Spanish national identity feelings disputed mainly in Catalonia and
Basque Country



‘Spain today is a state for all Spaniards, a nation-
state for a large part of the Spanish population, and
only a state but not their nation for important
minorities’ (Juan Linz 1973)
Two party system: PSOE + PP (in office)
Substate party systems: Basque Country + Catalonia
> National Asymmetry
Spanish Constitution 1978
* A unique Nation and unique sovereignty
* Autonomy for all regions
Article 2: The Constitution is based on the
indissoluble unity of the Spanish Nation, the
common and indivisible fatherland of all
Spaniards, and recognizes and guarantees
the right to autonomy of the nationalities and
regions which make it up and the solidarity
among all of them.
Some elements of the Spanish
political culture
1. Short experience of democracy
2. Uncompleted nation building > Lack of
trust/recognition of peripheral national projects
3. Idea of Constitution as a myth/idealised consensus
that cannot be “betrayed”
4. Legality vs legitimacy: legality as a tool of/for the
conflict
5. Extreme social sensitivity (morality load) on nationalterritorial-identity issues: distrust, win-loose scheme,
arguments=threats, reluctance towards asymmetry
3.- The current sovereignty process in Catalonia
The Basque precedent (2001-2008)
(+ Constitutional Court judgment 103/2008)

The Amendment of the Catalan Statute:
2003-2006
+ Constitutional Court judgment 31/2010


The “domino effect”: other regions + the
“Camps” clause
The sovereignty process in Catalonia
1.
2.
3.
4.
5.
6.
7.
8.
July 2010: Constitutional Court judgment on Statute of
Autonomy / 2010 onwards: increasing social pressure:
local referenda + massive demonstrations
September 2012: Resolution in favor of a referendum
November 2012: elections: pro-referendum majority
January 2013: Catalan declaration of sovereignty (challenged
> void by Constitutional Court)
2013: Demand for a political agreement with the State
December 2013: agreement on the referendum for 9-11-2014
March-April: demand for power to hold a referendum
September 2014: Approval of the consultations act + call for
referendum
Unofficial pro-independence referenda in
Catalan municipalities
Evolution of social preferences on constitutional
status for Catalonia 2006-2013
Economic downturn
Constitutional court
ruling
60
2012 demonstration
50
40
30
20
10
0
06
20
06
20
06
20
06
20
07
20
07
20
07
20
Autonomy
07
20
08
20
08
20
08
20
08
20
Federalism
09
20
09
20
09
20
09
20
10
20
Independence
10
20
10
20
10
20
11
20
11
20
11
20
Regionalism
12
20
12
20
12
20
National identity feelings and
constitutional preferences
2012
100%
80%
60%
Independence
Federalism
Autonomy
Regionalism
40%
20%
0%
Only
Spanish
More
Spanish
As Spanish
as Catalan
More
Catalan
Only
Catalan
The sovereignty process in Catalonia
1.
2.
3.
4.
5.
6.
7.
8.
July 2010: Constitutional Court judgment on Statute of
Autponomy / 2010 onwards: social pressure: local referenda +
massive demonstrations
September 2012: Resolution in favor of a referendum
November 2012: elections: pro-referendum majority
January 2013: Catalan declaration of sovereignty (challenged
> rendered void by Constitutional Court)
2013: Demand for a political agreement with the State
December 2013: agreement on the referendum for 9-11-2014
March-April: demand for power to hold a referendum
September 2014: Approval of the consultations act + call for
referendum
(
SOVEREIGNTY
87 (107)
LEFT
66
CENTRE/RIGHT
69
ERC+ICV+CUP
37
CIU
50
PSC 20
UNITY
28 (48)
C’s
9
PP
19
The sovereignty process in Catalonia
1.
2.
3.
4.
5.
6.
7.
8.
July 2010: Constitutional Court judgment on Statute of
Autonomy / 2010 onwards: social pressure: local referenda +
massive demonstrations
September 2012: Resolution in favor of a referendum
November 2012: elections: pro-referendum majority
January 2013: Catalan declaration of sovereignty
(challenged > rendered void by Constitutional Court)
2013: Demand for a political agreement with the State
December 2013: agreement on the referendum for 9-11-2014
March-April: demand for power to hold a referendum
September 2014: Approval of the consultations act + call for
referendum


Declaration on the Sovereignty and the right to decide of the
people of Catalonia (adopted by Catalan Parliament on 23
January 2013)
(85 votes in favor, 41 against, 2 abstentions, 7 absent)
In accordance with the democratically expressed will of the majority of the Catalan public, the Parliament
of Catalonia initiates a process to promote the right of the citizens of Catalonia to collectively decide their
political future, in accordance with the following principles:
-Sovereignty. The Catalan public has, by reason of democratic legitimacy, political and legal sovereignty.
-Democratic Legitimacy. The process of exercising the right to decide will be scrupulously democratic, especially by guaranteeing a variety of options which will
all be respected, and, through deliberation and dialog within Catalan society. The objective will be that the resulting pronouncement be the expression of the
majority of the popular will, which will be the fundamental guarantor of the right to decide.
-Transparency. All the necessary tools will be enabled so that the whole of the population and all of Catalan society have all of the information and knowledge
regarding the right to decide process, and to promote their participation in the process.
-Dialogue. Catalonia will engage in dialogue and negotiations with the Spanish State, European institutions and with international organizations.
-Social Cohesion. The social and territorial cohesion of Catalonia will be guaranteed, and so will the desire, as expressed on numerous occasions by Catalan
society, to maintain a unified nation.
-Europeanism. The founding principles of the European Union will be defended and promoted, especially
the fundamental rights of its citizens, democracy, the commitment to the welfare state, solidarity with the
different nations of Europe, and to economic, social and cultural progress.
-Legality. All existing legal frameworks will be utilised to strengthen democracy and to exercise the right to decide.
-The principal role of Parliament. The Parliament of Catalonia, as the institution that represents the people of Catalonia, has a leading role in this process and,
therefore, it will be necessary to decide and specify the mechanisms and the dynamics of the process which will guarantee this principle.
-Participation. The Parliament of Catalonia and the Government of the Generalitat must be active participants at the local level, in the maximum number of
political forces, in economic and social elements, in the cultural and civic organisations of our country, and to specify the mechanisms that will guaranty this
principle.
The Parliament of Catalonia encourages all citizens to take an active role in the democratic process for the right to decide of the Catalan people.
House of Parliament, 23 January 2013
The sovereignty process in Catalonia
1.
2.
3.
4.
5.
6.
7.
8.
July 2010: Constitutional Court judgment on Statute of
Autonomy / 2010 onwards: social pressure: local referenda +
massive demonstrations
September 2012: Resolution in favor of a referendum
November 2012: elections: pro-referendum majority
January 2013: Catalan declaration of sovereignty (challenged
> rendered void by Constitutional Court)
2013: Demand for a political agreement with the State
December 2013: agreement on the referendum for 911-2014
March-April: demand for power to hold a referendum
September 2014: Approval of the consultations act +
call for referendum
What is next?: the future of the sovereignty process
Political blockade = No legal way-out
19 September 2014: Approval of the consultations act + call for
the “consultation” on 9 November
Spanish government challenges both the Act and the Call Decree before
Constitutional Court
Constitutional Court suspends the Act and Decree / states that Catalan
Act and Decree are against constitution and void
1.
2.
3.
4.
Possibilities for Catalan government
1.
Organization of an illegal referendum: feasible?
2.
Unilateral Declaration of Independence: no
3.
Dissolve Catalan Parliament and call new elections
1.
2.
4.
with a unitary candidature in favor of independence > unilateral declaration
in separate lists but different parties sharing a common path for independence
Wait till the end of the mandate, after local elections and Spanish
elections: try to negotiate again with new Spanish government > 3
To conclude: What role for EU?
Why and how does this process affects EU?
1.
Outcome of the referendum: internal enlargement or reduction of EU
citizens/territory?
2.
Inequality between European citizens?
3.
Political impact on other minority nations: FL, EH, ST…
4.
Belonging/veto to EU is being used as a threat in the debate

EU could/should play a double role:
 Mediate when there is no agreement: check if political demand is
fair and relevant > offer itself as mediator in the process, to
facilitate agreements/play down tensions
 Regulate and clarify the “internal enlargement” issue: what are
the consequences of an internal breakout and possible new
membership (Christopher Connolly)
Thank you
Go raibh maith agaibh
2014
ejruiz@deusto.es