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. Introduction: the debates about the “right to decide” of minority nations 2. The Spanish political and constitutional context 3. 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. Initiative by democratically elected “more-than-local” institutions (e.g. regional parliaments) 2. Demand for a referendum by absolute majority of seats+votes 3. Demand should be followed by dissolution + elections + reiteration of absolute majority in new mandate 4. > Obligation to facilitate/organise a democratic consultation/referendum on independence/sovereignty with a clear question 5. > Regulation of possible outcomes 1. If YES > obligation to implement in good faith secession/new relation in reasonable time (e.g. 18 months) 2. 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 national- territorial-identity issues: distrust, win-loose scheme, arguments=threats, reluctance towards asymmetry

3.- The current sovereignty process in Catalonia The Basque precedent ( ) (+ Constitutional Court judgment 103/2008) The Amendment of the Catalan Statute: Constitutional Court judgment 31/2010 The “domino effect”: other regions + the “Camps” clause

The sovereignty process in Catalonia 1. July 2010: Constitutional Court judgment on Statute of Autonomy / 2010 onwards: increasing social pressure: local referenda + massive demonstrations 2. September 2012: Resolution in favor of a referendum 3. November 2012: elections: pro-referendum majority 4. January 2013: Catalan declaration of sovereignty (challenged > void by Constitutional Court) : Demand for a political agreement with the State 6. December 2013: agreement on the referendum for March-April: demand for power to hold a referendum 8. 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 Economic downturn Constitutional court ruling 2012 demonstration

National identity feelings and constitutional preferences

The sovereignty process in Catalonia 1. July 2010: Constitutional Court judgment on Statute of Autponomy / 2010 onwards: social pressure: local referenda + massive demonstrations 2. September 2012: Resolution in favor of a referendum 3. November 2012: elections: pro-referendum majority 4. January 2013: Catalan declaration of sovereignty (challenged > rendered void by Constitutional Court) : Demand for a political agreement with the State 6. December 2013: agreement on the referendum for March-April: demand for power to hold a referendum 8. September 2014: Approval of the consultations act + call for referendum

( LEFT 66 CENTRE/RIGHT 69 SOVEREIGNTY 87 (107) ERC+ICV+CUP 37 PSC 20 CIU 50 UNITY 28 (48) C’s 9 PP 19

The sovereignty process in Catalonia 1. July 2010: Constitutional Court judgment on Statute of Autonomy / 2010 onwards: social pressure: local referenda + massive demonstrations 2. September 2012: Resolution in favor of a referendum 3. November 2012: elections: pro-referendum majority 4. January 2013: Catalan declaration of sovereignty (challenged > rendered void by Constitutional Court) : Demand for a political agreement with the State 6. December 2013: agreement on the referendum for March-April: demand for power to hold a referendum 8. 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. July 2010: Constitutional Court judgment on Statute of Autonomy / 2010 onwards: social pressure: local referenda + massive demonstrations 2. September 2012: Resolution in favor of a referendum 3. November 2012: elections: pro-referendum majority 4. January 2013: Catalan declaration of sovereignty (challenged > rendered void by Constitutional Court) : Demand for a political agreement with the State 6. December 2013: agreement on the referendum for March-April: demand for power to hold a referendum 8. 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 September 2014: Approval of the consultations act + call for the “consultation” on 9 November 2. Spanish government challenges both the Act and the Call Decree before Constitutional Court 3. Constitutional Court suspends the Act and Decree / states that Catalan Act and Decree are against constitution and void 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. with a unitary candidature in favor of independence > unilateral declaration 2. in separate lists but different parties sharing a common path for independence 4. 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