Friday, 30 September 2016

Much said of Catalan President's "Referendum or Referendum", but there's more

Much has been said and discussed about Catalan President Carles Puigdemont's "Referendum or Referendum", i.e. a referendum will be held whether the Spanish governement approves it or not. But there is another point journalists seem to be evading and many commentators have missed: the laws of disconnection.

These laws include a bill on an Internal Revenue Service, which is already being expanded to meet the requirements of an independent state, and a Social Security Bill, which will go beyond the current management of the Health Service to include all aspects of social care and welfare such as pensions, family support and unemployment benefit.

But there is also a third critical law which is to be passed before the referendum is held in the second half of September 2017: the Legal Transition Bill. The opening article of that bill will read something like "Catalonia is an independent republic." In other words, it will be a de facto unilateral declaration of independence.

Pro-independence actors, both the political parties and the civic grass-roots organisations such as the Catalan National Assembly (ANC) and Omnium Cultural, have always argued against the idea set forth by Spain that "independence is illegal" and that an independent Catalonia would "wander in empty space". The third law of disconnection, the Legal Transition Bill will guarantee there will be no legal vacuum, no illegality, no void. All current Spanish law not superseded by Catalan legislation, as well as all international treaties signed by Spain, will remain in force guaranteeing rule of law.

This is, in effect, what was backed by the Vote of Confidence
in the Catalan Parliament yesterday, even though there has been much vociferation by the press and by unionist parties and commentators on the Referendum. The Junts pel Sí coalition, including Christian-Democrat Conservatives and Liberals though to Social-Democrats and Socialists, along with the far-left CUP, have thus set the ball rolling towards the completion of the Roadmap for Independence set forth at the beginning of the current Catalan Parliament within the 18 months it
established, even though it had at that time seemed wildly optimistic.

Tuesday, 12 January 2016

Letter to an unloved spouse

Original in Catalan by Mateu Ciurana

Listen Spain. I want us to separate. I would not have imagined just a few years ago that this would come to an end like this, but there's no future in what we have. I see you as an unpleasant husband who mistreats and exploits me. 

I don't regret having loved you and trying to save our relationship, but you always held me as your property. I have served you and you have shown me off. You have told me that you love me, out of the side of your mouth, and only when you wanted something from me. It is very sad, after what I have done to make things better.

There are still things I like about you, I don't mind admitting it. Your lovely Spanish language for example. What a shame you haven't shown much interest in me all these years. We have a common history and a child together, but now I want to break with you.

I know your strategies
well. You will say that, without me, you will be nothing, that we need each other. For you, the way to fix things is for me to give up being what I am. Do you realize that? I never thought I could feel the unlove I feel for you now. I'm sorry.

Now we
need to agree and see how we share things out and how we raise the children. I know I will have to pay a settlement. No problem. Let's talk about it and do some figures. You never could stand that I earned more than you. With the generosity I have always shown you. How absurd!

I could reproach your not seriously accepting the way I am and my wish to live my way. What we had could have been great, but now I want to say goodbye. Amiably, if possible. Until now you didn't believe I would take this decision, but that's not my problem. What will you do? Do your best to maintain some form of dignity, if you can.

I'm looking forward to living my own life, and I have many projects. Don't say that phrase you like, attributed the mother of the last Muslim king of Granada (Cry like a woman for what you could not defend like a man), because in addition to male chauvinist, I'm sure it's false. Take it as you wish, but I want to leave you.

I wish you luck. Goodbye, Spain!

Thursday, 10 December 2015

FDI in Catalonia Grows Fourfold Despite Independence Process

Catalan exports account for a quarter of Spanish foreign trade

Despite the ongoing process towards independence of Catalonia, foreign direct investment, or FDI, has grown almost fourfold, a survey by Catalan employer's association Foment del Treball shows.

According to this study, the process towards independence is proving to be no hindrance to economic growth in Catalonia, contradicting what the Spanish government and other unionist lobbies argue.

Foment del Treball yesterday presented its Economic Situation Report [PDF, in Catalan], which indicates positive data for the Catalan economy. Foreign investment in Catalonia grew almost fourfold during the first half of the year. Growth in Catalonia stood at 280%, the strongest increase recorded in the whole of Spain, which overall has grown by 73%. In absolute terms, investment over the first half of 2014 grew by €1.4 bn. The vast majority of foreign investment –88%– comes from OECD countries, with 65% coming from European Union member states.

In response to journalists' questions on the effect of the independence process on the economy, the authors of the Foment report said that investments are not decided overnight. As Foment Chairman Joaquim Gay de Montellà said a few days ago, it was not true that companies were fleeing, and any relocations that had occurred depended more on tax policy issues.

In fact, only last week Barcelona Chamber of Commerce chairman Miquel Valls denied that companies were leaving because of Catalan independence claims, although he admitted companies may be relocating due to taxes being higher in Catalonia than in other regions, precisely due to the Spanish government underfunding the Catalan administration.

Monday, 19 October 2015

Spain Threatens Catalans with Suspension of Self-Rule

Spain is no longer governed under rule of law –if it ever was– but is run under rule BY law

The government has once again brandished Article 155 of the Spanish Constitution which allows for the suspension of home-rule after hearing Catalonia's President Artur Mas was considering disobeying his possible disqualification for holding a mock referendum on independence on November 9 last year. 

In an interview on a local radio station, President Mas said "Before the state's NOs, there remain only two options: we either bow and kneel, or we stand strong."

Spanish Justice Minister Rafael Catalá and Vice President Soraya Sáenz de Santamaría said last week that the government has the necessary weapons to enforce the law by applying Article 155 of the Constitution, along with a recent amendment to the Constitutional Court's statutes passed only with the ruling Popular Party votes– allowing the suspension of public officials who do not comply with the Court's rulings.

Both speak as if President Mas had committed a crime, which is in my view pressuring the judges. It should be remembered that the complaint brought against Mr. Mas, his then VP Joana Ortega and his Minister for Education Irene Rigau was ordered by Spain's Prime Minister Rajoy. The Attorney General overruled the prosecutors in Catalonia, who had not considered there was any wrongdoing in holding the mock referendum.

The ruling Popular Party government, along with the
Spanish establishment and the mass media they control, are doing their utmost to convince everybody that the referendum, the court case and the support received by the defendants, pressuring the judges and threatening their independence referring to the crowd that turned up outside the court when President Mas appeared before the judges last Thursday– all respond to a plan orchestrated by the evil Mr. Mas to stay in power at any price.

So, what is so terrible about what happened on November 9? Something called a participatory process, i.e. a civic, festive event where the people deposited non-official, non-binding ballots in non-official, non-binding
cardboard ballot boxes. It was in fact a demonstration in which participants were counted one by one: 2.3 million, 1.8 of them favour of independence. Many Catalans –and not just those who joined the crowd outside the court to lend their support to Mr. Mas, nor those who voted for him– are outraged to see how the Popular Party and the Spanish government are acting against the Catalans' elected representatives, arbitrarily and in a spirit of revenge for the utter defeat they have suffered in the last elections, resorting to all and any of the powers of the State –using the laws to impose themselves, refusing to listen to the people of Catalonia.

Sunday, 19 January 2014

The European Union, Catalonia and Internal Enlargement

Now is the time for the EU to be proactive and develop a policy for dealing with Catalonia's call for self-determination and possible independence. Its current path could well lead to chaos for Europe's grand experiment.

This is the epilogue to the article titled How the Voters of Catalonia May Change Europe, published on January 16 in the Atlantic Council's New Atlanticist blog.

It is obvious that the Spanish government's stonewalling before the Catalan citizens' demands for a broader view of a democratic so-called Right to Decide, an analogy for self-determination, leaves no leeway for any negotiated solutions and puts the European Union in the predicament of not being able to propose any, as the Commission does not wish to antagonise a member state.

But can the European Union allow itself to be sucked in by Spain's government policy of disdain towards a part of its citizens and its use of legal sophistry to reject its citizens' demands to decide where their future should lie? The EU cannot stand on the sidelines before a new regional paradigm that has become manifest with current European territorial issues such as those of Scotland, Flanders, and of course Catalonia. These will not simply go away and in any case, cannot be justifiably quashed if the EU's principles of respect for minorities and for democracy in general are to be abided by. The EU must take the initiative to find possible solutions, and one of these is Internal Enlargement.

The concept was set forth several years ago by European think tank Centre Maurits Coppieters based in Brussels. Internal Enlargement (PDF) would be an excellent solution for many internal disputes and would strengthen the European Union, not in the sense some fear, of its becoming a federal super-state, but in that of the principles which any and all member states and their citizens should be able to agree on: the EU's Fundamental Values.

The European Union is not simply a loose economic club, an association of states or an international organization. It is a uniquely flexible political construct that has constantly adapted to circumstance and should thus be able to find a way to accommodate the demands of a part of its citizens. Its Member States have relinquished part of their sovereignty to EU institutions, with many decisions made at the European level, facilitating over 60 years of peace, stability, and prosperity. This should continue.

Internal disputes are obviously a threat to this, but as history has shown, threats do not necessarily and should not lead to clashes if solutions are found. But these will not appear of their own accord, and the disputes will not simply go away, as the Spanish government seems to believe. In the case of Catalonia, the issues involved have smouldered for centuries, briefly surfacing again and again, put down by successive authoritarian or dictatorial governments. And in the democratic period, the successor to the last dictatorship of 1939-1976, these issues have obviously not been dealt with successfully.

The citizens of Catalonia —and not the regional government, which had avoided cracking the kernel of the issue until the massive pro-independence demonstration in Barcelona of upwards of 1.5 million citizens on September 11, 2012— have clearly expressed their wish to decide for themselves on how to go about solving the issues, and demand a referendum on the most prickly one, e.g. whether Catalonia should continue forming part of the Kingdom of Spain.

So, with never-ending evolution, working to adapt to each new circumstance and thus consolidating its fundamentals, the EU must find the way to nudge the nation states to accept the primordial element of democracy, the Right to Decide, without browbeating or menacing citizens, and offering peaceful outcomes.

Tuesday, 29 January 2013

The Right to Self-Determination - A legal analysis

Analysis by the Human Rights Commission of the Barcelona Bar Association

On January 8, the Barcelona Bar Association (Il·lustre Col·legi d’Advocats de Barcelona) published an analysis by its Human Rights Commission on the legitimacy of Catalonia's claim to statehood.
In almost forty years of existence, the Human Rights Defence Commission of the Barcelona Bar Association has been present in all debates of social and legal relevance in our country, insofar as they could affect fundamental human rights, both individual and collective. At present, when the people of Catalonia are set to take decisions that may determine their future as a nation, the Defence Commission cannot be absent from the fervent, enthusiastic debate that has come about on the right to self-determination. That is why we wish to express our position on the matter, obviously within the corresponding legal framework.

Firstly, it is manifest that the right to self-determination is a basic, universal right of all peoples, as per international law in force since the establishment of the United Nations Charter (Articles 1 & 55) of 1945, and expressly proclaimed in Article 1 of the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on December 16, 1966 and in force since 1976. In practice however, the right to self-determination had been internationally recognised much earlier. Consider the United States Declaration of Independence or the creation of new states upon the dissolution of the Austro-Hungarian, Ottoman and Russian empires at the end of the First World War. The exercise of the right to self-determination has resulted in the number of sovereign states quadrupling since 1900. Twenty of these new states are the result of secession of a part of one state to establish a new one. Specifically, in Europe there have been 14 cases of secession since 1900: Norway from Sweden (1905), Finland from
Russia (1917); Ireland from the UK (1922), Iceland from Denmark (1944), Lithuania, Latvia and Estonia from the USSR (1990-1991), Slovenia, Croatia and Bosnia from Yugoslavia (1991), Slovakia from Czechoslovakia (1992), Montenegro from the Union of Serbia and Montenegro (2006), and Kosovo from Serbia (2008). The process of self-determination and the creation of a new sovereign state was different in each case – contemplated in the constitution, agreement or unilateral declaration of independence – but all with the ultimate legitimation of the process through the majority decision of the people, expressed freely and democratically in referendum.

One particular doctrinal school in international law has defended a restrictive interpretation of the right to self-determination, considering this applicable only to processes of decolonisation. There is certainly a clear legal framework consisting of a number of United Nations resolutions establishing conditions and procedures to apply this right to colonised peoples. This framework, however, has not been sufficiently developed for the case of non-colonial situations. But notwithstanding the lack of regulation of a right in a specific situation, this does not mean denial of the right, since the right has been formulated in general terms without establishing any exceptions, as is the case of the right to self-determination. Additionally, the International Court of Justice in The Hague ruled in favour of self-determination as a universal right to be respected by all states, erga omnes, in an advisory opinion on the Wall in the occupied Palestinian territories in 2004. Likewise, the ICJ replied in its significant Resolution of July 22, 2010 to a request from the General Assembly of the United Nations on whether the unilateral declaration of independence of the territory of Kosovo proclaimed on February 17, 2008 was in accordance to international law, ruling that there is no regulation in international law prohibiting unilateral declarations of independence and should therefore be considered to be in conformity with international law.

In the case of Catalonia, the exercise of the right of self-determination is being denied by the government and most state institutions in Spain, even opposing putting the question to the people in consultation. This outright opposition is essentially based on two arguments. First, the affirmation that the sovereignty lies collectively in the whole people of Spain. The right to decide on the separation of Catalonia from the rest of the state does not thus correspond to the people of Catalonia separately as it is not a sovereign political subject. The second argument consists of saying that even if this condition were attributable to the Catalan people, the secession of Catalonia from the Spanish state would in any case be illegal as it would collide with current legislation, specifically with the Spanish constitution, which does not recognise the right to self-determination of any territory of the state, and which proclaims in Article 2 “the indissoluble unity of the Spanish Nation, common and indivisible home to all Spaniards.

Regarding the first argument, this is what is known in basic logic as “Petitio principii” (begging the question). It is self evident that if the Catalan people were the subject of sovereignty, it would already be independent. What is at issue is whether the Catalan people meet the required conditions for its right to self-determination to to be recognised, i.e. the condition as a people with the capacity to decide for itself whether to constitute a sovereign state. It should be remembered that the United Nations Charter and the aforementioned international treaties attribute the right to decide to the peoples, not to the states. Thus, the condition of the Catalan community as a political subject with the right to decide cannot be disputed: a one-thousand-year history, its own language, its own civil code, a distinct social and economic structure, its own political institutions, and a manifest will to maintain its own identity expressed over centuries, fully endorse the national purport of Catalonia, likewise recognised in the preamble of its Statute of Autonomy, even in the version curtailed by the sentence of the Constitutional Tribunal.

It is true the current Spanish constitutional framework does not allow for the self-determination of Catalonia. We thus find ourselves before a possible discrepancy between two legitimacies: that of the current constitution and the democratically expressed will of a national community. But it should not be neglected that in a democratic society the law is nothing other than the expression of the will of the people expressed through its political representatives duly constituted as its legislative power. This intrinsically democratic concept cannot assent to the sequestration of the will of the people –in this case represented by the Parliament of Catalonia– in the name of a coercively imposed legality. That is why we consider the Spanish government would have no legitimacy if opposing the decision of the Parliament of Catalonia to give voice to the citizens so as to freely express its majority will –whether affirmatively or negatively– concerning the creation of a sovereign Catalan state. If the outcome were affirmative, the Spanish government would have no legitimacy in opposing a process of negotiation in order to establish conditions of secession and to reach a common agreement on its complex consequences. It would likewise have to make such constitutional and legal amendments as necessary to make the process orderly and equitable. This was the criterion established by the Supreme Court of Canada on the validity of the secessionist referendum in the province of Quebec in 1995. In its advisory opinion of 1998, the Court recognised that a clear majority vote on a clear question would democratically legitimise an initiative in favour of secession and would compel the government of Canada to negotiate the conditions of separation.

A unilateral declaration of independence, proclaimed by the Parliament of Catalonia, would be justified under international law if the Spanish government were to prevent a ballot to consult the citizens on the creation of a new state or if it refused to accept an affirmative result. In the latter case, the declaration of independence by Parliament would have immediate effect to bestow the new state with political existence. Indeed, this would meet the minimum criteria of permanent population, defined territory and inherent political authority, which define a state as was established by the Montevideo Convention on Rights and Duties of States, adopted on December 26, 1933. The Convention provides that the political existence of a state is independent of recognition by other states. This principle, known as constitutive theory of the state, was ratified by the opinion of the Badinter Arbitration Committee created by the then European Economic Community on September 27, 1991, to provide answers to legal issues raised by the split of the Socialist Federal Republic of Yugoslavia. In its opinions, the Badinter Committee asserts that the existence of states is a matter of fact, without recognition by the international community as a determining condition of statehood.

The crucial issue of the juridical legitimacy of a unilateral declaration of independence in conflict with legislation was settled by the aforementioned resolution on Kosovo by the International Court of Justice at The Hague. The resolution states that upon proclaiming Kosovo an independent and sovereign state, the Kosovo Assembly was not operating as an institution of self-government in the pre-existing administration and within the limits of existing law, but rather that it stood outside its scope and acted exclusively by virtue of the powers conferred by democratic representation of the people's will. The declaration of independence was not intended, therefore, to produce its effect within the existing legal order, but created a new legal entity. In conclusion, the Court considered that as there was no rule in international law that prohibited it, and once it was confirmed it would be impossible to negotiate with Serbia, the unilateral declaration of independence by the Kosovo Assembly was not contrary to the international legal order.

On the basis of the above legal arguments, the Committee for the Defence of Human Rights of the Barcelona Bar Association holds that the power to decide on its future, either within the State where it is integrated, or separately to form a new sovereign state, depends on the will of the majority of its citizens expressed democratically and peacefully, is an inalienable right of Catalonia as a national community.

Barcelona, January 2013

Saturday, 17 March 2012

Why has Blogger changed the URL for my blog?

The URL for my blog has suddenly changed. For some reason unbeknown to me, Blogger has decided I should have a .es at the end. But .es corresponds to Spanish sites. I personally may be located in Spain, but does that mean my blog is obliged to be identified as Spanish if it is written in English and means to address an international English-speaking audience?

In any case, Blogger (Google) might have had the courtesy to ask if I would like to be identified as Spanish, or at a bare minimum, to have had the decency to forewarn me of this change!