international law quarterly
toward obtaining secession from Spain, culminating with a referendum for independence on 1 October 2017. The Catalans voted 92% to 8% in favor of independence, with a 43% turnout. As the day ended, demonstrations became clashes, and the national police sent by the central government responded with violence. Some separatists denounced a repression that was reminiscent of the Franco dictatorship. Since 1-O, the numeronym used by the Spanish media to refer to 1 October 2017, Spain has been struggling with an institutional and democratic crisis. The referendum itself is highly controversial. A few weeks before it was held, the Constitutional Court of Spain declared the referendum illegal because the law enabling it violated the Spanish Constitution and was against the principle of “indissoluble unity of the Spanish nation.” The law was also found to be in violation of the Catalan Statutes of Autonomy, as it did not meet the required two-thirds majority for amending statutes. In addition, the turmoil during the day of the referendum caused irregularities in the administration of the vote, further eroding its legitimacy. On 10 October 2017, Carles Puigdemont, president of Catalonia, signed a declaration of independence. Later that month, on 27 October, the Catalan Parliament voted to declare independence. The Spanish Senate immediately responded by invoking the never-beforeused Article 155 of the Constitution, which grants the Spanish government the right to take all measures necessary to compel a community to meet its obligations and protect the general interest of Spain. That evening, the prime minister of Spain, Mariano Rajoy, dismissed the Executive Council of Catalonia, dissolved the Parliament of Catalonia, and called for regional elections in December. Puigdemont and other Catalan cabinet ministers were charged with rebellion. Puigdemont and a few other ministers fled to Belgium while others were jailed. Rajoy’s bid to restore stability after the regional elections, however, backfired on 21 December 2017, when the separatist parties won the majority of seats of the Parliament of Catalonia, with close to an 80% turnout, thus crystalizing the independence movement with a legitimate election sanctioned by Spain. As a result, there is now little hope of a quick resolution of the crisis. Meanwhile the international community has been a passive observer of the Catalan crisis. Many foreign governments, including France, the United Kingdom, and the United States through its embassy in Madrid, stated that the Catalan independence was an internal issue of Spain. The United Nations also refused to monitor the referendum but has condemned the violence. The inaction of the EU in spite of calls to mediate the conflict has been noteworthy. The EU, however,
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is ill-equipped to deal with separatism crises within its confines. Indeed, the EU has no power over the institutions and internal organization of its member states. Pursuant to Article 4 of the Lisbon Treaty, the Union shall respect its members’ state functions, including their territorial integrity, and the maintenance of law and order. With regard to the violence that took place, the European Court of Human rights—not the EU—is the institution in charge of upholding the 1950 European Convention on Human Rights. In fact, the European Union is not bound by the European Court of Human Rights’ rulings. The Catalan secession movement is very different from the judicial reforms that recently took place in Poland and led to the European Union triggering, for the first time, Article 7 of the European Union Treaty on 20 December 2017. The Polish reforms have stripped the judiciary of its independence and jeopardized the country’s rule of law. Article 7 can be triggered when a member state infringes upon the Union’s founding values, including freedom, democracy, equality, the rule of law, and respect for human rights. It allows the European Council to suspend some of the member state’s rights, including its voting rights. Hungary, which is also undergoing major antidemocratic reforms, is also under scrutiny. Spain, while facing an unprecedented political crisis, is not threatening the core values of the European Union. The EU, nevertheless, through its president of the European Parliament, Antonio Tajani, has warned that no one in Europe will recognize the independence of Catalonia, in a possible attempt to deter other secessionist movements in other regions, including the Basque country, Galicia, or Corsica. While Spain is trying to resolve these very serious issues, a trending topic on social media in late December called for the independence of Tabarnia, a proposed Spanish autonomous community based on the metropolitan territories of Barcelona. It is just a viral joke that ironically uses the rhetoric and slogans of the independentists, claiming a right to secede from Catalonia because “Barcelona is not Catalonia.” The prank is intended to force the Catalan separatists to adopt unionist arguments. The social media phenomenon, at least, allows for a discussion of the shortcomings of the arguments on both sides and the potential nesting doll effect of regionalism. Alice Férot focuses her practice primarily on complex commercial litigation, including international litigation. She is a former federal district court judge clerk, has obtained legal degrees from French and U.S. law schools, is a member of The Florida Bar, and is fluent in English, French, and Italian.