On Friday June 9th 2017, the Government of Catalonia announced the celebration of a referendum on independence to be held, with the opposition of the Spanish state, the next October 1st 2017. Catalan citizens will be asked to decide their political future against the volition of the Spanish government that has vowed to use all possible means to stop the referendum from being held. The call triggers another political and legal quarrel with the Spanish government that is inexorably opposed to recognize the right of self-determination of Catalonia. After a brief introduction on the political significance and transcendence for the state of a certain, suitable and potentially suitable demand of holding a self-determination referendum by one of its territorial units, this paper works out a democratic self-determination theory, where referenda plays a central role.
The paper analyses the institution of referenda as a democratic instrument and its suitability and appropriateness to settle territorial disputes and issues where national minorities are involved. At this stage, the piece works out two axes, firstly, it critically examines the opinions and the applicable international standards of the European Commission for Democracy through Law (Venice Commission) on referenda; secondly, it analyses the empirical data and information based on referenda of self-determination with and without the consent of the State. Then the paper analyses the relationship between referenda, as a democratic instrument and an updated version of the democratic and human right principle of self-determination. This democratic linkage is reinforced by a conception of the right of self-determination as a “right of rights” (Feldman), a mother right hierarchically superior to the principle of territorial integrity (ICJ advisory opinion on Kosovo). In this first section the paper also responds to some of the epistemological criticism that referenda has received after 2016, the “Annus Horribilis” with Brexit, the Italian constitutional referendum and the Colombian peace agreement referendum.
The paper goes further describing the Catalonia-Spain political issue that highlights many legal and political dilemmas, such as the boundaries of federalism; the undesirable clash between democracy and the rule of law; the limits of the principle of non-intervention; the definition of Nation and the principle of self-determination. After a brief historical introduction of the Spanish-Catalan relations the paper focuses on the events after the Spanish Constitutional Court ruling on the Statute of Autonomy of Catalonia in 2010, a decision that took four years to produce and that rejected all the most significant portions of the Statute of Autonomy.
The last section of the paper deals with the Catalan referendum on independence analysing in detail both the Spanish arguments to abort the voting and the Catalan thesis to hold the plebiscite. The section also examines the political alternatives and mechanisms to the referendum on independence in Catalonia and the boundaries that the principle of proportionality urges to both parties (paying special attention to the limits and content of art. 7 of the Treaty on the European Union).