Sunday, January 20, 2013

Catalonia’s Independence: A Reply to Joseph Weiler

We reproduce Dr. Nico Krisch's piece on Catalonia's independence originally published in the European Journal of International Law. 
Joseph Weiler’s polemic on Catalan independence has certainly stirred up debate (see the comments on the piece), which is always helpful. But as much as I admire much of Weiler’s academic work, I find this intervention heavily misguided in substance, in part because of a misunderstanding of the reasons behind the Catalan drive, in part because of a misreading of the nature of independence claims in general. I write this having spent a significant part of the last decade in Barcelona, with a growing appreciation for the concerns of Catalans and of sub-state nationalism in general, which has certainly toned down my earlier, perhaps rather naïve cosmopolitanism that had little time for nations and borders.
Weiler laments a return of Catalans to ‘an early 20th-century post-World War I mentality, when the notion that a single state could encompass more than one nationality seemed impossible’, and he finds it ‘laughable and impossible to take seriously Catalan arguments for independence’ when they have a statute of autonomy. He thinks that all Catalans could possibly complain about dates back to the Franco period and before, and that today they should leave this behind, drop talk of independence and work out their differences with the rest of Spain. But the latter is precisely what they have tried for several decades, and with limited success. Spain’s 1978 constitution is an awkward compromise, born out of a transition from dictatorship. It stops well short of establishing a federal state and, despite Spain’s enormous cultural diversity, has many centralist elements. Catalans are a structural minority in that setting – and less protected than the Basques who achieved a more favourable position in and after the constitution. While it is true that they don’t face persecution or any kind of grave human rights violations, discrimination can also take more subtle forms and result in systematic disadvantages when it comes to appointments to public office, investment in infrastructure or the distribution of resources in general. And even achievements in linguistic rights are called into question when the Spanish government can declare – as it has recently done – that it intends to ‘hispanicise’ Catalan school children.
All this does not reach the threshold for remedial secession under international law. But is international law, state-centric and state-made as it is, a good guide for our normative approach here? Probably not. Political theorists are engaged in an extensive and sophisticated debate about the grounds for secession, and not many hold as restrictive a view as international law does. In fact, quite a few support a voluntarist position, which is based on the mere choice of the relevant collectives. On liberal grounds, this is similar to the arguments for leaving divorce to the choice of each of the spouses. Political divorce is, of course, not so easy, and it always raises the question of which collective ought to decide. But there is little reason to privilege the historically often arbitrary shape of existing states and force minorities to accept the decisions of a much larger group, which will often be hostile or at least indifferent to their claims. If different demoi compete, they will indeed need to work out the situation among themselves – but on an equal footing rather than in a situation of subordination of one to another.
Weiler’s attack on a ‘regressive and outmoded nationalist ethos’ also misses the point because most of our political structure – and especially international law – is still based on nationalism. It is just the nationalism of those nations that have managed to find recognition as states. Given that structure, it is not surprising that minority nations would also aspire to the main organisational form of self-determination – statehood. Moreover, it is weird to think that it is the boundaries drawn by (Spanish, French, German, etc) nationalism that should determine the feelings of solidarity of all parts of a country. Catalans have no doubt that they owe solidarity to Europe as a whole, but they don’t see why they should owe that much more to people in Andalusia than to those in Southern France (who, geographically and probably also culturally, are closer). On what side of a border you live is often a mere accident of history, and we need a more fine-tuned instrumentarium than the binary inside/outside of a state to think seriously about obligations of solidarity.



The European Union, in fact, is a project that should allow us to do just that. As the people of Europe grow closer, the state structure in which we live loses importance – both for institutions of political representation and for structures of solidarity. This is what we mean when we say that Germans should help the South of Europe not merely out of self-interest but out of obligation. Just as solidarity in Europe no longer stops at boundaries, it does not always come in binary fashion. There are many shades of it, and there are many shades of ‘we’ in the European polity. Thinking that the Catalans only know their very own ‘we’ would seriously misunderstand the position of most of them. They feel part of a broader ‘we’, but not necessarily a Spanish one. Many would be satisfied with a significant amount of autonomy in a truly federal state, and they seek independence only because the Spanish state has frustrated efforts in this direction consistently over the years. If another status were available, they would probably be happy to take it. International law doesn’t have much on offer, but the EU might be the place to invent intermediate forms.

But until we’ve done so, we should be careful not to jump to conclusions. The Catalan drive to independence (just as similar movements elsewhere) is not some form of ‘tribalism’, as Weiler has us believe. It is a form of democratic self-government, born out of frustration with the processes of a larger entity that often enough ignore the wishes and concerns of minorities. If we are committed to some form of democratic liberalism – to a respect for the freedom of individuals to choose their own lives and to determine their political fate – we’d better take it seriously. And, just as in Scotland and potentially in Belgium, we’d better understand it as an attempt at redrawing the internal boundaries of the EU, rather than as a move away from the Union.

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