“Who Would the Citizens of a Hypothetical Catalan State Be? A Democratic, Nationalist and Liberal Proposal on Citizenship”, by Pau Bossacoma
The purpose of this reflection is to analyse who might be the citizens of a hypothetical Catalan State resulting from a democratic, unilateral, peaceful secession within a context that ensures respect of the fundamental rights of individuals. This reflection basically has two intentions: one more explanatory and the other more propositional. Regarding the first, it will explore a range of controversial issues related to international law on the succession of States in matters of citizenship. This exploration should enable us to delimit the legal power of the new Catalan State in terms of the attribution and maintenance of citizenship. Even though it is common to believe that the competence of the State to attribute and maintain citizenship is exclusive and eminently absolute, it will be shown that international law is not sitting idly. Specifically, in terms of State succession, the principle of effective citizenship and the obligation to avoid statelessness are postulated as limits in opposite directions of that State domestic jurisdiction. The second intention of this reflection is to offer a democratic, nationalist and liberal proposal on the acquisition of citizenship in a hypothetical Catalan State. The proposal will be democratic because it will connect the right to acquire Catalan citizenship with those persons who had the right to participate and vote in the democratic decision on secession (including the referendum on secession and/or the latest Parliament of Catalonia elections leading to secession). It will be a nationalist and liberal proposal because it will draw inspiration from the doctrinal corpus of liberal nationalism. The proposal will be framed within the existence of a Catalan nation prior to the Catalan State. Therefore, the State will not create the nation but will allow it to properly flourish. Liberalism will frame the limits of Catalan nationalism and require it to be open, plural, inclusive, tolerant and permeable.
Throughout the lengthy process of drafting and approving the Statute of Autonomy of Catalonia and negotiating the financing model of the autonomous communities under the ordinary tax regulations for the period 2009-2014 (now subjected to an uncertain review process), Catalan society and the government of the Generalitat must yet again trust the syllogism (promise) which claims that by attaining a greater degree of decision-making authority on public spending (education, health, security, social assistance, etc.) they would get a correlative increase in budgetary resources from the Spanish State in order to properly meet the needs of the citizenry of Catalonia. In other words, if the government of the Spanish State agreed to shift the competences to deal with the public services inherent to the welfare state to the Generalitat de Catalunya, the principle of institutional loyalty and fiscal co-responsibility would ensure that it would also provide Catalonia with the financing needed to ensure a level of care and provision of public goods equivalent to the fiscal effort made by Catalan society.
“Legal scenarios for the European Union’s relations with new states emerging from a secession process from a member state”, by Alfonso González-Bondia
The current debate on the consequences for the European Union if there were a declaration of independence within a Member State seems to revolve around the presumably irrefutable fact of a sine die exclusion of the new State, in view of a set of juridical and political considerations. However, these considerations must be analysed in greater detail in order to clarify on a debate which has become excessively polarised, influenced by the zeal to proffer arguments in favour of or against independence.
In order to determine what the legal consequences of a situation of this kind might be, we shall analyse four clearly interrelated issues: the identification of general international legal norms or European Union legal norms which regulate the succession of States within international organisations; the European Union’s current position on succession matters regarding the organisation and especially the case of secession within a Member State; the factors that the European Union might bear in mind when responding to a request for succession with member status for the new State that emerged from the secession from a Member State; and finally, the European Union’s possible responses in the case of secession within a Member State in terms of the succession of it member status within the organisation.
If the right to decide is understood to mean the individual right of the citizens of Catalonia to express themselves collectively on the possible secession of the Catalan territory from Spain, this right is recognised in Article 20 of the Spanish Constitution (SC) under the designation of freedom of expression; moreover, if this right were to be exercised, for example through a popular consultation, it would in such event entail the exercise of the fundamental right recognised in Article 23 of the SC, that is to say, the right of all citizens to participate directly in public affairs.
Consequently, what has been defined in Catalonia as the right to decide is nothing other than a formulation of rights pre-existing constitutionally in a democratic State, dressed in a new attire. Without considering whether or not the purpose of proclaiming the right to decide is to effectively establish an independent State, this right has as its content, and consequently grants as a set of faculties to their holders, the power to express collectively the individual positions of these holders with respect to the territorial future of Catalonia as a political community. Moreover, this collective positioning must reach its addressees, primarily the public authority of the Spanish State, without obstacles or impediments. Likewise, as will be seen further on, the right to decide does not grant to its holders the power to make unilaterally a constitutional change or break, but rather it grants the power to have the freely expressed majority position taken into consideration by the addressees thereof if such position runs counter to the constitutionally established territorial order. It therefore entails, in the end, the right to initiate a change of the constitutional order and, in the specific terms in which it is formulated in Catalonia, a change in the territorial configuration.