The Moral of Sovereignty

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“The Moral of Sovereignty” is the fifth essay in a sequence that explores the current Catalan independence process. The first essay introduces The Act of Referèndum. The second, on hope, 1714 and All That. The third, Patria and Patrimonio, on state. Absolute Devolution, the fourth essay, on power. This essay characterises condominium.

“Spain tells UK not to lose its cool”, glanced the Guardian. “UK accused of losing cool … by Spanish minister”, gawked the BBC. “Spain taunts Britain for losing its composure”, glared the Sun. In the “Did you spill my pint?” prelude to the perennial pub brawl that is Gibraltar, only the reasonable protagonist, Spanish foreign minister Alfonso Dastis, had reason to be confused. Lord Howard’s evocation of Margaret Thatcher’s military defense of the Falklands (Malvinas) hardly evoked the reasonable tone with which Spain had become accustomed to dealing with its European partners. A tri-century grievance born of the same succession war as 1714 and All That. A rock whose thirty thousand residents remain fiercely loyal to both Britain and Europe. And now a very particular problem for Brexit, the United Kingdom’s anticipated exit from the European Union.

Gibraltar is reasonably considered a colony within the European Union because its territorial status as a British Overseas Territory is shared with an array of small colonial outposts, all internally autonomous but reliant on United Kingdom foreign policy. Unlike the Crown Dependencies (Isles of Man, Jersey and Guernsey – those within the broad definition of the British Isles, but not the United Kingdom), Gibraltar is not part of the European Union Customs Union, but is part of the European Union: Gibraltar shares its European Union membership with the United Kingdom, although Gibraltar’s autonomy means European directives have to be specifically passed by Gibraltar’s legislature. Such a complicated arrangement, for so few people, inevitably perpetuates its own exception – an exception the likes of which that none could reasonably establish afresh. The United Kingdom’s Brexit thusly also applies to Gilbratar, regardless of the will of the people of Gibraltar. While colonial status implies a genuine claim to self-determination, and hence a theoretical return to Europe as an independent state, that would force an almost impossible choice on Gibraltarians, apparently between Britain and Europe.

In 2002 the British government attempted to resolve Spanish claims by proposing the shared sovereignty, condominium, of Gibraltar. The concept was not so unfamiliar to Spain, even if the only territory it currently shares (on a six month rotation with France) is a small uninhabited island in the Bidasoa river. Catalunya’s Pyrenean borderlands contained several oddities: Andorra’s sovereignty was shared after 1278, albeit as a suzerainty – a vassalage offering tribute to both the Count of Foix (later France) and the Bishop of La Seu d’Urgell (later Spain). The arrangement effectively lasted until the French revolutionaries of 1793 renounced their share, although Andorra wasn’t admitted to the United Nations, and thus definitively sovereign, until 1993. A similar conflict was resolved differently in Val d’Aran, which in 1313 swore fealty to the Crown of Aragon (later Spain) in return for the valley’s local autonomy – an agreement that held until 1834. And again for Cerdanya, which was partitioned by the 1659 Treaty of the Pyrenees to leave Llívia (the ancient capital of Cerdanya) surrounded by France – albeit only a mile from the principal bordertown of Puigcerdà, and thereafter a tough border to enforce. All three examples were defined by the disagreements of surrounding dominant sovereign powers, but in each case the actual outcome was locally pragmatic, as befits the reality of Pyrenean geography. Such pragmatism acknowledges the de facto, the situation in fact or in practice: For example, an Aragonese monarch may have had a de jure (in law) claim on Val d’Aran, but since the valley was inaccessible from the south during winter, de facto Val d’Aran functioned with a degree of autonomy, and it was eminently sensible to acknowledge that reality.

The idea of shared sovereignty for Gibraltar was overwhelmingly rejected in a referendum, ostensibly because Gibraltarians did not wish to be “Spanish” – a view thus far unchanged by Brexit. Spain may justifiably be considered the enemy, but this is primarily a de jure fear. De facto, Gibraltar is strongly influenced by adjacent areas of Andalucía: 12 million people visit Gibraltar each year, daily visitor numbers roughly equal to the entire resident population, indicative of high economic and social inter-dependence. Likewise, Gibraltarians are far more culturally mixed than their British colonial status may imply, as likely to carry a British name as a Spanish name. Gibraltar’s “Britishness” is necessarily overstated to foster cultural unity – a direct reflection on the contemporary dominance of sovereign power, that the pragmatism of local coexistence is so readily overwhelmed by the power structure of national authority. So while a British-Spanish condominium would reflect the local character of Gibraltar, the very involvement of such sovereign powers now renders the feudal pragmatism of the Pyrenees impossible.

The rejection of shared sovereignty reflects a wider trend in international law, where condominium has become the exception for the awkward cases, not the norm: Deployed by treaty or convention to territories with no intrinsic social complexity, such as Antarctica or the deep ocean seabed, or to manage states during transition, typically post conflict or colonialism. Catalunya’s contemporary state of ambiguity, described in Absolute Devolution, is not a traditional condominium: Not just because it lacks an agreed resolution, but more fundamentally because The Act of Referèndum emphasises the relative unimportance of territory.

As Lassa Oppenheim highlighted, “a state without a territory is not possible”, because since 1648 international law has followed the principles of the Peace of Westphalia, which resolved the European conflicts of the Reformation, and formalised early modern understanding of state as that territory belonging to a ruler. Any alternative notion of state, such as one that reflects its people, must be retrofitted onto a geographic territory: Westphalia’s territorial presumption is increasingly arcane, even for modern democratic, self-identifyingly European, virtually connected, Westphalia. As argued in Patria and Patrimonio, this definition of state is firmly linked to Enlightenment thinking. Spain had failed to dominate the early modern intellectual hegemony, her global dominance usurped by the Dutch, and was thus forced to internalise her social (knowledge) model within her territory and present that territory to the wider world as an absolute power, a Westphalian sovereignty. The idea of Spain, as explored in 1714 and All That, provided an appropriately robust structure – an internally liberating bouncy castle and an ilusión of the external – an external that could theoretically never be achieved.

Independence from Spain necessarily breaks the idea of Spain for that which becomes independent. In the most basic scenario – the continuation of prior societal norms as a new independent state – independence requires the idea of Spain to be cloned locally. That implies a transitional period, during which the independent state exists in the Westphalian world, but is not yet adapted to it: Catalunya risks exposure to the actual external its society had previously been protected from by the idea of Spain, and requires Catalunya to behave appropriately, to exude control, quite different from the internal bouncy castle of Spain. However, the state of ambiguity is inherently self-transitioning, since both states are simultaneous within – change does not occur at one moment, nor is the whole in flux at once. The nature of within is social, focused upon that area of social knowledge best able to readjust: So long as state remains conceived with the intensity of family, and does not fall in the void in transactional responsibility that bedevils the Spanish political state, any changes can be managed with efficacy. Thus change is through the ambiguity of both, not the objective cause and effect of a singular revolutionary act. The familiar philosophy of the idea of Spain is cloned without leaving the comfort of home, sparing much of the trauma that normally accompanies the birth of a sovereign state.

The theoretical weakness of that scenario lay in what is cloned: The idea of Spain manifests the external in the physical, a physical which apparently cannot be rendered in ambiguity, and so the independent state will tend to conflict over the same physicality as the Spanish state. However both states share the same concept of the idea of Spain, where the physical is relatively unimportant in the social model. The physical has always been the common domain in the political state, and thus the physical can also serve to counterbalance two concurrent political states: More competition than conflict, this balance of states serves the function of a Quantum ballot of the polis – both states perpetuate primarily in social simulacres, their relative support manifest in the physical. While all that may sound exotic, it is little different from the practice of many modern democratic states, albeit without the veneer of singular power. Spain is already highly developed in this regard: Its autonomic policy-making process has almost no reliance on absolute power, while its legal structure bridges a chasm between power and people, affording considerable flexibility between corpus of law and enforcement. The loss of the veneer of singular power would not primarily be a problem internally. It is simply not how sovereign states are supposed to function, and thus primarily confusing for the external.

The already highly autonomous Catalunya gains almost nothing from Westphalian independence, since the territorial state remains more-or-less the same. Little more is gained than the right to be called a nation and register a claim on Catalunya Nord. Full fiscal autonomy is moot within the monetary union of the Eurozone – greater responsibility for debt may even disadvantage an independent Catalunya. In spite of appearances, the Westphalian independence is not the type of independence sought by Independència. That confusion lay in the prior tradition of manifesting the external in the physical, which thus over-emphasises the physical, territory, in matters regarding the external. But as this sequence of essays has demonstrated, the physical is relatively unimportant to the function of Catalunya’s society. The consequent unimportance of Westphalian sovereignty allows Catalunya’s independence movement to safely deploy it as a charade – a game of perception, the demos at the heart of Independència. As an internal rebellion, Independència has no realistic prospect of success. But by embroiling the European Union, on terms which the European Union cannot readily respond, Catalunya strengthens its hand. A game hitherto played as Spain is now primed to take international law – and perhaps even the Enlightenment concept of state – by surprise.

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The Act of Referèndum

Campaign posters for the Catalunya 1-O Referèndum

Foreign observers are easily confused by the Catalan referendum, the supposed 1st October 2017 (mischievously notated “1-O”) self-determination of the hitherto Spanish region of Catalunya. The British libertarian press, whose readership naturally warms to stories of plucky little Catalans struggling against the oppression of the Spanish Empire, is invariably befuddled by the lack of political plurality in the process. The very observed absence of such plurality, on a topic that routinely divides the population of Catalunya, itself reveals the “Referèndum” as the action solely of the independentist cause, not the holistic process of resolving the actions of all parties, which is what the word referendum usually indicates. The linguistic deception hidden in plain sight remains remarkably enduring propaganda.

The Referèndum script is similarly obvious to those who would see: The Parliament of Catalunya is the elected assembly intended to legislate for the autonomous region of Catalunya, to legislative principles established by its Statute of Autonomy, which derive from the post-Francoist Constitution that embodies Spanish democracy. The Parliament has no power by Statute to legislate on independence from Spain, but that doesn’t physically stop the Parliament from passing laws to establish both the referendum and the template for an independent state. The Spanish Constitutional Court may promptly declare the legislation unconstitutional, but no punishable offense occurs until a law is acted upon. This is a common principle in Spanish law, and to a good degree wider culture (reaction, rather than prediction), but is reduced to farce by an act that frees itself from the authority binding it. The deception at the heart of the Spanish Constitution, its unchallengeablity, challenged. Clever Catalans.

In the meantime a wild goose chase commences, in which the Spanish authorities attempt to stop acts related to the referendum. In practice that results in a lot of incendiary media coverage, as the Guardia Civil (one of the national Spanish police forces) impounds harmless pallets of contraband referendum publicity. The detention of the civil servants responsible just increases the stakes. Such Spanish oppression of human rights, free speech, democracy, autonomy, you name it, is actually in defence of just that – the Constitutional imperative that is protecting those principles on behalf of the entire Spanish population. But because the crime is called Referèndum it looks quite the opposite. Again, the deception hidden in plain sight.

Spanish adherence to Constitution is not dogmatic pedantry. Not merely a convenient mechanism for Spanish government to counter the separatist threat without actively engaging in political discourse. As the collective memory tells it (which is not always the same as what actually happened), all the communities comprising Spain fought (Francoism) to establish democracy, and it is that collective contribution that is now being disrespected by the Catalans. An insult to both modern democracy and the shared notion of equality between communities, a notion found in the 1812 liberal constitution of Cádiz that continually bubbles to the surface without ever properly overcoming absolutism. This is no small reconciliation that you ask.

Assuming the rule of law holds its nerve until polling day, the choice is expressed primarily in attendance, not the position of the cross on the ballot paper: It is a conflicted, certainly brave, possibly stupid, citizen who knowingly performs an unconstitutional act in order to register, in effect, their support for the very constitution they’ve just broken by their act. That’s the kind of moral legal argument that won’t trouble most of the populace of Catalunya, but it serves as a stark explanation of why the Referèndum is for those that wish to vote Sí, and why a genuine referendum could only be organised under the auspices of the Spanish Constitution. Albeit, as explored later in this text, logically impossible to organise as the idea of leaving Spain from within Spain undermines the very idea of Spain. Details, details. Surveys typically suggest a clear majority of those against independence will not vote, yielding a strong vote in favour of independence on a turnout of 50-60%. Turnout isn’t considered by the law (of the Parliament of Catalunya) that creates the independent state two days after a yes vote (Catalan politicians typically cite constitutional changes passed on similarly low turnouts, although that rather understates the magnitude of this change). So, like clockwork, Referèndum will deliver the Brave New Republic of Catalunya in the middle of the first week of October 2017. Historians may later judge this Referèndum to be a coup. A propaganda coup, obviously, because a coup d’état wouldn’t be very democratic.

Cue the musica epica, as the Spanish tanks roll down the Diagonal, and those plucky little Catalans make one glorious last stand against their oppressors… Simultaneously resolving the independentists’ problem with Spaniards – and Barcelona’s problem with turismos. Such legends are more attractive in the telling than the living. If anyone in Catalunya genuinely has the stomach for that, again, they are not obvious in the mainstream of independentists: Those whose demonstrations encompass a family picnic in the park, before standing politely where they are told and gesturing appropriately at the camera when instructed by the director. More plausible to picture a pair of rutting Stags, mammalian heavyweights keen to assert themselves in the herd, yet not so keen as to lose their antlers, and well aware that when the rut ends they’ll have to learn to live with one another. The Familia España may have a few more fraught years of Catalan angst to deal with, but ultimately All’s Well That Ends Well. And no, that doesn’t imply the return of “Catalunya Nord”, as Catalunya’s public television clone, TV3, affectionately refers to (contemporary French) Roussillon.

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