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.

Continue reading “The Moral of Sovereignty”


Absolute Devolution

Barcelona a Prim, Ciutadella Park

“Absolute Devolution” is the fourth 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. This essay characterises power.

The Battle of Ciutadella continues in perpetuity. Sure, they stormed the gates. But only to raise both flags upon Prim, the Catalan-born architect of Spain’s 1868 Glorious Revolution, the subsequently assassinated herald of a particularly turbulent period of political experimentation, from monarchy to aristocracy, via canton to federation, and then back to monarchy. The Iwo Jima moment captured by no one, because no one hopes for six years of tumult to restore the initial state. Sure, they were there. The core Madrid media all but glued to the stage behind, where the “Spanish” (many, but by no means all, Castilian) crowd politely listened to speeches of unity. The more separatist (Catalan and Basque) media camped outside the parliament ahead, where a dozen vans of “Mossos d’Esquadra” (Catalan police) waited apprehensively behind barricades for a riot that never materialised. Even the new-left-biased “Sexta’s” interest waned at the dearth of televisual anger. All with a story to tell, just not this one.

Bias is truth, because – in state – knowing is social. The disunity of a people, a state, reflected in the distribution of biases, the breadth of truths. To bridge disunity is to become an observer with no tribe. Hard enough within a state, ’tis the bane of a foreign correspondent, already lost between the language (as culture) of their audience and the language of that on which they report. Now transpose philosophies, and add a final twist: The external projection of an internal certainty, for an internal which is inherently not-so-certain. Welcome to Spain. Or in the ambiguity of Catalunyian, “Hola República Suspensus”, which roughly translates into English as “please see terms and conditions” – and into the Corsican separatist French of Charlie Hebdo as, “nous exigeons un debat”. These essays are thusly biased, not least by a language that has come to betray its assumptions – a hope of communication that is necessarily never quite realised.

British policy-making is causal and predictive, as befits its dominant philosophy. Policy is analysed or discussed, the method nuanced by the government of the day, then fixed in law. The aim of the process is to implement a robust piece of legislation, not “bad law” full of ambiguities that subsequently require judicial review or referral back to the legislature. This practice presumes a degree of stability or predictability in the target of the policy, and thus inherently struggles to manage rapidly-changing policy areas. Traditionally most obvious in technology, now the bane of a Brexit process that embodies both instability and unpredictability on a huge scale. The pragmatic short-term strategy of British government has been to centralise powers, so that it is best able to exert control over that which it cannot reasonably hope to legislate robustly upon. Brexit’s expected “return of powers from Europe” has thus stalled the devolution of powers promised in the wake of the 2014 Scottish referendum on independence. Not just for Scotland, but for the less obviously separatist regions of England, especially in the North – those that had progressively seceded power to the Place of Westminster during the 20th century, power that, in the 21st, Scotland had shown was possible to take back.

At its root, Spanish policy-making is far more fluid than in Britain. Spanish legislation is more solid than raw policy debate, yet often retains fluidity, as if a live trial upon society: Laws that fit society gradually take on a popular certainty, while those that cannot be accommodated by the social order are gradually reworked. The Spanish legislature is considerably less dependent on absolute power than the British, because it rarely has to enforce anything upon its society. A sense of absolute power is only important in the Spanish state’s dealing with the external. International law and relations presume sovereignty, absolute dominion, even if the reality within is more complex. The European Union routinely strains this structure by its reliance on the supposed absolute power of sovereign member states to implement policy directives, with no particular regard for the quirky transactional structures of policy-making within states. European policy directives that Spanish society can’t easily accommodate are implemented in a state of flux. The implementation of the European Union Services Directive to Spain’s taxi sector provides an example:

The 2009 Services Directive’s principle of “freedom of establishment” inverts the Spanish social principle of “visto bueno”, to ask permission beforehand. Unfortunately that inversion was not first applied to government, which continues to operate on the implicit assumption of “visto bueno” – that government will be given the opportunity to fix problems in law before they actually become problems, exactly the opportunity that the principle of freedom of establishment denies them. Now add a taxi business operated on the traditional principle of “autogestión”, somewhat akin to an extended family – its operations protected from other (competitive) agents by locally-administered regulation, built on three tiers of Spanish legislation (Law, Regulation, and Order) and often further augmented by local Autonomous Community legislation. What was thus unlikely to be a simple or socially acceptable policy change was none-the-less implemented with almost naive simplicity: A historically niche class of taxi licence officially named “arrendamiento con conductor”, but colloquially called VTC (“Voiture de Transport avec Chauffeur”), was reclassified as discretionary transport, much like a coach hire. That should have created a pre-booked “private hire” taxi market alongside the existing on-street “hackney carriage” market. In the (then) coming age of Uber and Cabify, services which would make pre-booking (via mobile phone application) as easy as hailing a cab in the street, both markets would merge. VTC licensing had previously been intended for limousine-style operations, far less prescriptive in its regulatory requirements than for regular taxi operations, but limited to a ratio of 1 VTC licence for every 30 regular taxi licences – a limit the reclassification theoretically removed.

Many autonomous communities, notably Madrid, issued new VTC licences, yielding different degrees of liberalisation in their respective local taxi markets. In Catalunya, nothing much changed. The region’s government, the Generalitat de Catalunya, continued to ignore new taxi licence applications, much as it had done for the previous three decades. Prior VTC licences became more flexible, but insufficient in volume to support the envisaged competitive market. The Generalitat’s head of transport merely acknowledges their “restrictive interpretation of the law“, referring to the contentious test of “underlying consumer demand” which a 1998 Order had arbitrarily defined as the 1:30 ratio (of VTC licences to regular taxi licences). Unfortunately such a fixed definition of “consumer demand” cannot reasonably be interpreted within the terms of the original parent Law – a law which must justify regulation within the Constitutional state, and thus ultimately takes precedence over an incompatible Order. So taxi legislation had already been in flux for 11 years prior to 2009. Arguably the entire policy approach had been misguided since at least 1987, when the Law was made compatible for European Economic Community membership: The Law emphasised econometric passenger demand, built on a systems theory conception of transport that de-humanises supply, when the prime policy requirement was to regulate taxi drivers’ working conditions – specifically drivers’ sense of ownership and security, to counter the excessive variability of their work patterns – in short, to maintain drivers’ sanity. European Union technocratic economic policy has consistently failed to understand this prototypical “gig economy“, both Commission and Parliament still struggling with taxi regulation. In the meantime “gig” workers in Barcelona’s internet-era food delivery businesses have already started edging toward the locally familiar model of cooperativism, in search of “economic sovereignty”.

In 2013 the Spanish government acknowledged the principle of “autogestión” – in effect, acknowledged the Spanish social order – and applied the historic 1:30 ratio to the Law (LOTT). Except the ratio had not previously been written into the Law, and it took another two years to modify the more detailed Regulations (ROTT) and establish a consistent body of legislation. Albeit for a now inconsistent reality: Since taxi licences are permanent, even transferrable, the 1:30 ratio could not be retrospectively applied in regions where it had been exceeded after 2009. Indeed, where previously exceeded, the actual ratio would likely forever exceed 1:30 and thus no new VTC licences would ever be issued again. Speculation ran rife, especially around contentious (unsuccessful) applications made between 2009 and 2013 – and perhaps also between 2013 and 2015, a particular messy period on which different regional high courts have reached different judgements. In Catalunya alone, thousands of applications are stalled pending the final judgement of the Spanish Supreme Court – awaited since July 2016.

In effect, the judiciary has been left to determine the balance of policy, a policy even the Spanish competition authority (CNMC) is reportedly split on. With a blurring of policy and law comes a blurring of political and judicial power, especially apparent at the higher echelons of state, where the risk to Spanish society of power becoming tyrannical is greatest. A similar pattern can be found within the structure of political power: As the Catalan crisis deepened, the executive government sought greater consensus within parliament than was strictly required for its governing majority – yielding to the policy concerns of the new-right Ciudadanos and old-left PSOE. The closer to the heart of the state issues become, the more blurred the three core institutions of power (judiciary, parliament, and government) become – an in-built protection against the rise of absolute tyrannical power. The same cannot be seen within Catalunya’s Independentist process because the structure is inherently unable to process a separation from itself – Constitutional Spain has no capacity to leave itself.

Modern Spain’s method of policy-making is no accident: The Spanish Constitution enshrines the “development of fundamental rights and public liberties” in Organic Law. Organic law is essentially a philosophical construction that allows the thing to be based on itself, a principle common to the founding charters of much of the United States, famously guaranteeing the rights of the people, in the people. The fiat currency of law, Organic law is ultimately based on trust. Spanish Organic law thusly emphasises competency, not hierarchy. Humanity, not divine right. Where the unity of Americans can lean on history (inverse prediction) to define “the people” as a continuation over time, Spanish unity has no such luxury: As concluded by 1714 and All That, ilusión is to be lived, not lived in the past. This societal need for a living constitution was moderated by the addition the monarch and military as living defenders of the unity embodied in an otherwise increasingly historic text. Unity is state, because knowing is social. A theme explored further in the next essay, The Moral of Sovereignty. The hierarchical (God-given or feudal) nature of traditional monarchy never intuitively matched the (structural or philosophical) autonomy of modern Spain. While in 1978 the monarch served to transition Spain out of dictatorship by preserving noble entitlement (the social order inevitably frames governance), the monarch’s constitutional role was always likely to grow awkward. Both monarch and military have transpired to be unpopular in Catalunya – the monarchy popularly considered frivolous, the military oppressive. Neither evokes the intended sense of unity. Their involvement may thus make the Spanish Constitution more vulnerable, not less.

Trust applies both internally and externally, which is where the concept of Organic law in the 1978 Constitution melds with the traditional idea of Spain (described in 1714 and All That). That idea maintains different internal and external perceptions, thus what appears absolute to the external, can remain fluid to the internal – the paradox held in the idea of Spain. Independently, each of these philosophical constructions has historically been robust – Organic law in the United States, the idea of Spain for Spain. The combination of these two constructions in modern Spain, each with its logical vulnerabilities, has a complex interplay:

Spanish citizens trust in Constitutional Spain as they trust in themselves, reflecting the broad pattern of Organic law. Yet as explored in Patria and Patrimonio, the transactional model of responsibility within state is functionally broken, and in complex policy areas citizens are trusting to little more than a void called “state”. The common physicality of state should enable transaction from the small-scale family model to the large-scale nation, but this physicality too often fails. “Simulacres et Simulation” are more indicative of Catalan societal reality, whose intensity the formal structured political state cannot match in physicality. The emphasis on the physical within the political state stems from the idea of Spain, which holds the external in ilusión, and rewards participation in the political state with the manifestation of such ilusión. The contention is that this manifestation is physical to avoid confusion with society itself – more specifically to retain the idea of Spain’s fundamental demarcation between internal (as social simulacres) and external (as physical ilusión). A political state operating solely at the functional level of its society could not maintain such a demarcation. The idea of Spain thus inhibits the transactional state which would be ideal for trust in Constitutional Spain. However the idea of Spain cannot be relinquished without removing its philosophical protections. Based on contemporary events, those philosophical protections are critical to the normal function of Catalan society.

Such analysis is flawed by its narrow logic and presumptive interpretations, but gives a general indication of the interplay between the two philosophical constructs that seem to guide modern Spain. The Act of Referèndum both admonished Catalan trust in Constitutional Spain and fatally exceeded the idea of Spain. The expected model of policy-making unavailable, the state dropped into ambiguity. In the absence of an alternative philosophical project, Catalunya lists precariously in unfamiliar waters. Her Independentist manifest still expecting sight of the promised land. And all the while, storm clouds gather across the Iberian sea.

Continue reading “Absolute Devolution”