On Catalonia, the EU, and the meaning of Sovereignty.

As I stated in the past (here for the British referendum on EU, here for the Dutch referendum on the Ukraine Association Treaty, here for the 2016 Italian referenda) I am really no fan of referendum. Catalonia makes no exception: surely the referendum is illegal and, perhaps, inopportune.

One may ask, however, whether the question of legality is the relevant one.

For legality is not an absolute principle but it is to be checked against a legal order of reference, and the act of secession is- by definition- the repeal of a sovereign legal order. A secession is precisely the the annulment of the legality of a legal order on a given territory, so by definition is both illegal from the point of view of the legal order of reference, and a-legal in absolute, since before the new sovereignty is established, no legal order of reference can possibly exist. On a pure inter-national anarchic system (without codified international law) it would have no sense to try to establish whether secession is legal for the legality has to be checked against the legal order of a sovereign, but there is no universally accepted sovereignty and hence there is no uncontroversial exogenous legal order. One shall note that the same applies, in fact, to wars: in a pure system of sovereign states, war is a-legal because it constitutes an attempt to break the hold of a legal order. Let’s assume that a war breaks out between France and Germany. One may well argue that the acts done by the French on German soil are illegal from the point of view of the German legal order, but the lack of mutually accepted sovereignty makes - in principle - no such legality test possible. It is meaningless to say that French law is Illegal in German territory, if that German territory is no longer under the jurisdiction of the German Sovereign; the legality of the actions in the occupied Germany cannot be possibly checked against the German legal order. The situation is radically different if a super-imposed, exogenous legal order exists, and we will discuss it later. So far, actions that pertain the creation and removal of sovereignty also pertain the creation and destruction of legal orders and jurisdictions, and therefore cannot be legally assessed under the legal orders and jurisdictions they create or destroy. They are sovereign acts, hence a-legal: As Carl Schmitt would say, “sovereignty is the power of deciding the state of exception”: the power of acting beyond the legal order. Since the Sovereign is so only if can decide the State of Exception, the act of deciding the State of Exception (i.e., of terminating a legal order) cannot be checked against the very same legal order.

The question we should ask is not whether the secession- and the possible occupation by Spanish army- are legal. Rather, we should ask whether they are legitimate. The legitimacy question cannot be easily addressed, for the prime instrument for that would have - indeed- be a referendum, which the Spanish government clearly fears, for it would have given legitimacy to an act illegal from the point of view of the Spanish state (but a-legal for an external observer). If there is no agreement, what ultimately decides whether a new sovereignty exists or not, naturally is the use -or threat of the use- of military means. Which is as much legitimate as the declaration of independence, because if we accept that self-determination is a “natural Right of Peoples”, we shall also accept that declaring wars, and signing the peace, is a natural Right of States. The risk of violent outcome in the Catalonian case is therefore very present, for ultimately a legal order remains sovereign only if it successfully exerts the monopoly of legitimate violence when contested. I’d stress here: the lack of super-imposed legal order makes the legality question redundant, therefore collapses the issue into a problem of legitimate action, under which assessment both a secession and a military occupation are legitimate. In other words, we need an external legal order to minimize the risk of seeing violent action.

The role of the EU.

As seen, as long we consider Spain and Catalunya in anarchic isolation, it is not possible to apply a principle of legality because there is no exogenous frame of reference. In absence of a legal order of reference, the question collapses on legitimacy grounds, which implies, ultimately, that the decision relies on the use of force. The European Union is, in fact, the key out of this messy room. The EU is indeed very well positioned to provide a frame of reference, not least because both the Spanish Government and the break-away Catalan government claim their allegiance to the Union. The Union could, and should, avoid that the issue of Catalan independence becomes of A-legal nature, by setting out principles to deal with internal reorganizations, legacy solidarity, and democratic procedures for within-the-EU secessions. By providing such frame of reference the EU would ensure that legality remains key to the system; that a legality test for referenda and secessions is maintained; that a neutral third-party (for instance, the ECJ) has the ultimate power of deciding on the legality issue. Only by establishing an external legal order of reference can the legality question being asked, and the EU is infinitively better placed than the UN to establish- within its boundaries- such legal order-

By doing so, the EU would also achieve a second extraordinary accomplishment. The first extraordinary accomplishment is simple to understand: For the first time in recorded human history, a process to shift sovereignty upwards is seemingly successful without the use of military means. We are not there yet, of course; but we are on track. And if it works, we will have demonstrated that the dream of a united Human Kind is possible without the use of violence: we would leave to humanity the demonstration that diverse human communities can aggregate in a larger one without conquest, occupation or coercion; Ex pluribus Unum. We will have successfully tested a social technology as important for the future of humanity as it was invention of writing, for it makes wars of conquest redundant. Furthermore, by establishing a legal framework for orderly secession and recomposing and legacy solidarity, the EU has now the occasion to pioneer the demise of another form of organized violence, those resulting from uncoordinated secessions and associated military response.