A nation of nations? A reply to Joseph H.H. Weiler

Abstract

The participation of Professor Joseph Weiler in the debate on the conflict raised by Catalan separatism in Spain and, therefore, his response to López Bofill’s article, “Hubris, Constitutionalism, and ‘The Indissoluble Unity of the Spanish Nation,’” and to mine, “A Reply to Hèctor López Bofill,” is full of good intention. It intends to be balanced and tries to find a reasonable and adequate solution to the serious problem of Catalan separatism, at least from a formal—constitutional—point of view, but also from a moral and ethical perspective. His vision is, therefore, rational, formalistic, and normative. And, perhaps for this very reason, although well-founded, his vision does not comprehend the real dimension of the problem, which goes beyond the conceptual aspects, further from the mere nominal question of how Spain is defined in its current 1978 Constitution or how Catalonia should be conceptualized, also from the constitutional point of view. Basically, Professor Weiler’s argument revolves around three parameters: the concept of Catalonia as a nation; the inappropriate or unjustified Catalan separatist claim; and the inadequacy of the constitutional definition of Spain as an indivisible Nation. In regard to the first aspect, Prof. Weiler has no doubt in describing Catalonia as a nation. He says: “the Catalans are a textbook example of the notion of a People, a Demos, a Nation . . . in the full sense as understood by international law”; and he adds: “as such entitled to the right of Self-Determination.”1 And, in categorical terms, he completes his argument, rebutting mine, by saying: “It does not quite matter in my view, as it seems to matter to Professor Bar, what the original national identity of Catalonia was. These things evolve. There used to be a big debate, whether the Palestinians could be thought of as a distinct people or nation. Who can doubt that for at least the last fifty years.”2 There are thus two implicit problems in this question: one is the consideration of Catalonia as a national entity, and the other is the existence of a right to self-determination linked to that consideration of Catalonia as a nation. Concerning the conceptualization of Catalonia as a nation, I wonder what “textbook” Prof. Weiler refers to, since hundreds of books and articles of all kinds, from various and frequently contradictory perspectives—historical, political, legal, ethnic, philosophical—have already been produced on the concept of nation, among which it is difficult to find a single definition of it that could be commonly accepted at least by a majority of the members of the above-mentioned branches of the social sciences. And, in what refers to international law proper, that which derives from the United Nations system, there is not in it a single defining line of what is a nation. There are constant references to terms such as “peoples,” “countries,” colonized territories (“non-self-governing territories and trust territories”), “national or ethnic, religious and linguistic minorities,” and their rights; but even here there is no clear concept about what the defining profiles of these terms are. What is relevant here, from the point of view of the right to self-determination, is the existence of an occupation, a colonization, the oppression of a people by a foreign state. In fact, the problem is that the concept of nation is not univocal or neutral; it is, by definition, a political and utilitarian concept, invented—in its current meaning—in the nineteenth century with the specific objective of justifying the creation of new states, either by aggregation or by separation of territories belonging to other pre-existing states; territories with a common human component, generally distinguishable by a shared language and culture. And, from the second half of the twentieth century on, the concept has been used for the purpose of allowing the liberation of peoples subjected to colonization and their transformation into new states. That is to say, the concept of Nation is a political one designed at achieving a specific end: the formation of a State. So much so, that the concepts of Nation and State end up being interchangeable and meaning the same. Not in vain “Nation”—not “State”—is the term that the United Nations uses to define itself and in all its basic legal texts—after World War I, the “League of Nations,” and after World War II, the “United Nations”—although, in reality, those who have formed and are part of these organizations are, in proper terms, states and not simply human groups not politically organized. And, of course, the concept of “nationality”—not “stateness”—is used in international law to indicate the legal belonging of a citizen to a state. And the problem is that this is how the Catalan separatists interpret the concept of a Nation: a people with its own and homogeneous identity, which aspires to be a sovereign and independent State and which, given that—in their own interpretation—it is currently occupied—some say oppressed and colonized—by another State, namely, Spain, it demands the exercise of the right to self-determination which, according to Prof. Weiler, is recognized by international law. Prof. Weiler, however, says that the “political view of the relationship between Nation and State—One Nation=One State—which takes us back 100 years to the end of WWI . . . today has lost, in my view, much of its moral force”; to which he adds: “In my understanding of international law, the right to self-determination implies a right to secession only under circumstances which do not apply in the Spanish situation.” Therefore, although from a legal point of view, Prof. Weiler recognizes the foundation of the Catalan separatists’ argument—being a Nation—and the consequent right to self-determination, he immediately, from a political and conjunctural point of view, denies them the exercise of this right, because he understands that such exercise “today has lost . . . its moral force,” and because the circumstances that would justify it do not exist in Spain at present. Still on this question—the concept of Catalonia as a Nation—it is very surprising that Prof. Weiler uses the Palestinian people as an example of a process of identity formation comparable to the process of formation of the identity of the Catalan people. I would say that we face here two processes that are inverse and, therefore, contrary. Catalonia is today a plural reality, with a diverse sociological component, whose plurality, far from disappearing, forming a homogenous whole with increasingly precise profiles, has expanded and become more and more heterogeneous. In this sense, Catalonia not only includes diverse geographical areas with their own economic and social structure, but also areas with different linguistic and cultural components. For instance, the Statute of Autonomy of Catalonia specifically recognizes the existence of the Aran Valley, as a distinct “Occitan reality endowed with cultural, historical, geographical and linguistic identity,” which it “recognizes, protects and respects.” In addition, there are even human groups with a similar (if not identical) culture and language to that of the Catalans, which are not included within the territorial and political borders of present-day Catalonia—what the Catalan nationalists call països catalans, Catalan countries. Furthermore, Catalan society has been enriched over the years—mainly throughout the last 100 years of its history—by successive waves of immigration which have diluted that pretended uniformity and homogeneity of the Catalan people; first, immigration from other regions of Spain and, in recent years, immigration coming mainly from other Eastern European and African states. And this is precisely what has led the nationalist and separatist authorities of Catalonia to carry out a series of identity policies, fundamentally in the field of education, tending to artificially produce and enforce that uniformity, or linguistic and cultural homogeneity. And this is also what inspires the intolerance and daily harassment with which the Catalan nationalist authorities and the radical separatist groups punish any differentiation and all political dissent or deviation from the identity-nationalist-separatist objectives. Furthermore, now in strictly political terms, it is also clear that the Catalan society, far from being a uniform, homogeneous one, is at most a fifty-fifty divided society between those who seek the independence of Catalonia and those who want it to remain as a part of Spain. Thus, in successive elections of all kinds—local, regional, national, European—from 1979 onward, only on very few occasions did the nationalist/separatist groups surpass 50 percent of the popular vote, while in the vast majority of cases it was the non-nationalist/separatist groups that got more than half of the votes. On the other hand, Catalonia is not only a plural reality, but it is also fully integrated, without any differentiation or discrimination, within the whole of the Spanish society, making it, for this reason, also a plural society. The basic institutions of the State—Parliament, government, courts of justice, army, police, national health, public administration at all levels, etc.—are absolutely permeable to all the human groups that make up the plural reality of Spain and are composed of people coming from all corners of the Spanish territory, whether Catalonia, Galicia, Basque Country, Castile, Andalusia, Valencia, or any other region of the State. This is further emphasized by the Spanish Constitution, according to which no discrimination among Spaniards “on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance” is allowed (art. 14). Concerning the right to self-determination, which Prof. Weiler recognizes for Catalonia, I cannot help but recognize that the right to self-determination of peoples is one of the basic principles that inspires the very formation of the United Nations (and thus it is enshrined in article 1 of its Charter). However, this right was then defined as a right recognized to peoples under colonization or oppressed by foreign powers, within the general framework of the processes of decolonization that followed World War II, but not as a right that authorizes the disintegration of already consolidated states, members of said Organization. Accordingly, this right was already established by the early Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the General Assembly Resolution 1514(XV), of December 14, 1960, which, although in its section 2 establishes that “all peoples have the right of self-determination,” in section 6 clearly states that “any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.” And this formula has been repeated in subsequent resolutions of the General Assembly of the United Nations.3 And, of course, in the Commission on Security and Cooperation in Europe’s Helsinki Final Act of 1975 (§ 1.a.VIII). What is relevant here is to underline that although the United Nations intends to preserve the territorial integrity of its member states, as we have just seen,4 international law limits this principle and ensures the primacy of the right to self-determination of peoples, which must prevail in those cases in which the states do not conduct themselves in compliance with the principle of equal rights and do not possess a government representing the whole people belonging to the territory without distinction as to race, creed, or color.5 Therefore, only in this case would the dismembering of a sovereign State—a member of the United Nations—be justified. This is what is called the “right of remedial secession.”6 So, according to international law, if Catalonia is a Nation and/or an oppressed people, without political representation and without recognized fundamental rights, it has the right to self-determination and ultimately to become an independent State. But, if Catalonia is not a Nation and/or an oppressed people, if it enjoys political representation and the full and judicially guaranteed exercise of fundamental rights—as is the case, under the current democratic and constitutional system of Spain, governed by the Constitution of 1978—it lacks the right to self-determination, in accordance with the provisions of international law. Moreover, it is not only that Catalonia enjoys political representation in the State and the full exercise of fundamental rights, but—as Prof. Weiler acknowledges—it also enjoys a broad political autonomy and a system of competences that surpasses by far that of many members of federal states, both in Europe and in other parts of the world. In this sense, if we accept the distinction that some internationalists make between the right to “external self-determination” as the right to become a sovereign State and the right to “internal self-determination” as the right to self-government or political autonomy within the State, there is no doubt that, in accordance with international law, Catalonia lacks the right to “external self-determination,” but it already enjoys and exercises daily—since it was granted political autonomy, in 1979—the right to “internal self-determination.” Concerning the inadequacy of the constitutional definition of Spain as an indivisible Nation, I cannot but agree with Prof. Weiler in his perception of Spain as a plural entity from sociological, cultural, linguistic, and historical points of view. That is precisely what led the drafters of the Constitution to recognize the autonomy of the “nationalities and regions” that make up the Spanish “Nation” in its article 2. In fact, the Spanish Constitution of 1978 adopts several formulas to define Spain—not just one—depending on the aspect of the political reality called Spain that it defines. Thus, Spain is defined in the constitutional text as “a social and democratic State, subject to the rule of law,” as a “parliamentary monarchy,” as a Nation (“the Spanish nation, the common and indivisible country of all Spaniards”),7 as a Nation of nationalities (“The Constitution . . . recognizes and guarantees the right to autonomy of the nationalities and regions of which it [the Spanish nation] is composed”), or as a people endowed with full sovereign power (“the Spanish people ratify the . . . Constitution”; “National sovereignty is vested in the Spanish people”). The term “people” is identified with the “Nation,” whose will is expressed through the Cortes (name of the Spanish Parliament) and, directly, through referendum (“The Spanish Nation . . . proclaims its will to . . . the Cortes pass and the Spanish people ratify the following Constitution”). Referendum that the Constitution enacts in general terms in article 92, for the ratification of political decisions of special importance, and also in other sections related to the Constitution of the Autonomous Communities, the approval or modification of the Statutes of Autonomy, the reform of the Constitution, and the possible integration of Navarre in the Autonomous Community of the Basque Country. This constitutional definition of Spain was not adopted in the constituent process in a frivolous or hasty manner and, of course, none of these defining formulas was adopted as an obsessed response (“hubris”) to the conflict created by Catalan nationalism, or as a concession to Francoism, as López Bofill maintains in his article and Prof. Weiler acknowledges somehow. On the contrary, the introduction of the term “nationalities”—in fact, the terms “nationalities and regions”—was an initiative of the communist—and also Catalan—member of the drafting team, Jordi Solé, which was immediately supported by the representative of the Catalan nationalists, Miquel Roca. They had though a slightly different perspective, since the communists intended to generalize the process of political decentralization to all the “nationalities and regions” of the state, creating by this a federal State, while the Catalan nationalists had mainly in mind to give a special autonomous status to Galicia, the Basque Country, and Catalonia, which, in their opinion, were the authentic “nationalities” of the Spanish State.8 But what should be highlighted here is that, for the drafters of the constitutional project, the term “nationalities” had the same meaning as that of “nations” since, for them, both terms served to represent the plurality of the Spanish Nation, which is composed of different languages and cultures. Thus, in the debate, terms such as a “Nation of nations” or a “multinational State” were frequently used to describe Spain.9 The problem then was not so much whether to describe Spain as a Nation of nations but whether the term “nationalities” should be included in the constitutional text at all, since there was tough opposition in some sectors. What is clear, be that as it may, is that those who defended the inclusion of the term “nationalities” in the constitutional text actually meant by this constitutional acknowledgment to reflect the plural reality of Spain, with the existence of different languages and cultures. “Nationalities” and “Nations,” for the constituent fathers, in this sense, were terms of equal significance.10 In fact, this cultural and linguistic plurality is now enshrined in the Preamble of the Constitution (“The Spanish Nation . . . proclaims its will to . . . Protect all Spaniards and peoples of Spain in the exercise of human rights, of their cultures and and of their languages and in article 2 of the nationalities and regions of which it [the Spanish nation] is composed”), and in article (“The other Spanish languages also be in the Autonomous in accordance with their of the different language of Spain is a cultural which be the of special and among And this is even more so, since none of the political groups in the constituent process at the any of those terms to the right to self-determination and the of Therefore, nations and nationalities for them had only that single and same it is also that a and radical of the Basque fact, the political of the to at the end of the constituent debate, an to the constitutional text in to recognize the right to However, the was since it was with the democratic and system that was being The then not so much the of to Spain as a “Nation of nations” in the constitutional Prof. Weiler the of of what those “nationalities” and In any case, the conceptual and the of a definition did not to a right to political autonomy of the “nationalities” but simply to recognize the sociological plurality of Spain and to the Spanish territories to define as as a or a the Constitution several to become an Autonomous Community and different of political on the followed to political but at the end of that the between the competences of the various Autonomous are In for the drafters of the Spanish Constitution, and the cultural and linguistic the same and their in the Constitution is the of their will to recognize the plurality and sociological of Spain and to it politically by of a broad and system of Nation is equal to State as recognized in international law, and to say that the Spanish Nation is indivisible is to that the Spanish State is that, in of being an of State, the Spanish Constitution to be through a constitutional in its article Furthermore, since the last of of the Statutes of Autonomy between and many of them define the Autonomous Community either as a or Country, Galicia, Andalusia, Valencia, as a or as a or three Autonomous do not any of these to define and In the case of Catalonia, its Statute of Autonomy uses a formula intended to what the Statute to be the will of the people of Catalonia to define it as a with the constitutional of Catalonia, the and the will of the of Catalonia, has defined Catalonia as a nation. The Spanish Constitution, in its second article, recognizes the national reality of Catalonia as a And, in this its article 1 establishes that as a exercises its self-government as an Autonomous Community in accordance with the Constitution and with this which is its basic Therefore, to say that the definition of Spain as a of nationalities and or that the of the of the Spanish Nation, are the of an of the drafters of the Spanish Constitution Catalonia, or a concession to the already Francoism, is but a clear of an and/or of a serious of how the constituent process was in Spain.