Unethical constitutions deserve no respect

A guest post by Al Skinner

Spain’s vicious authoritarian response to the referendum in Catalonia got me thinking about constitutions. The constant refrain from Madrid is that the plebiscite was in violation of the Spanish constitution, with former vice-president of the Spanish government Alfonso Guerra going so far as to declare that there can be no negotiating with the Catalan golpistas (“coupists”).

It is, in fact, essentially undeniable that the referendum was “illegal” and in violation of the Spanish constitution.

But here’s the rub: the constitution of Spain is itself illegitimate. But allow me to back up for a moment.

In light of Germany’s central role in the EU, I kept wondering how German politicians and media would respond to the situation in Catalonia. Surely, I thought, they would condemn Spain’s brutal actions even if there was no chance of the German government doing anything substantial. At least, I naively assumed, both state and press would rhetorically uphold certain core values. How wrong I was. Instead they’ve largely been supportive of Madrid, construing recent events as an internal Spanish matter.

The title of a recent article in the Sueddeutsche Zeitung newspaper absurdly declares that "Self-Determination is an Invitation to Dictatorship", another in the Frankfurter Allgemeine Zeitung explains "Why Spain is Doing the Right Thing", while yet another in the former publication baldly states that “There is No Unlimited Right to Secession".

The last article is an interview with one Christoph Vedder, who is described as an expert in international law. He explains that while the right to self-determination is enshrined in the UN Charter, this does not mean Catalonia has the right to an independence referendum. As I read the article my curiosity grew. How on earth was he going to square that particular circle?

Then came the sleight of hand. Vedder invents a qualification to the right to self-determination. It applies, he explains, only in cases of severe repression. So Kosovo’s independence from Serbia was OK. But Catalonia, being part of a democratic state under the rule of law, does not enjoy that right. For this expert, the Catalans’ right to self-determination is “exhausted” within the Spanish state. If this ideological contortion seems warped and ridiculous to you, then good – it is.

But why are these highly educated and no doubt in many ways liberal-minded Germans twisting common sense into such grotesque shapes?

I don’t think we have to look too far for an answer. This is essentially about power and authority. Existing states are averse to, if not terrified of, the implications of the right to self-determination. They don’t want to lose territory, population and resources. They don’t want a "diminished status in the world". And this brings us to the nub of the matter – the sheer infantilism of most contemporary governments. They care only about perpetuating their own states. The idea that this is about solemn commitment to constitutions is laughable. This is about the state and its ego. This infantilism, of course, leads to terrible ethics. Which is just what we're seeing in Madrid at the moment.

Vedder mentions in the interview that Germany too recognizes no right of its constituent parts to become independent states. But this is like saying, look, women are oppressed everywhere, so what are you complaining about? The fact that the German constitution, like its Spanish counterpart, flagrantly violates the right to self-determination is nothing to be proud of. It should be a source of deep shame. The German commentators alluded to here are being good little servants of the constitution, in a twisted, deeply conservative sort of way.

How different it could and should all be. Imagine a world that truly honoured the right to self-determination. Now, I’m the first to agree that not every bit of the planet should enjoy that right. I recognize no right of Renfrewshire or Hampshire to self-determination. This is the self-determination of peoples we’re talking about. But to deny that right to Catalonia is to strip it of all meaning. Of course the Catalans (by which I mean the citizens of Catalonia) are a people. Of course they must enjoy that fundamental right. There’s no ultimate reason why existing states could not approach the possibility of some of their territory morphing into separate states with calmness and great ethics. There’s no ultimate reason why they couldn’t facilitate the emergence of new independent states. So does the UK government’s approach to the Scottish independence referendum serve as a template here?

Only very partially. Ultimately, the right to self-determination cannot be constrained by the decision of central governments. So the need for a Section 30 order is itself an infringement of this right. Furthermore, the shocking tsunami of propaganda unleashed by the UK government and its unionist coreligionists in the press destroyed any prospect of a sound decision in 2014. I belong to the school of thought that believes there would have been a Yes vote in the absence of this ideological warfare. A handsome victory, I suspect.

As we watch Madrid’s sickening descent into authoritarianism, we should remember that constitutions are not sacred texts. It is vital to challenge the dreadful ethics they often embody. The Spanish constitution is in violation of international law. This is one of the key prisms through which I think we should view current events in Catalonia.