Catalonia’s Independence: Much Worse than Hard Brexit

By Professor Jose M. de Areilza, ESADE Law School, Barcelona
The opinions expressed in this op-ed are those of the author and do not reflect the views of the Comparative Jurist, William and Mary Law School, or its affiliates.

Any decision to leave the European Union carries enormous costs, as witnessed during the current difficult Brexit negotiations. In the United Kingdom, more than a year after the referendum, EU skeptics within both the Conservative and Labor parties have lost the battle against those in favor of maintaining the closest possible ties with the European Union. In time, I believe that many British citizens will demand a second referendum on EU membership out of a desire to avoid exit, right up to the final moments of negotiations next March.

What happens if – instead of focusing on a Member State with the international presence and great negotiating capacity of the United Kingdom – the discussion centers upon a European region seeking to leave the Union by way of unilateral secession in its quest to become an independent state?  Exit by these means cannot help but produce catastrophic consequences.

This is the current situation in Catalonia, where the pro-independence movement has called a referendum on October 1, 2017, which is forbidden by the Constitutions of both Spain and the Catalan region. The regional parliament already openly defies Spanish national law and no longer recognizes rulings by the Constitutional Court of Spain. In the Spanish context, there is no Article 50 of the Treaty on European Union to pace any exit and commence a two-year period of negotiation. If the government of Spain does not halt the referendum, and proponents of self-determination win, Catalonia’s exit from the European Union would be automatic.

If this happens, neither EU institutions nor Member States would spare any sympathy for those who rejected the ideals of the Rule of Law that are central to the European project. The newly independent state would be relegated to last in line during the EU enlargement process. The crippling effects of disconnecting from the European market, the single currency, and other core European policies would be felt immediately upon independence.

A basic observation must be made when considering misleading statements about permanent EU Member status, which are the basis of the new (so-called) “Law of Transitory Provisions and for the Founding of the Catalan Republic.” This somewhat surreal text states that European Union law would maintain its essential nature and position with respect to the legal order of an independent Catalonia. Given its most benevolent interpretation, the text must be considered nothing more than a platitude; it should not mislead citizens deeply concerned about the insurmountable costs of a double divorce from both Spain and the European Union. The European Commission has made it clear that a region that exits its Member State also immediately leaves the EU, and that EU treaties and law immediately cease to have effect in that territory.

In a similar vein, Member States do not favor internal cleavages within partner States for fear of the effects of contagion. Secession is also deeply opposed to European ideals of unity and solidarity. The integration of the European continent, which stands as the best European political project within the last 70 years, aims to unite and harmonize different political and cultural identities, thereby managing interdependence in an orderly, humane, and civilized way that ensures dialogue and respect for the rules of the game. These ideals represent the ethical backbone of Europeanism. They do not protect or give weight to radical movements such as the current Catalan pro-independence movement, which is built upon pitting Europeans against each other.

* The front picture is from As Catalonia Independence Referendum Nears, Madrid Escalates Tensions, NY Times, https://www.nytimes.com/2017/09/20/world/europe/catalonia-referendum-spain.html?mcubz=0. (The Editorial Board)
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José M. de Areilza, Count of Rodas, is the Jean Monnet Visiting Professor at William and Mary School of Law. He is Professor of Law & Jean Monnet Chair at ESADE, Ramón Llull University, Barcelona. He is also Secretary General of Aspen Institute España, a partner institution of The Aspen Institute in the USA, that works on leadership, values and public policies.
He has served as Advisor to the Spanish Prime Minister on European and North American affairs.
He has written extensively about European integration, EU decision making and institutional reform. He is a Member of the European Council on Foreign Relations and a Senior Research Fellow at Elcano Royal Institute. In 2016, he was appointed Academy Adjunct Faculty at the Royal Institute of International Affairs -Chatham House, London. He serves as the Chairman of the British-Spanish Tertulias, a civil society friendship group between two countries.
José M. de Areilza holds S.J.D. and LL.M. degrees from Harvard University and an M.A. from The Fletcher School of Law and Diplomacy. In 1991, he was admitted to the New York Bar.