EU policy combines un-masterly inactivity with bias towards Madrid and contempt for international law

On October 2, 2017, just hours after Spanish police and civil guards armed with rubber bullets had smashed their way into polling stations across Catalonia, seizing ballot boxes, pushing voters down stairways, and bludgeoning people regardless of age, sex or health, the European Commission – the Union’s “politically independent executive arm” – issued a terse, 12-line statement.

Despite its brevity, this first response merits closer scrutiny. In important respects it sets the framework for how the EU and its core institutions have ‘engaged’ thus far with the Catalonian question – the biggest crisis now confronting the international grouping.

“Under the Spanish Constitution, yesterday’s vote in Catalonia was not legal,” the statement begins. “For the European Commission, as President Juncker has reiterated repeatedly, this is an internal matter for Spain that has to be dealt with in line with the constitutional order of Spain” (one can almost hear Juncker’s sighs of exasperation here: why won’t those pesky Catalonians fall into line?)

Next a threat is issued. Even if “a referendum were to be organised in line with the Spanish Constitution it would mean that the territory leaving would find itself outside of the European Union.”

There follows a platitudinous observation irrelevant to the issue at hand: “Beyond the purely legal aspects of this matter, the Commission believes that these are times for unity and stability, not divisiveness and fragmentation.”

More piety is invoked in the concluding paragraph. “Violence can never be an instrument in politics,” the statement intones, without specifying which side has actually been deploying rubber bullets and cudgelling voters in Catalonia.

Finally, the perpetrator of the violence is declared worthy of the EU’s ‘trust’: “We trust the leadership of Prime Minister Mariano Rajoy to manage this difficult process in full respect of the Spanish Constitution and of the fundamental rights of citizens enshrined therein.”

Subsequent EU interventions have done little to move things on from this first response, which speaks to the multiple ways in which the EU has failed (or, more bluntly, betrayed) the people of Catalonia. EU policy on this question can be characterised as a mixture of un-masterly inactivity, contempt for democratic norms, open bias towards Madrid, and giving the finger to international law.

Spanish state violence? What Spanish state violence?

Addressing the European Parliament on October 4, Frans Timmermans, vice-president of the European Commission, regretted the “saddening images” recently emanating from Catalonia. It was important to remember, he affirmed, that “violence does not solve anything in politics. It is never an answer, never a solution, and it can never be used as a weapon or instrument. None of us want to see violence in our societies.”

An opportunity to come down hard on a member state whose use of violence as a “weapon or instrument” had just been filling television and computer screens across the globe? Not really, for Timmermans chose to place his emphasis elsewhere: “It is of course a duty of any Government to uphold the rule of law and this does sometimes require the proportionate use of force.”

In fact, no condemnation of the barbarism directed at peaceful citizens seeking to cast their vote has been forthcoming from the higher echelons of the EU or from the leaders of its most influential member states. As Spanish ‘law and order’ proceeded to assert itself so brutally across Catalonia on October 1st, only a handful of European leaders raised their voice in protest. Jeremy Corbyn, Nicola Sturgeon and Charles Michel, the Belgian prime minister, were among the few who bothered.

The silence has been maintained in respect of every subsequent escalation of the conflict by Madrid. From the October 16 arrest of Catalonian leaders Jordi Sanchez and Jordi Cuixart, through the imposition of direct rule and dissolution of Catalonia’s democratically elected government, to the charging of Catalan President Carles Puigdemont, his deputy Oriol Junqueras, other pro-independence officials and members of the Catalan parliament, including Speaker Carme Forcadell, with rebellion, sedition and misuse of public funds (‘crimes’ which under Spanish law command prison sentences of medieval proportions), the EU has restricted itself to homilies about the ‘rule of law’ , ‘territorial integrity’ and the need to ‘avoid confrontation’.

Spanish law rules, okay?

For the EU’s core institutions, as for the leaders of its most powerful member states, the writ of international law appears to stop at the EU frontier. When it comes to Catalonia, the line seems to be: Forget international law. Spanish law rules, okay? Or as the opening sentence of the EU Commission’s first response puts it, “Under the Spanish Constitution, yesterday’s vote in Catalonia was not legal.”

This privileging of Madrid law over foundational principles of international jurisprudence is sought to be reinforced by solemn invocations of ‘the Rule of Law’ (a phrase currently much favoured in the corridors of Brussels, Paris and Berlin). Frans Timmermans set the tone when addressing the European Parliament on October 4: “Respect for the Rule of Law is not optional, it is fundamental. There is a general consensus that the regional government of Catalonia has chosen to ignore the law when organising the referendum held last Sunday.”

French president Emmanuel Macron restated the position in capsule form during a recent trip to Guyana: “There is a rule of law in Spain with constitutional rules. Mariano Rajoy wants these rules to be respected and he has my full support.”

Catalonia’s right to self-determination? Not today, thank you – we back Spain’s ‘territorial integrity’

The demotion of international law and its de facto subordination to the Spanish constitution is vital to the EU’s stance on Catalonia, for it supports the cornerstone of the EU’s policy on Catalonia: denying Catalonia’s right to national self-determination.

In the real world, such a fundamental right cannot be spirited away with the aid of a Brussels-endorsed magic wand. As Aiden Hehir, Reader in International Relations at Manchester University, underlines:

“Article 1.2 of the UN charter recognises the principle of self-determination – making this a right which transcends any state’s domestic laws. A fundamental principle of international law is that the provisions of a state’s constitution cannot be deemed inherently legal – they must equate with international law. For example, a constitution may sanction racial discrimination or genocide, but this is superseded by the international laws which prohibit both. To claim that a state’s constitution is the sole determinant on the legality of action taken within that state is to essentially reject the very idea of international law.” (emphasis added)

By definition, asserting the right to national self-determination brings the would-be nation into conflict with the host state. Attempting to make the right of self-determination conditional on the agreement of the host state (the essence of the current Spanish and EU position) is therefore illogical as well as out of step with international law. Hehir offers a useful analogy: “This is akin to saying that all women have the right to divorce their husbands but only if their husbands agree.”

He continues:

“Spain’s refusal to accept the possibility of Catalan independence manifestly negates the very idea of self-determination. This position essentially denies self-determination as an inherent right by ceding all power to the host state. If applied globally, this principle would sanction the immutability of borders, and sentence millions of people across the world to remain permanently trapped under the jurisdiction of governments that they do not recognise.”

As part of its attempt to justify the unjustifiable and stand international law on its head, the EU, echoing Madrid, is invoking the principle of ‘territorial integrity’. The relevance of this principle to the Catalonian question has been challenged by a number of legal experts, among them Alfred de Zayas, UN Independent Expert on the promotion of a democratic and equitable international order. In a statement released on October 25, de Zayas deplored Madrid’s decision to suspend Catalan autonomy, which he described as constituting regression in human rights protection, incompatible with key articles of the International Covenant on Civil and Political Rights (ICCPR). While acknowledging the importance of the principle of territorial integrity, de Zayas pointed out that

“it is intended to be applied externally, to prohibit foreign threats or incursions into the territorial integrity of sovereign States. This principle cannot be invoked to quench the right of all people, guaranteed under article 1 of the international Covenants on Human Rights, to express their desire to control their futures. The right of self-determination is a right of peoples and not a prerogative of States to grant or deny. In the case of a conflict between the principle of territorial integrity and the human right to self-determination, it is the latter that prevails.” (emphasis added)

It says something about the current state of affairs at the EU that its stance on Catalonia is so profoundly at odds with basic precepts of international law.

You think we should mediate? You must be joking!

The EU’s attempt to combine support for Madrid with a shambling reenactment of the fabled Three Monkeys – seeing, hearing and speaking no evil – has caught journalists and international commentators by surprise. As The Guardian’s Simon Tisdall put it, “At this moment of acute peril for the European project…the EU is nowhere to be seen.”

Where words have been forthcoming, they have clarified that the EU foresees no mediation role. Soon after Catalonia’s declaration of independence, for example, Donald Tusk, president of the European Council (the body which, by bringing together the leaders of EU member states, acts as the highest level of political cooperation), made clear that nothing had changed and that the EU would only deal with the central government in Madrid.

French President Emmanuel Macron, no doubt absorbed in his ‘profound’ vision of an integrated Europe, was quick to concur. “I have always said that I have one interlocutor in Spain, it is Prime Minister Rajoy,” he told journalists during his trip to French Guiana.

In Germany, Chancellor Angela Merkel continues to eschew the “full mediation mode” she so readily engaged when crises surfaced in Greece or the Crimea.

Why this refusal to intervene or at the very least attempt to initiate a process of mediation? Over at The New Statesman, Stephen Bush has a ready explanation: it’s all down to the veto powers the EU, “like the UN and most international organisations”, has given its constituent members. In Spain, Bush argues, all veto powers are reserved to the central government On top of which, the EU has no powers over policing standards, and so can’t intervene or curb violent clashes between police and protestors. In short, it’s powerless to do anything much.

Other commentators demur. Writing in The Scotsman, Joyce McMillan describes Madrid’s current position as “nonsense on stilts” and deplores the sight of the EU “lining up to defend the top-down rights of a member government against the civil and individual rights of a large section of its own people.” Simon Toubeau, who teaches politics at Nottingham University, has volunteered an action plan for EU mediation, beginning with a resolution passed in the European Parliament assigning responsibility to both sides. If his hope that Tusk, Juncker, Merkel, Macron et al would “fully endorse” a resolution restating “the cardinal values of the rule of law, democracy and minority rights in the European constitutional order” seems a trifle misplaced, Toubeau at least affirms the mediation role the EU could take on, were it so minded.

For the moment no such initiative – indeed, no movement at all – seems imminent. For supporters of the EU project, consternation seems matched by puzzlement. As Joyce McMillan recalls, the EU was supposed to “cherish regional diversity within all its nation states, and provide the kind of flexible framework in which old conflicts…could fade into the past.”

For more critical eyes, the EU’s track record on Catalonia has much to tell us about this putative ‘community of law’: its priorities; the value it ascribes to democracy in its decision-making; its readiness (or otherwise) to uphold international law; its ability to be even-handed; its openness to mediating in conflicts that involve its more powerful players.

Among its many considerable achievements, the Catalonian independence movement is revealing the European Union’s feet of clay.