A Plea for Dialogue: An Open Letter on Catalonia

from constitutional & international law scholars

co-sponsored by the Center for Constitutional Transitions & the Edinburgh Centre for Constitutional Law

We, the undersigned, strongly believe that a peaceful, democratic and mutually acceptable resolution of the conflict over the political status of Catalonia is in the vital interest of all concerned inside and outside the borders of Spain. Any other outcome would undermine the capacity of its institutions to protect the equal dignity of all Spanish citizens, betray the foundational ideals of the European Union, and violate the basic principles of international legal order. On October 1, the Spanish government took a dangerous step in that direction. In its attempt to prevent the referendum on Catalan independence, it resorted to excessive force, further escalating an already disturbingly tense constitutional standoff.

More often than not, such crises have a tendency to take a turn for the worse. With this in mind, Mr. Puigdemont’s prudent decision to choose a different route—to delay the adoption of the unilateral declaration of the independence of Catalonia, and seeking to find a solution to the political status of Catalonia through dialogue with the Spanish state—ought to be applauded.

Though commendable, Mr. Puigdemont’s overture is not fully credible. To dispel lingering doubts about its sincerity, Mr. Puigdemont’s government would do well to abandon one of its most dubious claims: the existence of a sufficiently clear pro-independence majority among the people of Catalonia. As recent events demonstrate, many Catalans are uncomfortable with the option of independence, or are openly opposed to it. Even in societies far less polarized, the will of the majority is one among several factors that determine the legitimacy of a sovereignty referendum.

There is no doubt that the Spanish government did everything in its power to suppress voter turnout—to our mind, unwisely and illegitimately—both well before, and on the day of, the independence referendum. This, however, does not mean that a freely organized referendum would have resulted in a sufficiently strong popular mandate to pursue the secession of Catalonia from Spain. In fact, the gap between the percentage of Catalans who in past regional elections voted for pro-independence parties, and those who voted for parties explicitly opposed to independence, has not been sufficiently large to suggest that the majority of Catalonia’s citizens prefer independence over less radical constitutional alternatives, some of which may even escape existing categories and classifications. Whatever the outcome, a new constitutional settlement must command widespread allegiance. Wherever it lies, such allegiance will need to be ascertained credibly: fairly, democratically and, to the greatest extent possible, accurately.

Perhaps emboldened by a particular interpretation of international law, Mr. Rajoy’s government appears indifferent to the aspirations of millions of Catalans who wish to be governed differently: in a state with which they will identify more intensely and comprehensively. As do many governments around the world who find themselves in similar situations, the Spanish government responds to such aspirations repressively, thinking that such responses carry no repercussions under international law.

We disagree. Irrespective of Mr. Rajoy’s judicious attempts not to be seen as someone who undermines the autonomy of Catalonia, his strategy of arresting and prosecuting individuals on charges of sedition is unsustainable in the long run. Were it to continue, the state’s repression of secessionist aspirations would not only cause large-scale violations of individual human rights across Catalonia, but could amount to the violation of the Catalans’ collective right to ‘internal’ self-determination.

While Mr. Rajoy claims to be open to negotiation, his call for dialogue will remain unpersuasive as long as he keeps responding to peaceful secessionist challenges heavy-handedly. We applaud his commitment to the rule of law, but we are highly skeptical of his inclination to use tactics that cannot but erode the social foundations which make that ideal a lived reality. Though the arrests of prominent Catalan sovereigntists may be legal, we doubt that they contribute to the ethical, social and political objectives which the ideal of legality serves in practice. More importantly, Mr. Rajoy’s proclaimed openness to constitutional reform is unlikely to be taken seriously without demonstrating readiness to accept as legitimate the possibility of an independent Catalonia. We are convinced that the best way for Mr. Rajoy to dispel lingering doubts about the sincerity of his calls for dialogue is to make clear that his government will not simply dismiss democratically verified demands for Catalan independence as unconstitutional, but rather that it will engage them in good faith: empathetically and open-mindedly.

Whatever its flaws, a freely organized and impartially policed democratic referendum is still the best vehicle for determining the grassroots support for such a demand. Instead of treating a referendum as a useful device that allows political actors to address radical shifts in popular affections more dispassionately, respectfully, and creatively, the Spanish government chose police repression and criminal prosecution. Rather than harming Catalan secessionism, such repression and prosecution harms Catalan and Spanish democracy—and with it the capacity of Spanish institutions to sustain their authority without violence. The alternative is clear: Mr. Rajoy and Mr. Puigdemont must commit to constitutional negotiations on the basis of a more accurate picture of Catalan political aspirations, and in conformity with the constitutional rights of all. Anything else would be a dangerous step in the wrong direction.

Sujit Choudhry, Director, Center for Constitutional Transitions & I. Michael Heyman Professor of Law, University of California, Berkeley @sujit_choudhry

Robert J. Howse, Lloyd C. Nelson Professor of International Law, NYU School of Law @howserob

Zoran Oklopcic, Associate Professor, Department of Law & Legal Studies, Carleton University @ZoranOK

Asanga Welikala, Director, Edinburgh Centre for Constitutional Law & Lecturer in Public Law, School of Law, University of Edinburgh @welikalaa

Ali Acar, Visiting Scholar, Osgood Hall Law School

Richard Albert, Professor of Law, Boston College Law School

Paul Anderson, PhD Candidate in Politics, Canterbury Christ Church University

Matej Avbelj, Associate Professor of European Law, Nova Univerza

Miriam Bak McKenna, Post-Doctoral Fellow, Lund University

Monica Badia, Senior Project Manager and Content Editor of the Social Observatory "la Caixa", Cambridge University                                                                     

Gad Barzilai, Professor of Law, Vice Provost, Dean Emeritus of Law, University of Haifa

Karlo Basta, Assistant Professor, Memorial University of Newfoundland

Jenna Bednar, Professor of Political Science, University of Michigan

Violeta Besirevic, Professor of Constitutional Law, EU Law and European Human Rights Law, Union University Law School

Harihar Bhattacharyya, Professor of Political Science, Burdwan University

Paul Blokker, Associate Professor, Charles University

Vito Breda, Professor of Comparative Law, School of Law and Justice, University of South Queensland

Ana Cannilla, PhD candidate in Law and Sessional Lecturer, School of Law, University of Reading

Linda Cardinal, Professor, Research Chair in Canadian Francophonie and Public Policies, University of Ottawa

Wen-Chen Chang, Professor, College of Law, National Taiwan University

Francois Crepeau, Oppenheimer Professor of International Law, McGill University

Hugo Cyr, Dean, Faculty of Political Science and Law, Université du Québec à Montréal

Paul Dermine, PhD Candidate in EU Law, Maastricht University         

Avigail Eisenberg, Professor and Chair of Political Science, University of Victoria

Gennaro Ferraiuolo, Professore associato di Diritto costituzionale - Università di Napoli Federico II

Giuseppe Ferrari, Professor of Constitutional Law, Università commerciale Bocconi

Alkmene Fotiadou, Research Associate, Centre for European Constitutional Law

Pierre Foucher, Dean, Faculty of Political Science and Law, Université du Québec à Montréal

Andrew Friedman, Head, Constitutionalism and International Rule of Law, London Centre of International Law Practice

Alain-G. Gagnon, Canada Research Chair, Professor of Political Science, UQAM

Jean-François Gaudreault-DesBiens, Dean of Law, University of Montreal

Fabien Gélinas, Sir William C. Macdonald Professor of Law, McGill University

Tom Gerald Daly, Associate Director, Edinburgh Centre for Constitutional Law & Fellow, Melbourne Law School

Jörg Gerkrath, Professor of Public Law, University of Luxembourg

Sassan Gholiagha, Postdoctoral Research Fellow, WZB Berlin Social Science Center

Pedro Gil Vila, Lawyer, ICAB

Michael Goodhart, Associate Professor of Political Science, University of Pittsburgh

Jurgen Goossens, Assistant Professor of Constitutional law, Erasmus University Rotterdam and FWO Postdoctoral Research Fellow, Ghent University                                                       

Mark Graber, University System of Maryland Regents Professor, University of Maryland Francis King Carey School of Law

Donna  Greschner, Professor, University of Victoria

Gabor Halmai, Professor and Chair of Comparative Constitutional Law, European University Institute

Jonathan Havercroft, Associate Professor, University of Southampton

Tamás Hoffmann, Senior Research Fellow, Hungarian Academy of Sciences                                

France Houle, Associate Dean, Faculty of Law, University of Montreal

Richard Kay, Oliver Ellsworth Research Professor and Wallace Stevens Professor Emeritus, University of Connecticut School of Law

Soeren Keil, Reader in Politics and International Relations, Canterbury Christ Church University

Jan Klabbers, Academy Professor, University of Helsinki                                       

John Kierulf, author and independent disarmament researcher                                   

David S. Law, Charles Nagel Chair of Constitutional Law and Political Science, Washington University in St. Louis & Sir Y.K. Pao Chair in Public Law, The University of Hong Kong

Jean Leclair, Full Professor, Université de Montréal

Patrick Macklem, William C. Graham Professor of Law, University of Toronto

Chibli Mallat, Prof of Law, University of Utah

John Markoff, Distinguished University Professor, Department of History, University of Pittsburgh                  

John McGarry, Canada Research Chair on Nationalism and Democracy, Queen’s University

Armand de Mestral, Emeritus Professor, Faculty of Law, McGill University

Michael Meyer, Executive Director, Democracy Reporting International

Jeanne Morefield, Professor of Politics, Whitman College

Michel Morin, Full Professor, Faculty of Law, University of Montreal

Karis Muller, Retired Senior Lecturer, European Studies and French, Ausralian National University

Kalypso Nicolaidis, Professor of International Relations, Director of the Centre for International Studies, Faculty Fellow, St Antony’s College, University of Oxford

Phoebe Okowa, Professor of Public international law, Queen Mary, University of London

Ghislain, Otis, Canada Research Chair on Legal Diversity and Indigenous Peoples, University of Ottawa

Pablo Ouziel, Post-Doctoral Fellow, University of Victoria

Charles-Maxime Panaccio, Associate Professor University of Ottawa

Cesare Pinelli, Professor in Constitutional Law, Sapienza University of Rome

Johanne Poirier, Peter MacKell Chair in Federalism, McGill University

Francisca Pou Giménez, Assistant Professor, Instituto Tecnológico Autónomo de Mexico (ITAM)

Bob Rae, Ann and David Wilson Distinguished Professor of Public Policy Victoria University and Distinguished Fellow at School of Public Policy

Nikolas M. Rajkovic, Professor and Chair of International Law, Tilburg University         

Bruce Ryder, Associate Professor, Osgoode Hall Law School, York University

Elizabeth Sanderson, Instructor, University of Ottawa Faculty of Law (previously, senior official, Canadian Justice Department)

Toni Selkälä, Doctoral Candidate, University of Turku

Amal Sethi, Doctoral Candidate in Law, University of Pennsylvania

Nikos Skoutaris, Lecturer in European Union Law, School of Law, University of East Anglia    

Irene Sobrino Guijarro, Senior Lecturer on Constitutional Law, Universidad de Sevilla

Jason Sorens, Lecturer of Government, Dartmouth College

Maximilian Steinbeis, Editor, Verfassungsblog

Milena Sterio, Professor of Law, Cleveland-Marshall College of Law

Dejan Stjepanović, Lecturer in Politics, University of Dundee

Costas Stratilatis, Assistant Professor, University of Nicosia

Ruti Teitel, Ernst C. Stiefel Professor of Comparative Law, New York Law School

Stephen Tierney, Professor of Constitutional Theory, School of Law, University of Edinburgh

Roberto Toniatti, Professor of Comparative Constitutional Law, Faculty of Law, University of Trento

Carlos Fernandez Torne, Center for Human Rights and Global Justice, Universitat Autònoma de Barcelona

James Tully, Distinguished Professor of Political Science, Law, Indigenous Governance & Philosophy, University of Victoria

Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School

Renata Uitz, Professor and Chair of Comparative Constitutional Law, Department of Legal Studies, Central European University

Martine Valois, Associate Professor of Law, Université de Montré

Amy Verdun, Professor of Political Science, Jean Monnet Chair Ad Personam, and Distinguished Lansdowne Fellow in European Integration, University of Victoria      

Mila Versteeg, Class of 1941 Research Professor of Law, University of Virginia School of Law

Neil Walker, Regius Professor of Public Law and the Law of Nature and Nations, University of Edinburgh

Mark Walters, F.R. Scott Professor of Public and Constitutional Law, McGill University

Peter Wesley-Smith, Formerly Professor of Constitutional Law, University of Hong Kong

Antje Wiener, Professor of Political Science & Global Governance, University of Hamburg / By-Fellow, Hughes Hall, University of Cambridge