Is Secession Constitutional In Spain?

November 25th, 2012

While my new home state aims to return to its status as an independent Republic, residents of Catalonia (a quasi-autonomous region in Spain) recently voted to on whether to move towards secession from Spain. It seems the Nationalists have may have enough votes to move forward. Though, there is an interesting constitutional issue–under the Spanish Constitution, secession is unconstitutional.

It is also not at all clear that separation is a real option. Apart from the questions about economic viability (everything from loss of investments to membership in the European Union), there are also serious doubts about how and whether Catalonia could legitimately establish itself as an independent state. “There’s no chance,” says Enrique Alvarez, professor of constitutional law at Madrid’s University of King Juan Carlos. “The Spanish constitution doesn’t permit secession. You’d have to reform the constitution, and both of the major parties have made it clear they aren’t willing to do that.” Even if they were, reforming the constitution is an onerous process that requires, among other things, a 2/3 majority in the national legislature, the dissolution of the sitting parliament, and new elections.

How can secession be unconstitutional? Isn’t the entire point of secession that people no longer want to be governed by others? Of course, this question raged throughout the Civil War, where the Union maintained that secession was unconstitutional. Lincoln maintained that the Rebel States were simply in a state of insurrection, and never seceded. Texas v. White confirmed this constitutional reading.  TexasSecede.com has a contrary reading of the law. Though, there is nothing in the text of our Constitution that precludes secession, unlike the Articles of Confederation, which referred to the Confederacy as a “perpetual union.”

In any event, once secession reaches a certain point, constitutions are mere parchment barriers.

Yet even that is tricky. In 2008, Basque leader Juan José Ibarretxe tried to call for a similar non-binding “consultation” in his region, only to have the proposal shot down by the Spanish government as unconstitutional. And already, deputy prime minister Soraya Sáenz de Santamaria has vowed that the government will use its “juridical and judicial instruments to stop” a Catalan attempt to do the same.

What exactly are those “juridicial and judicial instruments”? The real lingering matter is whether any other country will recognize the breakaway region as an autonomous country.

Some constitutional law experts think that Catalonia could pull it off by looking outside Spain. “You would have to do a good job of winning international support,” says Ferran Requejo, political scientist at Barcelona’s Pompeu Fabra university. “Secession is completely illegal in Spain, so you’d have to look for legitimacy outside.”

During the Civil War, many foreign powers (especially those dependent on southern textiles) recognized the Confederacy, and even funded their war effort–two weak American countries was better for Europe than one strong nation.

This NYT Op-Ed makes the case for secession, notwithstanding the Spanish Constitution.

Yet even that is tricky. In 2008, Basque leader Juan José Ibarretxe tried to call for a similar non-binding “consultation” in his region, only to have the proposal shot down by the Spanish government as unconstitutional. And already, deputy prime minister Soraya Sáenz de Santamaria has vowed that the government will use its “juridical and judicial instruments to stop” a Catalan attempt to do the same.

This is fascinating stuff.