As the hours tick by and Catalonia's future is up in the air, how does the legal case for independence stack up? Ever since Catalonian regional president Carles Puigdemont made a declaration of independence and then suspended it to de-escalate tensions so that negotiations with Spain could take place, Catalonia's legal status has come under the spotlight. What is the legal position regarding the the declaration, signed by the parties in the regional government, although not formally registered for vote?
Leaving aside the grandstand declarations, there are a number of questions which need to be asked. Firstly, when stating the willingness to negotiate, it demands that they should be without conditions, with the objective of co-operation between both parties and on equal footing. Considering that the negotiation is already framed in the context of an irrevocable declaration of independence and expecting equal footing between both parties, this begs the question - what the purpose of the negotiation is beyond a negotiated exit? The call for negotiations is clarified by the following two paragraphs which say that the European Union is put on notice of the call for negotiation and the International Community to intervene “stopping the violation of civil and political rights” and to follow up the negotiation. In other words, the negotiation is a PR tool to put pressure on the Spanish government; it is part of the strategy of internationalisation of the conflict.
The position of the EU
Secondly, the declaration has a very unexpected to pledge to maintain the application of EU, Spanish and regional law. This commitment, perhaps inspired by the UK's Great Repeal Bill, cannot be taken seriously since the two regional laws (law of the referendum and law of transition and constitution of a republic) that would allow for this declaration were suspended by the very same legal order that is affirming to obey.
We are, therefore, in a very surreal situation. If we are to consider that the law of referendum and constitution of the Catalan republic are valid - and therefore the decisions of the Spanish Constitution Tribunal are without effect - then the Republic of Catalonia has been declared. If we are to accept the pledge to obey Spanish law, then the Republic of Catalonia could not be declared until we have the final decision of the Constitutional Tribunal. In fairness, we are dealing with a Government that considers the formalities somewhat easy to dismiss, such as the approval of the very same referred laws without the prescribed consultation process as denounced by the Council of Guarantees.
Suspension of the declaration
The call for negotiations is more of an exit negotiation and commitment is already breached. So what about the suspension of the declaration? Article 4, paragraph 4 of the law of referendum (the law suspended by the Spanish Constitutional Court) states that if there are more votes in favour of independence than against it, Catalonian Parliament will declare formally the independence of Catalonia.
Moreover, the final provision number three of the law of transition and constitution of a republic (also suspended by the Spanish Constitutional Court), says have that the Republic of Catalonia will be declared after the publication of the law and the declaration of independence. As the laws do not have a provision of suspension of the declaration of independence, the only way that it can be prevented is if the Catalan government was to argue that the declaration was not formally approved. This is unlikely to be accepted by the minority party of the regional government, the CUP.
In conclusion, it looks like a secret declaration of independence, rather than a suspended one. Perhaps the Catalonian government will disclose the existence of a newly created Republic of Catalonia during the intended exit negotiations.
Alfonso Valero, Principal Lecturer in Law at Nottingham Law School, part of Nottingham Trent University