Friday 30 March 2018

To let the punishment fit the crime

A St Andrews academic Clara Ponsati is facing extradition to Spain. The Vice Chancellor of the university has come to her defence, as have many other people in Scotland, on the grounds that Ponsati is being “targeted for her political beliefs” by the Spanish government.

Ponsati is not alone in facing extradition to Spain. Former Catalan Premier Carles Puigdemont is in custody in Germany on charges of rebellion, sedition and misuse of public funds in connection with what Spain considers to be an illegal referendum held on October 1st 2017 and a later unilateral declaration of Catalan independence. Ponsati and others who were members of Puigdemont’s government face similar charges. Not every country has the same laws, of course, but the offence that the Germans consider is closest to this in German law is high treason.

Is it the case that Puigdemont, Ponsati and others are being persecuted for their political beliefs? If that were the case why were they not arrested some years ago when their political belief in the independence of Catalonia was made clear and public? It is not illegal in Spain to believe in this. Nor indeed is it illegal in most countries to campaign for the independence of a part of a nation state. I could campaign for the independence of Burgundy, Saxony or Kansas and I will be left alone. I can believe fervently in the justice of independence for all of these places no-one will send an international arrest warrant. I might get into trouble if I campaigned for independence for a region of Saudi Arabia or China, but in most countries I can believe what I please about regional independence.

The issue with regard to Ponsati is not what she believes, but rather what she did. An international arrest warrant has been sent not because she believes in independence for Catalonia, but rather because she tried to achieve this independence illegally. What this means is that she broke the law in Spain.

But surely what Ponsati did was no different to what Nicola Sturgeon and Alex Salmond did in Scotland. In some ways this is true. The SNP gained power in the Scottish Parliament and said they wished to hold a referendum on Scottish independence. This referendum was held. If they had won, they would have set about turning Scotland into an independent, sovereign nation state. What’s the difference between what the SNP did and what happened last year in Catalonia?

The difference is this. The SNP had permission to hold a referendum on independence. The SNP came to an agreement with the UK called the Edinburgh Agreement which made the independence referendum of 2014 legal and binding on both sides. Each agreed to respect the result as a decisive expression of the wishes of people in Scotland. There wasn’t an illegal referendum in Scotland and there wasn’t an act of rebellion because UK gave permission for the referendum and made it legal both in Scotland and the UK. If the SNP had won, Scotland would by now be a sovereign independent nation state recognised the world over.

Why did the Catalans hold an illegal referendum? The reason is that Spain would not give permission to hold a legal one. Ought Spain to have given permission? This is a matter we can debate endlessly. There are legitimate differences of opinion. In our political tradition we have generally considered that the parts of the UK have the right to leave if they express the political will to do so. But this view is not shared by most of the world. It is hard to think of a member of the EU that would allow a region to have a vote on independence. Likewise the USA would certainly not allow a state to have such a vote. So whether we agree with Spain or not it is worth reflecting that Spain is not alone.

After Catalonia made its unilateral declaration of independence how many nation states around the world recognised it? The answer is zero. The only places which tentatively gave support to this declaration were Abkhazia, South Ossetia, Flanders, Corsica, Sardinia, and Scotland. What do these places have in common? Well the first two are places that obtained “independence” illegally by means of Russian tanks and the rest are parts of sovereign nation states with significant independence movements.

But not a single internationally recognised sovereign nation state supported Catalonia even though around the world many of us were shocked to see the Spanish police we battering people for voting. Why was there such a lack of international support for Catalan independence?  The reason is clear. It is because the Catalan regional government was acting illegally. Its unilateral declaration of independence was an act of rebellion. No-one in the rest of the world wants to encourage such behaviour. Nearly every nation state in the world sees maintaining territorial integrity as its number one priority.

But don’t the Catalans have the right to vote for independence if they want to? It is commonly thought by independence supporters in Scotland that there is a right to hold a vote on independence whenever they want. But this is not the case. While the SNP’s Fiona Hyslop argued that “the people of Catalonia must have the ability to determine their own future” she was apparently unaware that the so called right to self-determination does not apply to places like Catalonia nor indeed to Scotland. This is why the UN sought "solutions within the framework of the Spanish constitution and through established political and legal channel" rather than pointing out that Spain was in breach of international law for not giving the Catalans their right to secession. 

Places like Catalonia and Scotland, being part of a fully functioning democracies already have self-determination. They have national and regional elections by which they can already express their political views. There is not in international law a right to have a vote on independence. If there were then most of the democracies in the world including all of the EU, USA and Japan would be in breach of international law. If Catalonia was merely fulfilling its right to self-determination in law and Spain was acting illegally in thwarting this right, why is it that the whole world took Spain’s side with only a few regional assemblies and rogue secessionists backing the Catalans? It's rather odd than only these few places should correctly understand international law, while the whole of the rest of the world including the UN does not. 

The sovereign nation state in international law has the right to defend itself and defend its territorial integrity. It is for this reason above all that we support Ukraine as opposed to its breakaway regions of Crimea, Donetsk People's Republic and the Lugansk People's Republic. They too unilaterally declared themselves to be independent from Ukraine on the basis of illegal referendums. They too received next to no recognition.  Even if Russian troops had not been involved in achieving these declarations of independence and even if 100% of the populations of these regions had wished to leave Ukraine, it still would have been within the right of Ukraine to say “No” you will remain part of Ukraine and the sovereignty of the Ukrainian Government will forever extend over you.

But what are Catalan independence supporters supposed to do? If Spain always says “No” to a referendum on Catalan independence how are they to reach their goal of independence? They have no choice but to hold an illegal referendum, simply because Spain won’t grant them a legal one.  Rebellion indeed is the only option when a nation state refuses independence. Many of today’s nation states obtained independence in this way. If the rebellion succeeds the new state is recognised. In this case the leaders, such as George Washington, are heroes. There is a right to rebellion, but there is clearly also a risk. If you fail, then you are liable to be prosecuted, sometimes rather severely.

It is above all for this reason that a touch more gratitude might be expected from Scottish nationalists for the fact that they were allowed to hold a legal referendum. The UK didn’t have to give in to SNP demands. They don’t now. If Alex Salmond and Nicola Sturgeon had decided to hold a referendum anyway, they too might have had to face the consequence of acting illegally. All the Catalans wanted was the chance that Scotland had in 2014, but I have heard rather few Scottish nationalists praising British democracy as opposed to that in Spain.

Clara Ponsati may well have acted illegally, but we can also sympathise with her predicament. She had no legal route to independence and therefore chose to act illegally. She failed. Catalonia is not independent and probably will not in the foreseeable future become independent. There has been some violence in Spain. The cause of this can justly be ascribed to the Catalan government acting illegally and the Spanish government attempting to enforce the law in an unnecessarily heavy handed manner. If the independence vote in Catalonia was illegal why not let the Catalans vote freely and then simply ignore the result because it was illegitimate? But while any violence is regrettable we must be grateful that it has not, as yet been too severe.

Still it is worth he Spanish authorities learning the lesson of their overreaction. If they have any sense with not create martyrs, like the British did in Ireland in 1916. Better by far if we’d led all rebels depart in peace. Better if we’d acted decades earlier so that they had felt no need to rebel in the first place.

There is no threat now to the integrity of Spain, so be gentle with those who felt forced to act illegally. The dearest wish of Ponsati was by means of Catalan independence to not live in Spain. Perhaps the punishment that would most fit the crime would be to fulfill her wish and say that she may indeed continue not to live in Spain and will be left alone so long as she continues to do so.