Kieran Oberman, University of Edinburgh

Kieran Oberman urges us to think ‘what is best for everyone affected by the referendum, wherever they live?’

The Yes and No camps are busy telling us that Scotland will be made better or worse off as a result of independence.  What they both seem to assume is that “what is best for Scotland?” is the relevant question to ask.  But why?  The referendum will have an impact on people beyond Scotland’s borders.  So isn’t the relevant question to ask, “what is best for everyone affected by the referendum, wherever they live?” Clearly, the outsiders who will be most affected are those living in the rest of the UK.  In the event of a Yes victory, politics within the rest of the UK is set for a shake up.  Currently, Scotland sends 59 MPs to Westminster.   Most are Labour; only one is Conservative.  So Scottish independence is likely to shift UK politics rightwards.  This rightward shift is unlikely to take the form sometimes imagined: endless Tory majorities.  Rather Labour and the Liberal Democrats will themselves shift rightwards in search of the new median voter.

This should be good news if you are on the right.  Scottish right-wing internationalists (if there are such people) have good reason to vote yes.  But for those on the left, it should be deeply concerning.  If the left is correct in thinking that right-wing policies worsen social injustice, then Scottish independence is likely to worsen social injustice in the rest of the UK.  Scottish left-wing internationalists may have reason to vote no even if, as the Yes camp claim, Scotland itself would better off on its own.

There is a global dimension to all this as well.  Scotland, post-independence, will not be a major international actor, but the rest of the UK will retain much of its influence.  A rightward shift in UK politics will mean a rightward shift in the UKs approach to foreigners: expect more hostility towards the EU, more loyalty to the US, even tighter immigration restrictions etc.

Left-wing Yes supporters will argue that an independent Scotland will offer a left-leaning role model for others to follow.  Whether Scotland will really be all that left-leaning is questionable. Surveys of political values reveal that Scotland is not actually that different to the rest of UK.  The problem the Conservatives have in Scotland might be due less to their right-wing policies as their perceived Englishness.  But even if Scotland did offer some kind of Scandinavian-style social democracy, the role-model argument seems far-fetched.  If the rest of the world wanted a Scandinavian role model to inspire it, it already has one: Scandinavia.  Moreover, large countries tend to ignore the affairs of smaller neighbours.  The UK’s ignorance of the politics in the Republic of Ireland is rivalled only by the US’s ignorance of Canada.

Some contend that the referendum will actually have little affect on UK politics.  They point out that Scotland has only been decisive in three British elections in the last fifty years: 1964, 1974 and 2010.   Two points on this.  First, three out of thirteen elections seems significant to me.  That is almost one in four.  Second, one only knows whether Scotland is decisive or not after an election.  Going into an election, party strategists must plan for all possibilities.  Given the possibility that missing Scottish votes will prove decisive in a post-independence election, Labour and Liberal Democrats are likely to play it safe and shift right-wards.  The idea that party strategists will simply ignore the loss of dozens of safe seats and plough on as before is hard to believe.

Now to some, all of these considerations are beside the point because they will reject the internationalist approach from the outset.  For them, the question “what is best for Scotland?” is the pervasive question in the public debate for a good reason: it is the relevant question. The idea that Scottish residents should countenance voting for the sake outsiders, while anticipating harm to Scottish livelihoods, will seem preposterous, even treacherous.  Scotland, like any other country, can legitimately put itself first when deciding its own affairs.

I certainly accept that the internationalist approach goes against current orthodoxy, but I want to question whether that orthodoxy is defensible.  For the question remains: what can justify the view that Scots should show greater concern for other Scots than for outsiders?  Every one is human.  Why worry about some human beings more than others, simply on the grounds of their geographical location?

That question is rarely raised in everyday politics, but it as a question that nationalist political theorists have sought to answer.  One of their most powerful arguments rests on an analogy between nations and families.  People are often entitled to do things for their family members that they need not do for strangers.  If your mother is in hospital, it is okay to visit her; you do not have to visit other patients as well. If you want to read a bedtime story to your child, you can do so without incurring the obligation to read to every child.  Families are often entitled to put their members first.

Perhaps nations are like families.  If the analogy holds, then it would seem permissible for nationals to prioritise fellow nationals.  But does the analogy hold?  One thing that seems important about families is that they are (usually) a site of love and intimacy.  It is arguably part of love and intimacy that it involves prioritisation.  By visiting your mother in hospital, you express your love for your mother.  In reading to your child, you experience intimacy with your child.  No such argument from love and intimacy can be made in the case of nationals.  The vast majority of our fellow nationals are strangers we will never meet.  A person who refuses to award her fellow nationals priority status does not thereby miss out on a loving, intimate relationship.

Anti-nationalists, moreover, have their own analogies.  Clearly there are cases in which it is unjust to award one group of people priority status on the basis of a morally arbitrary characteristic.  Racism, sexism and sectarianism are wrong.  What makes nationalism any different?

The left, which often prides itself on its opposition to arbitrary discrimination, has had an uneasy relationship with nationalism.  This is true as much in Scotland as elsewhere.  Johann Lamont, the leader of the Scottish Labour Party, has described nationalism as a “virus that has affected so many nations and done so much harm”.  Strong words.  But if nationalism is to be rejected and internationalism embraced, then the Scottish Labour Party, along with everyone else, should be prepared to accept losses for Scotland for the sake of outsiders.

This article has so far suggested that right-wing internationalists have reason to vote yes and left-wing internationalists reason to vote no.  But let me end here by saying a little to redress the balance.  The SNP are promising the removal of British nuclear weapons from the Faslane naval base.  If they deliver it would add pressure on the UK to scrap its weapons altogether.  Whether that possibility lends one reason to vote Yes depends on how one feels about nuclear weapons.

Moreover, once one adopts the internationalist approach, some of the No camp arguments lose their force.  Consider the argument that an independent Scotland would lose out on being part of a country whose influence is disproportionate to its population size.  From an internationalist, and democratic, perspective, that does not seem such a bad thing.  The UK’s disproportionate influence is unfair – a product of colonialism and power politics.  The UK does not deserve its permanent seat on the UN Security Council, for instance, and were the UK to lose it upon a Scottish exit, as some warn, that should be welcomed, especially if it meant a shake up in which poor countries achieved a greater say.

Finally, and most importantly, while the internationalist approach takes seriously the impact of the referendum on the rest of the world, it does not ignore the impact on Scotland.  Since it is in Scotland that the strongest impact will be felt, an internationalist would be willing to vote against the interests of outsiders, as long as the benefits for Scotland are sufficiently great. This article has proposed an internationalist approach to deciding how to vote, but it has not claimed that that internationalist approach yields any easy conclusions.  On the contrary, the internationalist approach complicates matters further by bringing a range of new considerations to light – considerations that are all too often ignored in the public debate.

Coree Brown rounds up coverage of Scotland’s referendum in the international press. 

The Wall Street Journal covers First Minister Alex Salmond’s trade visit to China, noting that while China has adopted a zero tolerance party on autonomist movements within its own borders, it has ‘nothing against whisky-toting separatists who annoy only foreign governments’.

An editorial in the Montreal Gazette reflects on the Parti Quebecois’ response to the federal Clarity Act. Bill 99 asserts that Quebec can unilaterally separate on the basis of a 50% plus one referendum, with a question chosen by the Quebecois government. The editor argues that Scotland’s referendum should be held as a model for future votes on independence, with a clear question agreed upon by both sides rather than a referendum held without extensive consultation of both sides.

In the New York Times, Parag Khanna reflects on the Alternative Worlds report, published by the United States National Intelligence Council in 2013. The report discussed the possibility of a ‘Nonstate World’ in 2013, a scenario in which traditional states were subsumed by global and economic forces. He discusses this scenario in light of the rise of cities and their mayors as well as nationalist movements in Western Europe as well as Asia and the Middle East.

Writing in The Herald, David Leask provides insight into the Scottish referendum from the perspective of Quebec. He notes that internationally, Scotland’s vote is increasingly being framed as a contrast between a social democratic Scotland and a neo-liberal England.

Coree Brown is a PhD student in Politics at the University of Edinburgh.

Dr Jaime Lluch, University of Pennsylva

The University of Pennsylvania’s Jaime Lluch discusses Puerto Rico’s plebiscite on the territory’s constitutional status, pointing to the ambiguity inherent in the relationship between Puerto Rico and the United States. 

Last November 6, the citizens of Puerto Rico held a plebiscite on their future constitutional status. This is the fourth plebiscite of this sort that has been held in Puerto Rico, following those held in 1967, 1993 and 1998.

Both the procedural pathway that led to the holding of the plebiscite and the substantive results emerging from it may be of interest to those who are concerned with the process leading to the 2014 Scottish referendum on independence.

Background: The territorial autonomy of Puerto Rico
Since 1898, Puerto Rico has been an “unincorporated territory” of the United States, and the nature of its relationship with the U.S. has been set by federal statutes, especially the Foraker Act of 1900, the Jones Act of 1917, and the Federal Relations Act of 1950-1952. Although the US Constitution provides for “states” and “territories,” the category of “unincorporated territory” was sculpted by the U.S. Supreme Court. Puerto Rico has a very peculiar form of territorial autonomy. It has a special status arrangement within the United Sates. It is part of the wider US federal political system, but it is not one of the constituent units of the US federation. Its autonomy is called “Estado Libre Asociado” (ELA), or free associated state, but it is neither free nor associated nor a state. There are now less than 4 million people on the Island and another 4 million plus Puerto Ricans on the US mainland, many of which circulate back and forth. Puerto Ricans are US citizens by virtue of the 1917 federal statute, but they cannot vote in US federal elections.

Autonomies such as Puerto Rico are non-federalist because they are constitutionally subordinate to the center. The “shared rule” component between the central state and the autonomous unit is weak or practically non-existent. The power to terminate or modify the Puerto Rico-USA relationship rests squarely within the US Congress. During 1952-53 the US succeeded in getting Puerto Rico off the agenda of the UN Decolonization Committee in part by arguing that the Estado Libre Asociado was a compact of a bilateral nature whose terms may only be changed by common consent. However, soon thereafter Congress and the Executive branch started to behave “as if no compact of any kind existed and as if Puerto Rico continued to be a territory or possession of the United States, completely subject to its sovereign will. Puerto Rico leaders would spend the rest of the century unsuccessfully trying to convince the United States to allow full decolonization” (Trías Monge 1997). Supporters of the ELA have tried on several occasions to negotiate a “culminated ELA,” starting with the Fernós-Murray bill of 1959, but they have been unable to obtain the consent of the US Congress. However, Congress continues to assume that it can unilaterally exercise plenary powers over Puerto Rico under the territorial clause of the US Constitution, and the US government contends that sovereignty over Puerto Rico resides solely in the United States and not in the people of Puerto Rico.

For well over a century, politics in Puerto Rico has not been about political economy or the relation between the state and society. Instead, it has mainly been a debate about how the territory will relate to the central US state and about how different conceptions of national identity shape this debate. These debates are dominated by three well-defined political orientations in the political party system: independentist, autonomist, and federalist (“let’s become a unit of the federation”).

Previous Plebiscites of 1967, 1993, and 1998
In all the previous plebiscites, the choice offered to the electorate has been to decide between independence, autonomy or federalism. In 1967, autonomism won with 60% of the vote, while the independentists boycotted the event. In 1993, 48.6% voted for autonomism, 46.3% for federalism, and the rest for independence. In 1998, 50.5% voted for “none of the above,” 46.6% for federalism, 2.6% for independence, and 0.3 for free association.

The plebiscite of November 6, 2012
Some years ago the independentist party offered a proposal for holding a plebiscite with two rounds. In the first round, the people would be asked whether they wanted to continue living under the present (colonial) “unincorporated territory.” If the answer chosen by a simple majority was “No,” then there would be a second round (months later) in which the people would be asked to choose among the three non-territorial options, following an educational campaign. The idea was to narrow down the options to the ones that would decolonize the polity. This was seen as a mechanism for finally decolonizing the Island, given that the USA Congress had never shown an interest in doing so, or in even holding a federally-sponsored plebiscite in Puerto Rico.

Last year, the federalist party in power in Puerto Rico adapted the idea of a two-step referendum and proposed instead a two question referendum, to be held on the same day as the regular elections for selecting both the new Governor and the new legislature (with a view to boosting their support in the regular elections).

Thus, in the plebiscite of 6 November 2012, the people were asked two questions. The first was: “Do you agree that Puerto Rico should continue to have its present form of territorial status?” In the second question, they were asked to choose between federalism, independence, and a “sovereign ELA”, which is a light version of a genuine status of free association. The autonomist party actively and energetically campaigned for a Yes vote on the first question, and on the second question a “blank vote.” The results showed that 54% of the people voted No in the first question – a No vote in this context suggesting a vote for change. For the first time in their history, Puerto Ricans voted to show their disapproval of their present political status. This is the most important result of this event.

Among the choices offered by the second question, federalism received 61%, sovereign ELA 33.3%, and independence 5.5%, but there were 480,918 blank votes, so if those votes were to be counted, federalism received only 46% of the vote.

The US Congress, as the political branch of the central state, needs to take up its responsibility to de-territorialize Puerto Rico. In light of these results, another vote should be taken among these three options, but this time in a Congressionally-sponsored plebiscite.

Every single one of the four plebiscites that has been held in Puerto Rico has been a locally-sponsored one. The U.S. Congress has never agreed to provide for a binding referendum. This is not just a matter of respecting and implementing the result of the vote, but of exercising its responsibility as the dominant power. Moreover, only the US Congress can define what sort of conditions would be imposed if the people want to join the federation, what kind of transition period there would be were independence to be chosen, or what sort of expansive model of autonomy the U.S. Congress would be willing to grant Puerto Ricans.

Dr. Jaime Lluch is the Visiting Fellow in Democracy, Citizenship, and Constitutionalism at the Political Science Department, University of Pennsylvania. He is available at      jaime.lluch@gmail.com

For more information on autonomism in Puerto Rico, please read:

Jaime Lluch, “Autonomism and Federalism,” in Publius: The Journal of Federalism, Vol. 42 (1) Winter 2012.    

Jaime Lluch, “Sovereigntists and Associationists: Explaining the Origins of National Movements’ Political Orientation,” in Nationalism and Ethnic Politics, Vol. 17, No. 2 (April, 2011). 

Keith Ellwood, ‘Catalan flag Girona’, 29 April 2012 via Flickr. Creative Commons Attribution.

Last month the Catalan Parliament adopted a ‘Declaration of Sovereignty of the Catalan People’ (85 votes in favour, 41 against and 2 abstentions), as the first step in its plan of ‘National Transition’, leading up to the holding of a referendum on the constitutional future of Catalonia in 2014. The declaration was jointly proposed and endorsed by the Catalan Government (governed by Convergencia i Unio – CIU) and the main party in the opposition (Esquerra Republicana de Catalunya – ERC), among others (Iniciativa per Catalunya Verds – ICV, one ‘critical vote’ from Candidatura d’Unitat Popular – CUP).

The debate in the Parliament also included the consideration of an alternative declaration (Partit dels Socialistes de Catalunya – PSC) on ‘The right to decide of the people of Catalonia’, which omitted any reference to ‘sovereignty’, and provided specifically that the process would require an agreement with the Spanish Government and should guarantee a plurality of options. Considered together, and despite their important differences, the overall support for the right of Catalonia to decide its own constitutional future (‘dret a decidir’) is almost 80% of the members of the Parliament.

The Declaration of Sovereignty was adopted in defiance of the Spanish Government (governed by Partido Popular – PP), which has made clear that it considers a Catalan referendum would be in violation of the Constitution and has stated it will use all legal avenues available to stop it. So far, the Government has not taken any action against the Declaration because it is a political document, but the urgent report it requested from its legal services has recommended that the Declaration be challenged before the Constitutional Court. With both levels of government preparing their constitutional strategies, the situation is being described as ‘two trains driving toward each other’.

Background

The current process began on the 11th September 2012, (the Catalan ‘Diada’, commemorating the fight for Barcelona in 1714), when one and a half million people came out into the streets in Barcelona in support of independence for Catalonia. The Catalan Prime Minister, Artur Mas (CIU), called new elections to secure a mandate to hold a referendum and lead the process of ‘national transition’ to ‘Catalonia’s own state’. These elections became a pre-referendum in themselves, with Catalonia’s right to decide and the different options for its constitutional future being the central focus of all parties (the austerity measures were also an important element). The results supported the holding of a referendum but strengthened the more hard-line ERC, with which Artur Mas has now had to reach an agreement to take his plan forward. The most notable losers, however, were the PSC and their intermediate federal option, which proposed a reform of the Constitution in order to improve the position of Catalonia within the overall system.

After the election, one of the central points of the agreement between CIU and ERC is to hold a referendum on Catalan Independence in 2014. Deciding on the date for the referendum actually delayed the agreement, as ERC initially insisted on having it in 2013. This agreement also sets out a plan for the process of ‘National Transition’ of Catalonia, with five different steps:

1. Declaration of Sovereignty of the People of Catalonia (first plenary session);
2. Enactment of a Statute on Consultations (beginning in January);
3. Start of negotiations with the Spanish State in order to reach an agreement on holding a referendum;
4. Creation of a Catalan Council for National Transition;
5. To have everything set up by the end of 2013 in order to hold the referendum in 2014. This can, however, be postponed by agreement between both parties.

Following the above, the Declaration of Sovereignty was adopted on 23 January and provides that, in accordance with the will of the people of Catalonia, the Parliament agrees to start the process towards them exercising their right to decide their collective political future. It then sets out the principles that will guide this process: Sovereignty, Democratic Legitimacy, Transparency, Dialogue, Social cohesion, Europe-ism, Legality, Principal role for the Parliament and Participation. Since then, the Catalan Government has approved the creation of the Advisory Council for National Transition, as an expert body to advise it on the legal and technical aspects of the process, and has proposed the establishment of a cross-party committee on the ‘right to decide’ in the Catalan Parliament, which will include representatives from civil society and local government (‘Catalan Pact for the Right to Decide’). The Parliament itself has also agreed to restart the debates on a Statute on Consultations, which had begun in the previous session, with an ample majority (CIU, ERC, PSC and CUP – ICV wanted the cross-party committee to be set up first).

The legality issue

Specialised legal opinion is divided on whether Catalonia could hold a referendum within the current constitutional framework. Arguments against it are based on Arts. 1 and 2 of the Constitution, which provide that ‘National sovereignty belongs to the Spanish people’ and that ‘The Constitution is based on the indissoluble unity of the Spanish Nation’, and on the exclusive competence of the central state over the ‘Authorization of popular consultations through the holding of referendums’ (Art. 149.1.32). It has, therefore, been put forward that the referendum would require the consultation of the whole of the Spanish people, or could not be held without a previous reform of the Constitution in this sense.

On the other hand, arguments in favour of the possibility of Catalonia being able to hold a referendum within the current constitutional framework are based on the democratic principle, also in Art. 1, which is one of the foundations of the system and informs the interpretation of the rest of the constitutional text. Acknowledging that independence would require a reform of the Constitution, it has been suggested that the referendum could be formulated as a consultation to Catalan citizens on the initiation of such a reform. The possible mechanisms for this would be either a referendum with the authorisation of the central authorities (on the basis of a state or Catalan statute), or a ‘non referendum-consultation’, which would then not require authorisation. In accordance with the Constitutional Court’s case law, this could then not be based on the electoral register and could not involve the institutions or benefit from the safeguards of the ordinary electoral procedure (SSTC 103/2008).

Even if they follow the ‘non-referendum consultation’ option, which seems to be the Catalan Government’s current preference due the central state’s clear opposition to the referendum, there is a strong possibility it would be challenged before the Constitutional Court. In this case, previous case law seems to indicate the Court will not be very receptive to claims that Catalonia is a sovereign people and can decide its own constitutional future (SSTC 103/2008 and 31/2010). It has, however, accepted that Catalonia has the competence to hold ‘non referendum consultations’ more generally.

If, as they are threatening to do, the Catalan Government goes on with the consultation regardless, the Constitution authorises the Central authorities to take all measures necessary if ‘a Self-governing Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way that is seriously prejudicial to the general interest of Spain’ (Art. 155). As a last resort, even the armed forces could be used in order to secure the “integrity” of Spain’s territory (Art. 8).

There is still another possibility, at least in theory: the Constitution enables the Spanish Government to hold referendums on political issues of special importance (Art. 92). Such a referendum would not be legally binding, but its results would show the strength of the support for independence, and, at the same time, put a stop to the allegations that the central government is undemocratic. A well respected constitutional lawyer (Rubio Llorente) has suggested that this could be a way to ease the tension.

The European Union 

The European Union is also playing a central role in this debate, to the extent that ‘Catalonia, new state of Europe’ was the slogan of the initial pro-independence march on September 11th 2012. Following the same line, Artur Mas’ first proposed question for the referendum was ‘Would you like Catalonia to be a new state of the European Union?’, and both the government agreement between CIU and ERC and the Declaration of Sovereignty also refer specifically to the holding of a consultation on Catalonia becoming a new State ‘of Europe’ or ‘within the European Framework’.

Interestingly, the process of ‘National Transition’ itself is also being presented as located within the wider European constitutional framework. The Declaration of Sovereignty states that the process will defend and promote the founding principles of the European Union (‘Europism’) and will involve dialogue and negotiation with the Spanish state, the European Institutions and the international community (‘Dialogue’). Evidence of this is also that Catalan citizens and Members of the European Parliament have appealed to different EU Institutions to obtain some recognition and even protection for Catalonia from Spain. The European Institutions have so far been largely unreceptive and, after making some comments that seemed to open the door for an independent Catalonia automatically becoming part of the EU, Viviane Reading, Vice-President of the European Commission and Commissioner for Justice, Fundamental Rights and Citizenship had to write a letter to the Spanish Government apologising and stating that the EU could not recognise a unilateral declaration of independence of a part of one of its Member States.

Independence and other options 

Although there is a strong majority in the Catalan Parliament in favour of Catalonia’s right to decide its constitutional future, there is a diversity of positions on what the final outcome of the process should be.  Even within the governing coalition party, there are different opinions about the final objective of the ‘National Transition’. Options include ‘full independence’ (Convergencia Democratica de Catalunya, ERC, CUP), a ‘confederation with the Spanish State’ (Unio Democratica de Catalunya), and different forms of ‘federalism’ (ICV and PSC).  As the legitimacy of their claim for the ‘right to decide’ is based on their strong majority, they are now faced with the complicated task of formulating a referendum (or consultation) question that has the agreement of all parties, and there have already been some suggestions of including different options apart from the status quo. On the other hand, the Catalan PP, which is opposed to the ‘right to decide’, has also announced it will put forward a proposal for a change in the financing system of Catalonia, as the ‘constitutional’ alternative to the above.

Implications for Scotland?

There is no doubt that events in Scotland are influencing those in Catalonia. If both referendums are to be held in 2014, the question then becomes whether events in Catalonia might influence those in Scotland. One way in which Catalonia could influence Scotland would be by increasing the level of confrontation between the ‘yes’ and ‘no’ campaigns, although this seems unlikely. A second possibility would be by bringing the possible third option/second question back into the debate, although the current process seems a bit too far ahead for that. Where the influence of developments in Catalonia might be felt more in Scotland is in attempts to negotiate with the European Institutions, as both Catalan and Spanish Governments are putting them under a lot of pressure. A possible breakaway-independent Catalonia is much more problematic for the EU than a possible negotiated-independent Scotland, but in order to avoid having to face the former they might make the procedures for accession of newly-independent regions very complicated for all possible candidates.

Dr. Elisenda Casanas-Adam is a Lecturer in Public Law and Human Rights in the Edinburgh Law School. An earlier version of this article appeared on the Scottish Constitutional Futures Forum blog.