International and European Institutions and Catalan Nationalism

Abstract

The exercise of public power by substate entities poses a challenge for international law. Although such entities lack international legal personality, their actions can have international significance and, because they are state organs, must always adhere to the international obligations assumed by the state. In Spain, the autonomous communities exercise broad powers, which, in the case of Catalonia (via the Generalitat), include education, healthcare, prisons and police. Research shows that the Generalitat has exercised – and, to some extent, continues to exercise – some of its powers in disregard of certain constitutional and legal obligations. This action by public authorities in disregard of the law can have international consequences, and various international organizations have expressed positions on it through their bodies. This paper examines these positions on the Generalitat’s actions in connection with the secession process and other related policies, including both those that have been critical of this behaviour and those that have expressed direct or indirect support for it. The practice of the European Union, the Council of Europe, and the UN Human Rights Council through its Special Rapporteur on minority issues is analysed.

1 Introduction

Between September and October 2017, a series of events unfolded in Catalonia, Spain, that attracted the attention of global public opinion. The authorities of the region or comunidad autónoma [literally, autonomous or self-governing community, the first-level administrative divisions into which Spain is divided] held a referendum on self-determination, passed laws that effectively abrogated the Spanish Constitution in Catalonia, and declared the region’s independence. In response, the Spanish government, via the Senate, took extraordinary measures, provided for under Article 155 of the Spanish Constitution, to depose the regional authorities, place the civil servants attached to them under the orders of the central government, and call regional elections. Additionally, the Spanish Constitutional Court declared the laws and decisions passed by the regional parliament to establish the Catalan republic null and void.¹

But the events of September and October 2017 were simply the culmination of a process that had been underway for several years and which, in some ways, continues today. The study of the various aspects of this singular situation (regional authorities working actively and explicitly for years to create an independent state in the territory under their power, in disregard of the applicable constitutional provisions) requires a fairly complex multi-faceted approach. This paper will address only one dimension of this phenomenon: the positions taken by international authorities or institutions concerning the behaviour of the Catalan regional authorities that make up what is known in Catalan as the Generalitat.

Consequently, it will not examine international appraisals of the actions of the Spanish government and other central state institutions, which will be explored elsewhere in this special issue. At the same time, it will place the focus on the appraisals made by institutions of the European Union (EU), of the Council of Europe, and linked to the United Nations (UN). It will thus touch on the main institutions to weigh in on the Generalitat’s actions in the context of the process that led up to the disconnection laws of September 2017 and the referendum on self-determination and declaration of independence in October that same year. As will be seen, whereas some of these institutions have been critical of these actions, others have justified them. However, to better understand the content of their appraisals, it is necessary, first, to offer a brief overview of how the competences of the regional and central authorities are organized in the complex state that is Spain and, second, to describe which of the behaviours and actions of the Generalitat are subject to international appraisal. To this end, Sect. 2 will offer an overview of the Generalitat’s competences, whilst Sect. 3 will describe the various actions it took within the process culminating in the events of 2017. These actions entailed the violation of subjective rights, especially, although not exclusively, in relation to linguistic matters. This paper will thus address both language-related issues and others issues related to limitations of rights in connection with the events of the secession process.

From outside Spain, the depth of the country’s decentralization and the broad powers enjoyed by the institutions of the autonomous communities are sometimes misunderstood. As will be seen, the public power with which most citizens have everyday contact is not the central state institutions, but the regional and, where applicable, local ones, which are also strongly conditioned by regional regulations.

The situation experienced in Spain is thus a good opportunity to examine the role played by substate entities at an international level.² However, such an examination likewise falls beyond the scope of this contribution. Therefore, what is explained here will serve only, where appropriate, as material for such an analysis, which should be undertaken with some intensity in the coming years, as the complex nature of states has an undeniable international impact.³

2 The Generalitat in the “State of Autonomous Communities”

2.1 The Spanish Constitution and the Statute of Autonomy of Catalonia

As noted, Spain is a highly decentralized state with a three-level territorial-administrative structure: the central state (hereinafter, the state), the autonomous communities, and local governments. The Constitution, the Statutes of Autonomy of the autonomous communities, and some specific laws (in particular, Law 7/1985, of 2 April, regulating the Bases of Local Government (Official State Gazette (hereinafter, BOE, from the Spanish), of 3 April 1985) coordinate this multi-level governance in which the state and the autonomous communities play the central role. This is because, unlike local governments, these two levels have legislative power, a power that local authorities, which have only regulatory and executive powers, lack.

Thus, in Spain, the Constitution, as the supreme law of the land, prevails over both state and regional legislation; however, both the state and the autonomous communities have legislative power. There is no hierarchical relationship between state and regional legislation, as each one takes precedence in the matters falling within its exclusive competence, which is determined by the Constitution and the respective Statutes of Autonomy. These Statutes of Autonomy, in turn, are hybrid norms, insofar as they take the form of organic laws (and, therefore, are state laws), but are also the highest law in the regional legal system, outranked only by the Constitution.

Given that regional regulations take precedence over state regulations in those matters over which an autonomous community has competence, the delimitation of which issues fall within state or regional jurisdiction is of enormous importance. Disputes between the state and the autonomous communities over this issue are settled by the Constitutional Court.⁴ This Court also hears cases on the unconstitutionality of state and regional laws, which includes ensuring that both the state and the autonomous communities act within the scope of their competence, such that a state or regional law that exceeds the competences attributed to the state or autonomous community in question will be considered unconstitutional and expelled from the legal system.⁵ To determine the scope of regional competence, it is essential to analyse the territorial scope of these competences in those cases in which there are connections with more than one autonomous community.⁶

The coordination of state and regional competences poses special challenges in those cases in which a competence is shared, i.e. matters in which both the state and the autonomous community have regulatory power. One such example is matters of civil law, where the state, in principle, has exclusive competence, without this affecting the competences of some autonomous communities in certain areas of civil law, although in others the state maintains its sole competence.⁷ In other cases, the state retains the competence to establish the bases for regulation, whilst the autonomous community can regulate matters not considered basic.⁸ This overlap between basic state competence and regional competence arises in many matters, including some that are germane to the issues dealt with here, such as education.⁹

Regional competence also entails the creation of a regional government capable of fulfilling the corresponding duties. Thus, competence in educational matters means that it is the autonomous community, as opposed to the state, that directs the civil servants and other staff in that community’s public education system. The same is true of healthcare workers or those who carry out other regional competences, including the police, since, notwithstanding the state’s exclusive competence in matters of public safety, the creation of regional police forces is possible.¹⁰ Thus, under Article 37 of the Organic Law on State Security Forces and Corps,¹¹ some autonomous communities, including Catalonia,¹² have their own police.

In light of the foregoing, Spain must thus be regarded as a complex state in which the autonomous communities exercise considerable power. In many of the matters falling within the competence of the autonomous communities, the state retains the possibility of issuing basic regulations; nevertheless, it is the autonomous communities that have the legislative power beyond that basic legislation and, also, that exercise the executive power, to which end they have personnel attached to the regional institutions, not the government of Spain. As a result, today, in Spain, the public power exercised in the territory is basically regional. The state powers that directly influence people’s lives are limited to the state tax office (although there are also regional tax offices), the collection of Social Security contributions and payment of pensions, and the administration of justice, as both judges and magistrates and prosecutors are state personnel. However, even in this area, there are regional competences, specifically, over the “judicial office”, i.e. the civil servants who assist the courts, as well as with regard to the material resources available to them.¹³

2.2 Component Institutions of the Generalitat de Catalunya

In accordance with the previous section, Spain’s autonomous communities and, specifically, the autonomous community of Catalonia are legal, political and administrative structures that exercise their own public power, which is subject to the provisions of the Constitution and state regulations in the sphere of state competence – which, as seen, includes basic legislation on various matters – but which is made visible to the public through bodies of civil servants attached to the autonomous community, not the government of Spain. These bodies of civil servants attached to the Generalitat include teachers, healthcare workers and police.

But how is regional public power organized? In Catalonia, this power is called the Generalitat¹⁴ and includes the Parliament of Catalonia, the presidency of the Generalitat, and the government of the Generalitat,¹⁵ in addition to other institutions, which are set out in Title II, Chapter V of the autonomous community’s Statute of Autonomy.¹⁶ Local government in Catalonia is also formally part of the Generalitat,¹⁷ although in this case the basic state regulations, set out in the Law regulating the Bases for Local Government, must be taken into account.¹⁸

The institutions that make up the Generalitat thus constitute an almost complete state apparatus: it has a legislative branch (Parliament of Catalonia), an executive branch (the government of the Generalitat), a figure equivalent to a head of state (the president of the Generalitat), and complementary institutions that perform functions that could be considered similar to those of a Council of State (Council of Statutory Guarantees), Office of the Ombudsperson (Síndic de Greuges), or Court of Auditors (Sindicatura de Comptes). Missing from this scheme is the judicial branch, as, in the Spanish constitutional architecture, the judiciary is a state rather than regional power; the only competence that, in principle, an autonomous community exercises in relation to the judicial function is thus the aforementioned auxiliary one with respect to the judicial office. Although each autonomous community does have a High Court of Justice, which culminates the judicial organization in its territory,¹⁹ this does not alter the relationship of that High Court of Justice to a judiciary set up as a state power, whose governing body, the General Council of the Judiciary, is also a state and not regional one.

The above description of the president of the Generalitat as equivalent to a head of state merits a brief commentary. Obviously, it cannot be understood literally, as an autonomous community is not a state; rather it was meant to indicate that the president of an autonomous community and, specifically, the president of the Generalitat, not only exercises the role of head of government of that autonomous community, but also goes further, representing the various regional institutions as a whole. Thus, the president of the autonomous community both assumes the representation thereof and serves as the ordinary representative of the state therein.²⁰ This is why, should any of the regional institutions be observed to act inappropriately, the Spanish government can summon the president of the autonomous community²¹ even if the breach justifying the summons was not committed, in the case of Catalonia, by the government of the Generalitat itself.²² In Catalonia, the status and functions of the president of the Generalitat are regulated in Article 67 of its Statute of Autonomy and in the Law on the Presidency of the Generalitat and of the Government.²³

2.3 Plurality of Governments, Rule of Law and Democratic Principles

The complex nature of Spain’s territorial organization means that, whilst, from an international perspective, the subject responsible to other states, the international community or international organizations such as the European Union is obviously the Kingdom of Spain, the obligations of conduct and result undertaken by Spain as a subject of international law must be redirected to one or more of the levels described in Sect. 2.1 (central state, autonomous communities and local government). Furthermore, with regard to the autonomous communities, the breadth of the competences that they assume and the fact that they are set up as political and legal subjects that have an almost complete set of institutions (as well as a dense institutional framework that includes thousands of civil servants directly attached to the regional institutions as opposed to those of the central state) make them an important actor that cannot be confused with the central state institutions or even the Kingdom of Spain as a subject of international law. This is without prejudice, of course, to the fact that, as noted, from the point of view of international legality, the actions of the bodies of the autonomous communities are subject to any international norm that is binding on the Kingdom of Spain.

Beyond the legal formalism arising from the existing difficulties to endow substate entities with international relevance,²⁴ it is worth taking a realistic approach that, without seeking to make such substate entities subjects of international law, examines how the reality of the complex state influences international law and practice and vice versa. The case of Catalonia and the events that have unfolded there in recent years offers an excellent opportunity to verify this. On the one hand, the Generalitat has explicitly sought to become an international actor with a certain degree of international legal personality in order to someday become a political subject, i.e. a state (an issue that falls beyond the scope of this paper); on the other, the actions of the regional institutions have begun to receive some – albeit, as will be seen, still limited –international attention.

The following section will examine these actions with potential international relevance from the perspective of the European Union, the Council of Europe and other bodies. To this end, it will take as a reference the parameters of democratic principles and the rule of law, as these elements have delimited boundaries recognized in both the European Union and the Council of Europe, although it will also consider other institutions.

3 The Generalitat, the Secession Process and Other Related Policies

3.1 Overview

Since 2013, the Generalitat de Catalunya has been implementing a plan to hold a referendum on self-determination that would transform the autonomous community into a state independent from Spain.²⁵ In the early years of the implementation of this plan, the form that this independent state would take was not specified. However, by 2015,²⁶ its proponents, the nationalist political forces that controlled the institutions of the Generalitat and a good share of Catalan local governments, had come to assume that the new state would take the form of a republic, i.e. the Catalan Republic.

In 2014, the government of the Generalitat organized a non-binding ballot on Catalonia’s political future, in which the people were asked whether they wanted Catalonia to become an independent state.²⁷ Notwithstanding a Constitutional Court ruling that it be suspended,²⁸ the government of the Generalitat went ahead with the non-binding vote, which was held on 9 November 2014. As a result, criminal actions were brought against the then president of the Generalitat, Artur Mas, and two of his ministers for disobeying the Constitutional Court’s decision.²⁹

In 2017, the Parliament of Catalonia passed the “disconnection laws”, which, on the one hand, called for a referendum on self-determination in Catalonia to be held on 1 October 2017 and, on the other, repealed the Spanish Constitution in Catalonia and laid out the procedure to be followed to establish a Catalan republic in the territory of the autonomous community.³⁰ On the basis of Law 19/2017, the government of the Generalitat called the self-determination referendum.³¹ Although the Constitutional Court suspended both the disconnection laws and the call for the referendum on self-determination,³² the referendum was nevertheless held. A few days later, on 10 October 2017, the then president of the Generalitat, Carles Puigdemont, proclaimed Catalonia’s independence in the Parliament of Catalonia.³³ Although the state responded by taking the measures provided for under Article 155 of the Constitution,³⁴ the Parliament of Catalonia reiterated the declaration of independence on 27 October 2017,³⁵ just hours before the government of Spain dismissed the government of Catalonia in application of the constitutional measures ultimately adopted by the Spanish Senate almost simultaneously with the Parliament of Catalonia’s declaration of independence.³⁶

Whilst these events may be the most visible aspects of the procés, they were accompanied by other actions of the Generalitat and Catalan local governments intended to make Catalonia’s break with the rest of Spain more visible and to implement nationalist policies with regard to language, symbolic control of the territory, and the creation of obstacles for the state authorities to exercise their powers in Catalonia. The following sections will consider some of these actions before turning to the attention they have received internationally. This, for the most part, has been little more than passing, most likely due to the doctrine whereby the procés should be considered an internal Spanish affair to be dealt with by the country’s own authorities. Nevertheless, as will be seen, this is, at least in part, a fiction that does not entirely reflect the reality. It should likewise be noted that, once the measures taken with respect to the Generalitat under Article 155 of the Constitution were lifted,³⁷ the nationalist government of Catalonia made it clear that its goal remained Catalonia’s independence and that it would continue to direct its actions towards achieving this goal,³⁸ which has meant, as will be seen, the continuity of unlawful actions by the public authorities in Catalonia.

Before that can be addressed, however, it should be recalled that the goal of turning part of Spain’s territory into an independent state is contrary to the Spanish Constitution, Article 2 of which affirms the “indissoluble unity of the Spanish nation”, meaning that any secession process is contingent on a prior constitutional amendment. This explains why the Constitutional Court has declared the successive declarations, laws and regulations enacted by the Parliament of Catalonia and the government of the Generalitat as part of the procés unconstitutional, beginning with Resolution 5/X of the Parliament of Catalonia, of 23 January 2013, adopting the Declaration of sovereignty and right to decide of the people of Catalonia,³⁹ which the Constitutional Court declared null in its judgment of 25 March 2014.⁴⁰

Accordingly, authorities and public powers violate the Constitution when, in their capacity as such, they engage in actions that not only deviate from the legal framework but are also intended to replace it, ignoring the established procedures for doing so. The Constitutional Court’s judgment of 2 December 2015⁴¹ was clear in this regard, finding Resolution 1/XI of the Catalan Parliament, of 9 November 2015,⁴² unconstitutional and stating (Ground 4) that: “As a result, the holders of public office are bound by an inescapable duty to abide by said fundamental statute. This does not necessarily mean defending its entire content from an ideological standpoint; however, it does mean undertaking to perform one’s duties in accordance with the Constitution and with respect for the rest of the legal system (…). The fact that this is the case for all public authorities indisputably arises from our State’s being constitutional and based on the rule of law.”

This is a crucial point, because at no time will the following sections consider the actions of private individuals or associations, but only those carried out by public powers or authorities in their official capacity as such. It is an important differentiation, as nothing prevents individuals, private organizations or even the authorities, when they are not acting in fulfilment of their duties, from questioning, criticizing or proposing measures that, without being criminal, would lead to the modification of the structure of the state. In other words, nothing prevents advocacy of or efforts to achieve Catalonia’s secession; however, they must be done without compromising the institutions that belong to all and without placing the government at the service of a goal that is contrary to the legal system from which the public power exercised by that government is derived. Needless to say, this is a highly significant distinction for the present purposes.

3.2 Domestic Lawfulness of the Generalitat’s Actions

Notwithstanding the above, the Generalitat’s actions since 2012 have been characterized by the use of public power to achieve the repeal of the Constitution in Catalonia in disregard of the constitutional provisions.⁴³ These actions began in 2013, when the then president of the Generalitat, Artur Mas, acting in his official capacity, wrote to various foreign leaders, requesting their support to hold a referendum on self-determination in Catalonia.⁴⁴ As already explained, the following year, in 2014, the Generalitat went ahead with the non-binding vote on Catalonia’s political future that had been suspended by the Constitutional Court, and, in 2015, in what was the autonomous community’s 11th legislative term, it began to openly implement a political and government agenda aimed at developing the “state structures” needed to declare Catalonia’s independence following the holding of a referendum on self-determination.

The first formal document adopted in pursuit of this plan, which would be carried out between 2015 and 2017, was the aforementioned Resolution 1/XI of the Parliament of Catalonia, of 9 November 2015,⁴⁵ in which the Parliament “solemnly declare [d] the start of the process to create an independent Catalan state in the form of a republic”, in addition to reiterating that “this House and the process of democratic disconnection from the Spanish State shall not be subordinated to the decisions of the institutions of the Spanish State, in particular the Constitutional Court”. As noted, this Resolution was declared unconstitutional by the Constitutional Court, but that did not prevent the Parliament of Catalonia or the government of the Generalitat from explicitly continuing to implement the process intended to pave the way for Catalonia’s independence. In this regard, the government agenda submitted to the Parliament of Catalonia by the then candidate to the presidency of the Generalitat, Carles Puigdemont, is especially significant. In his speech to Parliament, he stated, “We have to do it right, deploy the Government Plan and embark on our path in keeping with what we approved in the declaration of 9 November: launch the process to establish an independent state in Catalonia – because the decisions of the Parliament of Catalonia are sovereign decisions; open a constituent process based on citizen participation; and show a consistent willingness to engage in dialogue and negotiation, obviously with the Spanish state, with the European Union and with the international community […].” He added that the tasks to be carried out included, among others, “Two, the definitive design and fine-tuning of the state structures. Three, the production in Parliament of the bill on the constituent process. Four, the passage of the law on the legal transition. And, five, full internationalization of the process of establishment of the future independent Catalan state.”⁴⁶

The events of the legislative term in the Parliament of Catalonia and the actions of the government of the Generalitat in 2016 and 2017 confirmed this government agenda, with the Constitutional Court striking down Catalan regulatory provisions or suspending their effects on grounds of unconstitutionality on several occasions.⁴⁷

The repeated declarations of unconstitutionality, suspensions, and prohibitions of action by the Constitutional Court did not, however, prevent the Generalitat from continuing to pursue the activities that would lead to the self-determination referendum of 1 October 2017 and the declarations of independence on 10 and 27 October that same year. In this regard, the photograph of Mr Puigdemont posing with the various injunctions he had received from the Constitutional Court, circulated by Mr Puigdemont himself as proof of his willingness to ignore them, has become iconic.⁴⁸

It should also be recalled that the use of public funds for illegal purposes can be considered embezzlement and, therefore, corruption. Some of the politicians convicted for their involvement in the events of 2017 were thus found guilty of embezzlement.⁴⁹ Likewise, with regard to the European arrest warrants issued by the Spanish Supreme Court for the parties involved who had fled from justice, the judicial bodies of other EU Member States considered the charge of embezzlement a case of corruption.⁵⁰

3.3 The Constitutional Obligation of Administrative Neutrality

The plan to achieve Catalonia’s independence hinged on making it clear that public power in Catalonia (the Generalitat and local governments) was no longer considered a part of the Spanish state, but rather an agent of the nascent Catalan republic. There was thus talk of “postautonomia” [post-autonomous community], as a period prior to independence.⁵¹ The way to draw attention to this new situation was, among other symbolic actions, for the various public authorities to stop using the Spanish flag and begin to identify explicitly with the nationalist movement. One way to do that, in turn, was to fly the pro-independence flag in publicly owned buildings and spaces.⁵²

The removal of the Spanish flag from public buildings entailed a breach of Article 3 of the Flag Law.⁵³ Nevertheless, a large number of Catalan town councils decided to take it down, prompting the filing of more than a hundred actions petitioning the courts to enforce the regulations requiring the Spanish flag to be flown on official buildings.⁵⁴ Even today, new actions are being brought for the enforcement of these regulations at Catalan town halls. According to a report by the association Impulso Ciudadano [Civic Impetus], in 2022, the Spanish flag was absent from the town halls of 777 of Catalonia’s 947 municipalities.⁵⁵ Furthermore, 105 Catalan town halls fly the pro-independence flag.⁵⁶ This is compounded, as mentioned earlier, by the presence of pro-independence symbols on public buildings. Especially after the failed secession in October 2017, banners were displayed on public buildings with slogans in support of nationalist politicians, including both those who had been arrested and tried for the events of 2017 and those who had fled from the Spanish justice system. These banners were joined by other tokens of support, such as yellow ribbons.⁵⁷ According to the aforementioned report, in 2022, 114 Catalan town halls were still displaying nationalist propaganda.

The display of symbols of support for nationalism on public buildings has also had significant political consequences. Joaquim Torra, who was president of the Generalitat from 2018 to 2020, was ousted from office after being convicted for disobedience for refusing to take down the nationalist symbols displayed on Generalitat buildings after being ordered to do so by the electoral board in the run-up to the April 2019 general elections.⁵⁸ He was subsequently convicted again for failing to take down – this time outside of the electoral period – a banner in support of the “political prisoners” after having been ordered to do so by the High Court of Justice of Catalonia.⁵⁹

Spanish case law considers the display of partisan symbols on public buildings a violation of the obligation of administrative neutrality and a limitation on citizens’ ideological freedom, as the ideology backed by the government, in its capacity as such, is placed at an advantage over other approaches.

The courts have similarly rejected the taking of partisan positions by the governing bodies of Catalan public universities, which had repeatedly adopted resolutions or signed manifestos in support of nationalist theses. The Spanish Supreme Court maintains that such partisan positionings by the governing bodies of universities is contrary to the law.⁶⁰ As will be seen, the adoption of partisan positions by public universities is currently being considered by the European Parliament, along with the systematic coercion of those on university campuses who openly express their opposition to nationalism, coercion that is violent and has, at times, been met only with passivity by the regional police. Section 4.1 will revisit this point.

3.4 The Education System

Another especially controversial area, which has also made its way to European institutions, is education. As noted in Sect. 2.1 above, the Generalitat has competence over education. The state has the power to establish the basic law on the matter; however, beyond that, it is the Generalitat that organizes the studies. Additionally, the teachers and education inspectorate are attached to the Generalitat, with the state retaining what is known as the “High Inspectorate”, which does not have duties of direct control over education, but rather merely supervises the actions carried out by the Generalitat, with a limited capacity to influence the educational reality.⁶¹

The Generalitat’s control over education has meant that public schools have been used as tools during the secession process. For instance, schools were used as polling stations in both the (unconstitutional) non-binding vote of 9 November 2014 and the referendum on self-determination of 1 October 2017. In the wake of 1 October, schools sent out statements to families criticizing the actions of the Spanish government in relation to the aforementioned self-determination referendum and organized events repudiating those actions, sometimes with the participation of students.⁶²

The use of the education system to transmit identity-based values has also been denounced. It recently came to light that European funds were being used to fund the “Sensei programme”, one of whose aims is to train new teachers in “the identity traits of the Catalan education system”.⁶³ This prompted the MEP Maite Pagazaurtundúa to call on the Commission to explain the use of European funds for this purpose.⁶⁴

In any case, in the field of education, the most controversial point is that of the language of instruction or institutional language, that is, the language used to explain non-language subjects, for signage in the schools, and in the educational community’s communications, both internally and with third parties.

In accordance with the instructions issued by the Generalitat to schools, this language is Catalan⁶⁵ and, in the Val d’Aran region, Occitan, two of the official languages in Catalonia. Spanish, which is also an official language in Catalonia, as in the rest of Spain, is not considered a normal language of instruction and its use is limited to that needed to ensure that students have a full command of the language by the time they complete their compulsory education. In other words, Spanish is a language that is taught, but not a language used to teach. In fact, the courts have established that the presence of Spanish in the Catalan education system is “residual”.⁶⁶

This residual nature of Spanish poses certain problems. First, it does not reflect the linguistic reality of Catalonia, where Spanish is the mother (first) tongue of 52.7% of the population versus 31.5% for whom Catalan is and 2.8% for whom both Catalan and Spanish are.⁶⁷ Nor does it meet the constitutional requirements arising from the official nature of Spanish, whereby it should be a language of instruction.⁶⁸ As the Constitutional Court has established, this obligation to ensure the presence of the official languages can be met in several ways. Families can be offered the choice of which language they want their children to be taught in, provided due care is taken to guarantee that, regardless of the chosen teaching language, students have also mastered the other official language (or languages) by graduation. Alternatively, schools can offer just one line of teaching, but which uses all the official languages as teaching languages. They need not be used for equal amounts of teaching time, but neither is it admissible for any official language to be excluded as a language of instruction.

In the case of Catalonia, neither of these options is used: Catalan is the sole language of instruction (along with Aranese in the Val d’Aran region) and the only one considered an “institutional language”.⁶⁹ Given that this exclusion of Spanish is contrary to the Constitution, some families have turned to the courts with the aim of securing an education in which both Spanish and Catalan are used as languages of instruction. These families have managed – albeit only for their own children and the group that they are part of – to ensure that 25% of teaching is done in Spanish (the rest is done in Catalan). Yet despite the established case law, the Generalitat refuses to modify the education system. As a result, each family has to individually request that their children receive a bilingual education.

In December 2020, however, as a result of an appeal filed by the Spanish Ministry of Education, the High Court of Justice of Catalonia handed down a decision requiring the Generalitat to offer Catalan students an education in which each of the official languages was used, at least, 25% of the time.⁷⁰ Although the judgment has been final since January 2023, the Generalitat has refused to execute it. In light of this refusal, several people and organizations requested its enforcement. With the aim of preventing the enforcement proceedings, the government of the Generalitat and the Parliament of Catalonia enacted a decree-law and a law expressly establishing Catalan as the sole language of instruction in Catalan schools⁷¹ and prohibiting the presence of the various languages in education from being based on percentages or any other numerical parameter.⁷² The High Court of Justice of Catalonia, responsible for deciding on the applications for the enforcement of the judgment of 16 December 2022, considered both Decree-Law 6/2022 and Law 8/2022 unconstitutional.⁷³ However, in Spain, ordinary courts cannot refrain from applying rules with the rank of law on the grounds that they consider them contrary to the Constitution. In such cases, the court hearing the case has to refer the laws that it considers to be in breach of the Constitution to the Constitutional Court so that it can rule on that unconstitutionality.⁷⁴ That is what the High Court of Justice of Catalonia did in relation to the aforementioned decree-law and law, through its Order of 28 July 2022. The Constitutional Court will thus have to rule on the constitutionality of both laws. In addition to the question of unconstitutionality raised by the High Court of Justice of Catalonia, several MPs have also filed an action of unconstitutionality regarding these laws. These proceedings should also result in a ruling by the Spanish Constitutional Court on the compatibility or contradiction between these laws and the Spanish Constitution. At the time of writing (May 2023), the Constitutional Court had not yet rendered any judgment on this issue.

As the preceding paragraphs show, maintaining a school system in which Catalan is the sole language of instruction is a priority goal for the Generalitat. The argument used to justify the exclusion of Spanish as an institutional language is that Catalan is the language of Catalonia (Article 2 of Law 8/2022) and, also, that a policy of linguistic normalization is needed to compensate for the forced hiatus in Catalan between the years of 1939 and 1977 as a consequence of the policies implemented under Franco.⁷⁵ Section 4.3 will revisit this issue. In any case, this exclusion of Spanish as an institutional language at schools is consistent with the goal of having Catalonia break off its ties with the rest of Spain and is thus related to the actions carried out in the context of the secession process that led to the events of 2017.

4 The Positioning of International Organizations

4.1 Overview

As seen, the actions described in the previous section entail various violations of Spanish law, including the breach of both specific regulations (Flag Law, election regulations, etc.) and constitutional requirements regarding the need for public authorities to behave in accordance with the Constitution and the rest of the legal system and concerning the presence of Spanish in the education system. They are also an infringement of the obligation, on the part of the authorities, to comply with the orders of the electoral board and the requirements of judicial decisions.

However, none of this is likely to be of international significance. Although the purpose of the secession process is to create a new state and that purpose obviously has a dimension external to the country from which the secession is taking place, the present contribution is not concerned with that, but with how the various actions carried out in the context of that process – and briefly described in Sect. 3 above – might be appraised from abroad. The actions themselves would be considered internal affairs of Spain and, thus, beyond the scrutiny of other states, or, at least, they would be from a classical perspective of international relations, whereby the internal life of states is not subject to scrutiny by the international community.

Of course, today, this strict separation between the internal lives of states and international law is subject to many exceptions, due to the need for state actions to comply with certain standards that states have internationally undertaken to meet, specifically with regard to respect for human rights.⁷⁶ The purpose of this section, however, will not be to show how international law might be pertinent to the aforementioned actions of the Generalitat, but simply to showcase the positions expressed by various international institutions or authorities on those actions or that might – even if only indirectly – be relevant to them. To this end, it will begin with those expressed by the European Union, followed by those expressed by the Council of Europe and, finally, other pronouncements that might be germane to the topic at hand.

Needless to say, there have also been statements and positionings with regard to the Spanish government’s actions in the context of the procés. However, they will not be addressed here (although they will be examined elsewhere) since, as stated in the introduction, the aim of the present contribution is to examine the actions of a substate entity, in this case, the Generalitat de Catalunya, and the challenges involved in appraising them from an international perspective.

4.2 The European Union

The European Union is not indifferent to the actions of the domestic bodies (central or regional) of its Member States. In the present field of study, this is due to the requirements of EU primary law, which establish the need for Member States to respect the principles and values set out in Article 2 of the Treaty on European Union (TEU), namely: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, as well as pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men. Thus, even in those areas not regulated by EU law, respect for these principles is required. The Treaty also provides for mechanisms to sanction states that fail to respect these principles and values.⁷⁷ Consequently, respect for these principles is a task shared by the Member States and the European institutions.⁷⁸ In recent years, the Commission has taken on an increasingly important role in upholding these principles, even in areas that do not fall directly within the competence of EU law, as shown by its periodic reports on the rule of law in its Member States.⁷⁹ One result of this is that European institutions have the legitimacy to examine any breaches arising in Member States in relation to the principles and values set out in Article 2 TEU. In this line, the “Conditionality Regulation” allows the EU to take appropriate measures with regard to those states in which breaches of the rule of law that threaten the EU’s financial interests are detected.⁸⁰

The actions of the Generalitat described in Sect. 3 could be considered contrary to the EU’s core values. As noted, the subordination of public authorities to the law and respect for judicial decisions is an essential element of the rule of law. However, the successive reports on the rule of law in Spain make no reference to the actions of the Generalitat de Catalunya. This silence could perhaps be understood as a vestige of what has been called the EU’s “federal blindness”,⁸¹ whereby the Union would be indifferent to each state’s internal territorial organization. It is obvious that this initial “blindness” has long since begun to be overcome with the gradual assumption of important and formal roles by substate entities in the EU.⁸² Nevertheless, as will be seen, the European institutions still maintain a different sensibility towards violations of the essential principles contained in Article 2 TEU when they are committed not by the central organs of a state, but by substate entities.

The European Parliament’s Committee on Petitions has received two complaints regarding the Generalitat’s activities, namely, petitions 0858/2017⁸³ and 0080/2022.⁸⁴ The first refers to the language of instruction⁸⁵ in Catalonia and requests that public and partially subsidized schools (centros concertados) offer education in both official languages (Spanish and Catalan) rather than maintain the exclusion of Spanish as a teaching language. The petition was declared admissible on 13 December 2017 and, at its meeting in April 2018, the Committee decided to request information from the Catalan education authorities on the exclusion of Spanish as a teaching language at publicly funded schools in Catalonia.⁸⁶ In 2020, the Committee on Petitions held another session on this topic. In light of the lack of a satisfactory response from the Generalitat, the Committee agreed to keep the petition open, request a report from the European Parliament’s Committee on Culture, send a letter to the Spanish government about the situation, and leave open the possibility of sending a committee to Catalonia to study the petition on the ground.⁸⁷ That fact-finding visit was approved by the coordinators of the different groups at the meeting of 8 September 2022⁸⁸ and ratified, following a challenge to the resolution, at the Committee on Petitions meeting of 24 October that same year.⁸⁹ The mission is planned for the second half of 2023. Additionally, the Committee on Petitions itself held a hearing on the language situation in Catalan schools on 28 February 2023.⁹⁰

The European Commission’s position on this issue differs considerably from that of the Committee on Petitions. In the Commission’s mandatory reply to the complaint filed in 2017, communicated to the European Parliament on 30 July 2018, it indicates that the choice of language in education is a matter of exclusive competence of the states, which precludes the Commission from intervening. However, despite this initial position, it has made some pronouncements on this issue, although not on the substance of the matter (the exclusion of Spanish as a teaching language in Catalonia) but rather the lack of compliance with judicial decisions requiring the Generalitat to offer a minimum amount of teaching in the other official language of the autonomous community. As seen, despite the final and binding nature of the High Court of Justice of Catalonia’s judgment of 16 December 2020 establishing the requirement for at least 25% of teaching to be done in each of the official languages of Catalonia, the Generalitat has refused to implement the court’s orders. The failure to comply with court decisions is a breach of the rule of law, which the Justice Commissioner twice highlighted between September⁹¹ and October⁹² 2022. The Commission’s view, therefore, is that it is not competent to weigh in on what language school should be taught in; in contrast, it does seem to consider requiring respect for judicial decisions to fall within its remit.

The second complaint concerning the actions of the Catalan institutions currently open before the European Parliament’s Committee on Petitions was filed by Ricardo García Manrique, a professor at the University of Barcelona, on behalf of the collective Universitaris per la Convivència [University Students for Co-existence],⁹³ and underscores the violation of fundamental rights at Catalan public universities. It reports on the violence exercised on university campuses against those who openly oppose nationalism,⁹⁴ as well as the taking of partisan positions by university governing bodies in favour of nationalism, their passivity in the face of the attacks suffered by students who oppose nationalism, and the passivity of the regional police in defending those students. The complaint was declared admissible on 21 June 2022 and remains open, even though, in its reply to it, received by the European Parliament on 25 November 2022, the Commission considered that it was not competent to act in this case, as it is the Member States that must ensure that fundamental rights are effectively respected and protected.

The Commission should perhaps have qualified its reply, given that the European institutions are supposed to guarantee, together with the states, respect for the principles of Article 2 TEU; however, as noted, the Committee on Petitions has decided to keep the petition open and write a letter to the Spanish authorities asking for information about the situation, as well as to Commissioner Reynders asking to have the issue included in the yearly report on the rule of law in relation to Spain.⁹⁵ Interestingly, a recent report by the European Parliament on academic freedom in Member States⁹⁶ highlights this criticism of the adoption of partisan political positions by universities.⁹⁷ The Commission’s caution, underscoring the responsibility of the states to guarantee fundamental rights in their territory, may be a vestige of the aforementioned “federal blindness”, which would postulate that EU action is always subsidiary to that of the state when it comes to enforcing the requirements of EU law in that state’s territory. Certainly, this approach is not without reason, but it should be accompanied by the reminder that, should the breaches persist, the European institutions will act to make up for the state’s inaction.

4.3 The Council of Europe

No Council of Europe institution has directly positioned itself on the actions of the Generalitat de Catalunya described in Sect. 3. However, some documents contain indirect appraisals thereof. As will be seen, these appraisals range from criticism to indifference or even legitimation of the Generalitat’s behaviour. This section will consider an opinion of the Venice Commission, a resolution of the Parliamentary Assembly of the Council of Europe, and the reports of the Committee of Experts of the European Charter for Regional or Minority Languages.

Let us begin with the Venice Commission opinion on the 2015 law amending Organic Law No. 2/1979 on the Constitutional Court [hereinafter, LOTC from the Spanish].⁹⁸ As explained in Sect. 3.1, the procés, understood as the set of actions carried out by the Generalitat de Catalunya with the aim of achieving the creation of an independent state in the territory of the autonomous community, had been underway since 2013. In the context of this procés, on 9 November 2014, a non-binding vote was held on the political future of Catalonia the purpose of which was equivalent to that of a referendum on self-determination. This non-binding vote was held despite having been prohibited by the Constitutional Court, which seemed to prove that the mechanisms for enforcing that court’s decisions were insufficiently effective. As a result, Spanish lawmakers decided to amend the LOTC⁹⁹ in order to strengthen the Constitutional Court’s ability to enforce its decisions.¹⁰⁰ Coinciding with the enactment of the law’s amendment, the chair of the Monitoring Committee of the Parliamentary Assembly of the Council of Europe requested an opinion from the Venice Commission¹⁰¹ on that amendment; the opinion of 13 March 2017 was the response to that request. It indicates that, although the LOTC’s amendment is formulated in a general manner, its development is linked to the events that were unfolding in Catalonia.¹⁰²

The Venice Commission begins its report by recalling that the judgments of the Constitutional Court are final and binding on all public powers and individuals. It further notes that to disregard a judgment of the Constitutional Court is to disregard the Constitution and the constituent power. Specifically, it continues, when a public official refuses to execute a Constitutional Court judgment, he or she violates the Constitution, including the principles of the rule of law, separation of powers, and loyal cooperation of state organs. It thus concludes that measures aimed at enforcing the judgments of the Constitutional Court are legitimate.¹⁰³

Therefore, albeit indirectly, the Venice Commission discredits the Generalitat’s systematic disobedience of court judgments. Although the aforementioned statements are made in general terms, as noted, the opinion itself connects the LOTC’s amendment with the situation at the time in Catalonia. Thus, the actions of the public authorities in disregard of the Constitution and the law described in Sect. 3.2 do not have the support of the Council of Europe body tasked with providing advice on legal matters.¹⁰⁴

Resolution 2381 (2021) of the Parliamentary Assembly of the Council of Europe, adopted on 21 June 2021,¹⁰⁵ on the other hand, takes a different approach. Despite acknowledging the unconstitutional nature of the 2017 referendum, it questions the measures adopted by the Spanish state to maintain the constitutional order in Catalonia at that time, in terms of both the charges of sedition brought against the leaders of the secessionist process and even those brought for abuse of public funds.¹⁰⁶

The Resolution is especially relevant with regard to the actions of the Spanish state in relation to the events of 2017, although a discussion of this dimension would fall beyond the scope of the present contribution.¹⁰⁷ Nevertheless, it implies a commentary on the actions of the Generalitat as well, at least in terms of downplaying the importance of the actions of public authorities in disregard of the law as long as those actions do not entail the use of violence.¹⁰⁸ This line of thought is significant for the present purposes and of some interest, as the actions of a public authority – in this case, the Generalitat – in disregard of the law do not usually require the use of violence, precisely because, as a public power, it already has coercive mechanisms (including the police) that render direct coercion unnecessary, unless the people subject to that public authority decide to ignore its instructions. It remains to be seen whether the position reflected in this Resolution (which, as seen, is contrary to that taken by the Venice Commission) is further developed in any way in other texts of the Council of Europe.

Finally, in relation to the Council of Europe, let us also briefly consider the reports of the Expert Committee of the European Charter for Regional or Minority Languages. The Charter was drafted within the framework of the Council of Europe with the aim of protecting and promoting languages used by minorities.¹⁰⁹ It provides for the creation of a Committee of Experts¹¹⁰ tasked with monitoring the Charter’s application in the countries that have ratified it.¹¹¹ To this end, periodic reports are prepared and made available for consultation on the Charter’s website.¹¹² Spain ratified the Charter in 2001,¹¹³ undertaking one of the highest possible levels of commitment in the defence and promotion of minority languages. That commitment included providing education in the minority language. In its periodic reports, the Committee of Experts verifies the degree of compliance with the Charter, in accordance with the obligations undertaken by each state, which, again, in Spain’s case, include the provision of education in the minority language.¹¹⁴

As seen in Sect. 3.4, in the case of Catalonia, teaching is in Catalan for all pupils, with no possibility to choose. The Charter does not protect this imposition of the minority language, as the Committee of Experts clarified in 2008.¹¹⁵ What it does protect is the right to receive an education in the minority language. As a result, because it does not protect the speakers of majority languages (in this case, Spanish), neither does it afford protection with regard to the exclusion of Spanish as a teaching language in Catalonia.¹¹⁶ Thus, a pronouncement by the Committee of Experts questioning the policy of compulsory Catalan immersion is not possible. It is one thing for the Charter to impose this immersion (which it does not do) and another for it to prohibit it (which it likewise does not do). Thus, the linguistic rights of the speakers of the majority languages of a state as a whole that are nevertheless minority languages (really or artificially) within a given regional territory would not be protected by the European Charter or, in principle, any other Council of Europe text.

4.4 The UN: Special Rapporteur on Minority Issues of the Human Rights Council

The previous section showed that whilst the European Charter for Regional or Minority Languages does not protect the exclusion of Spanish in Catalan schools, nor does it prevent it, such that even if the Generalitat’s actions in this regard are contrary to Spanish constitutional requirements, they do not face opposition from an international text. However, neither the Charter nor its Committee of Experts has gone any further; at most, they have indicated, as explained above, that the Charter does not legitimize compulsory education in the minority language.

The United Nations Special Rapporteur on minority issues,¹¹⁷ on the other hand, goes one step further. In his 2020 report on Spain,¹¹⁸ he recommends not only maintaining the system of linguistic immersion in Catalonia, but also reviewing all measures that might reduce the proportion of class hours taught in the minority language (Catalan).¹¹⁹ Thus, the goal of expanding the use of the minority language, i.e. Catalan, takes precedence over any other consideration, such as the right of pupils with a mother tongue other than Catalan but that is also an official language in Catalonia to study at least part of their subjects in their own language. As a result, in this case, the approach followed in the Special Rapporteur’s report supports the exclusion of Spanish as a school language.

The report of the Special Rapporteur on minority issues uses a definition of minorities that reflects neither state practice nor international custom, but rather is a personal construction of the Rapporteur himself based on existing elements in international practice.¹²⁰ Applied to Spain in accordance with the Special Rapporteur’s own criteria, this definition would mean that all people whose mother tongue is not Spanish would be minorities, a consideration that does not reflect the country’s current make-up, in which, according with the Spanish Government, the sum of the minorities identified by the Rapporteur would be greater than the supposed majority.¹²¹ This is because, in addition to the Roma and those groups identified on the basis of religion or emigration, the Special Rapporteur identifies “the Asturian, Balearic, Basque, Catalan, Galician, and Valencian communities” as minorities. The population of the autonomous communities corresponding to these designations totals more than 17 million people (out of a total of 46 million in all Spain), although it is unclear whether all the inhabitants thereof would be considered part of the minority from the Special Rapporteur’s perspective.

In addition to the above, the perspective adopted by the Special Rapporteur means that the rights of those people not classified as minorities must yield to policies intended to promote the expansion of these minorities. The case of schooling in Catalonia is a perfect example: according to the Special Rapporteur’s report, the right to receive schooling in one’s mother tongue, arising from the desirability that education be received in that language,¹²² would apply only to members of the minority, whilst children not belonging to the group identified as a minority could (or should) be deprived of it.

Although this is not the place for an in-depth discussion of this approach, such an interpretation of minority rights can clearly give rise to intractable conflicts.

Be that as it may, for the present purposes, the position of the Special Rapporteur on minority issues is clearly favourable to the measures that the Generalitat has been taking to limit the presence of Spanish in education referred to in Sect. 3.4 above.

5 Conclusion

The complex nature of Spain from a territorial perspective and the broad powers of the Generalitat de Catalunya are essential elements for understanding the secession process that reached its climax in 2017. The Generalitat’s actions, both before and since, aimed at achieving the creation of an independent state in the form of a republic on the territory of the autonomous community were largely contrary to the Constitution and other laws, included blatant disobedience of judicial decisions, and entailed a partisan appropriation of institutions, far removed from the neutrality required of them in liberal democracies. In this regard, the use of the public school system, which, in Catalonia, depends on the Generalitat, not the Spanish government, is particularly striking.

The nature of an internal conflict of the events in Catalonia has dampened the international response to those of the Generalitat’s actions that could be contrary to democratic principles or entail a breach of the rule of law; nevertheless, some international bodies have expressed positions on them.

In the case of the European Union, these positions have been critical. In the case of the Council of Europe, a distinction must be drawn between the Venice Commission, which is implicitly critical of the Generalitat’s disobedience of the judgments of the Constitutional Court; the Parliamentary Assembly, which is sympathetic to some of the Generalitat’s actions in disregard of the law; and, finally, the Committee of Experts of the European Charter for Regional or Minority Languages, which has neither endorsed nor criticized the imposition of Catalan as the teaching language for all students in Catalonia. Finally, the United Nations Special Rapporteur on minority issues has explicitly supported the Generalitat’s actions, even in those cases in which they entail a limitation of the rights of those people who are not considered members of protected minorities.