Catalonia, open letter to Juncker and Tusk: the silence of the EU is unjustifiable

This declaration was first published on OpenDemocracy as far as I know, I publish here because it raises interesting points.

Facing repressive escalation in Catalonia, 185 politicians, intellectuals, academics and MEPs have signed an open letter to European Commission President Juncker and European Council President Tusk to  urge the European Union to intervene for the salvation of fundamental freedoms.

Dear President Juncker, dear President Tusk:

We are scholars, politicians, public intellectuals and members of the European Parliament writing to you with the following concern:

The European Union has proclaimed the Rule of Law principle and respect for fundamental rights and freedoms to be binding on its Member States (Articles 2 and 6 of the Lisbon Treaty). The EU’s leadership has been a staunch protector of these fundamental norms, most recently in countering the Polish government’s attempts to undermine the independence of judges as well as the Hungarian government’s actions to limit civil society and media freedoms.

However, we are deeply concerned that the EU’s governing bodies are condoning the systematic violation of the Rule of Law in Spain, in particular regarding the Spanish central authorities’ approach to the 1 October referendum on Catalan independence. We do not take political sides on the substance of the dispute on territorial sovereignty and we are cognizant of procedural deficiencies in the organization of the referendum. Our concern is with the Rule of Law as practised by an EU Member State.

The Spanish government has justified its actions on grounds of upholding or restoring the constitutional order. The Union has declared that this is an internal matter for Spain. Issues of national sovereignty are indeed a matter of domestic politics in liberal democracies. However, the manner in which the Spanish authorities have been handling the claims to independence expressed by a significant part of the population of Catalonia constitutes a violation of the Rule of Law, namely:

1/ The Spanish Constitutional Tribunal banned the referendum on Catalan independence scheduled for 1 October, as well as the Catalan Parliament session scheduled for 9 October, on grounds that these planned actions violate Article 2 of the Spanish Constitution stipulating the indissoluble unity of the Spanish nation, thus rendering secession illegal. However, in enforcing in this way Article 2, the Tribunal has violated Constitutional provisions on freedom of peaceful assembly and of speech – the two principles which are embodied by referendums and parliamentary deliberations irrespective of their subject matter. Without interfering in Spanish constitutional disputes or in Spain’s penal code, we note that it is a travesty of justice to enforce one constitutional provision by violating fundamental rights. Thus, the Tribunal’s judgments and the Spanish government’s actions for which these judgments provided a legal basis violate both the spirit and letter of the Rule of Law.

2/ In the days preceding the referendum, the Spanish authorities undertook a series of repressive actions against civil servants, MPS, mayors, media, companies and citizens. The shutdown of Internet and other telecom networks during and after the referendum campaign had severe consequences on exercising freedom of expression.

3/ On referendum day, the Spanish police engaged in excessive force and violence against peaceful voters and demonstrators – according to Human Rights Watch. Such disproportionate use of force is an undisputable abuse of power in the process of law enforcement.

4/ The arrest and imprisonment on 16 October of the activists Jordi Cuixart and Jordi Sànchez (Presidents, respectively, of the Catalan National Assembly and Omnium Cultural) on charges of sedition is a miscarriage of justice. The facts resulting in this incrimination cannot possibly be qualified as sedition, but rather as the free exercise of the right to peaceful public manifestation, codified in article 21 of the Spanish Constitution. The Spanish government, in its efforts to safeguard the sovereignty of the state and indivisibility of the nation, has violated basic rights and freedoms guaranteed by the European Convention on Human Rights, the Universal Declaration of Human Rights, as well as by Articles 2 and 6 of the basic law of the EU (the Lisbon Treaty). The violation of basic rights and freedoms protected by international and EU law cannot be an internal affair of any government. The silence of the EU and its rejection of inventive mediation is unjustifiable.

The actions of the Spanish government cannot be justified as protecting the Rule of Law, even if based on specific legal provisions. In contrast to rule-by-law (rule by means of norms enacted through a correct legal procedure or issued by a public authority), Rule of Law implies also the safeguarding of fundamental rights and freedoms – norms which render the law binding not simply because it is procedurally correct but enshrines justice. It is the Rule of Law, thus understood, that provides legitimacy to public authority in liberal democracies.

We therefore call on the Commission to examine the situation in Spain under the Rule of Law framework, as it has done previously for other Member States.

The EU leadership has reiterated that violence cannot be an instrument in politics, yet it has implicitly condoned the actions of the Spanish police and has deemed the actions of the Spanish government to be in line with the Rule of Law. Such a reductionist, maimed version of the Rule of Law should not become Europe’s new political common sense. It is dangerous and risks causing long-term damage to the Union. We therefore call on the European Council and Commission to do all that is necessary to restore the Rule of Law principle to its status as a foundation of liberal democracy in Europe by countering any form of abuse of power committed by Member States. Without this, and without a serious effort of political mediation, the EU risks losing its citizens’ trust and commitment.

When this declaration appears, the crisis will have developed further. We follow closely the situation with the interests of democracy in Catalonia, Spain and Europe in mind, as they cannot be separated, and we insist all the more on the importance for the EU to monitor the respect of fundamental freedoms by all parties.

Signatories (in personal capacity):

Albena Azmanova, University of Kent

Barbara Spinelli, writer, Member of European Parliament

Etienne Balibar, université Paris Nanterre and Kingston University London

Cristina Lafont, Northwestern University, USA (Spanish citizen)

David Gow, editor, Social Europe

Kalypso Nicolaidis, Oxford University, Director of the Center for International Studies

Mark Davis, University of Leeds, Founding Director of the Bauman Institute

Ash Amin, Cambridge University

Yanis Varoufakis, DiEM25 co-founder

Rosemary Bechler, editor, open Democracy

Gustavo Zagrebelsky professor of constitutional law, University Turin

Antonio Negri, Philosopher, Euronomade platform Ulrike Guérot, Danube University Krems, Austria & Founder of the European Democracy Lab, Berlin

Costas Douzinas, Birkbeck, University of London

Judith Butler, University of California, Berkeley and European Graduate School, Switzerland

Philip Pettit, University Center for Human Values, Princeton University (Irish citizen)

Jón Baldvin Hannibalsson, former minister for foreign affairs and external trade of Iceland

Anastasia Nesvetailova, Director, City Political Economy Research Centre, City University of London

Craig Calhoun, President, Berggruen Institute; Centennial Professor at the London School of Economics and Political Science (LSE)

Jane Mansbridge, Kennedy School of Government, Harvard University

Arjun Appadurai, Institute for European Ethnology, Humboldt University, Berlin

Thor Gylfason, Professor of Economics at the University of Iceland and Research Fellow at CESifo, Munich/former member Iceland Constitutional Council 2011

Judith Revel, Université Paris Nanterre

Robert Menasse, writer, Austria

Nancy Fraser, The New School for Social Research, New York (International Research Chair in Social Justice, Collège d’études mondiales, Paris, 2011-2016)

Roberta De Monticelli, University San Raffaele, Milan

Sophie Wahnich, directrice de recherche CNRS, Paris

Christoph Menke, University of Potsdam, Germany

Robin Celikates, University of Amsterdam

Eric Fassin, Université Paris-8 Vincennes – Saint-Denis

Alexis Cukier, Université Paris Nanterre

Diogo Sardinha, university Paris/Lisbon

Dario Castiglione, University of Exeter Hamit Bozarslan, EHESS, Paris

Frieder Otto Wolf, Freie Universität Berlin

Gerard Delanty, University of Sussex

Boaventura de Sousa Santos, Coimbra University and University of Wisconsin-Madison

Sandro Mezzadra, Università di Bologna

Camille Louis, University of Paris 8 and Paris D

Philippe Aigrain, writer and publisher

Yann Moulier Boutang and Frederic Brun, Multitudes journal

Anne Querrien and Yves Citton, Multitudes journal

Susan Buck-Morss, CUNY Graduate Center and Cornell University

Seyla Benhabib, Yale University; Catedra Ferrater Mora Distinguished Professor in Girona (2005)

Bruce Robbins, Columbia University

Michèle Riot-Sarcey, université Paris-VIII-Saint-Denis

Zeynep Gambetti, Bogazici University, Istanbul (French citizen)

Andrea den Boer, University of Kent, Editor-in-Chief, Global Society: Journal of Interdisciplinary International Relations

Moni Ovadia, writer and theatre performer

Guillaume Sibertin-Blanc, Université Paris 8 Saint-Denis

Peter Osborne, Centre for Research in Modern European Philosophy, Kingston University, London

Ilaria Possenti, University of Verona

Nicola Lampitelli, University of Tours, France

Yutaka Arai, University of Kent

Enzo Rossi, University of Amsterdam, Co-editor, European Journal of Political Theory

Petko Azmanov, journalist, Bulgaria Etienne Tassin, Université Paris Diderot

Lynne Segal, Birkbeck College, University of London

Danny Dorling, University of Oxford

Maggie Mellon, social policy consultant, former executive member Women for Independence

Vanessa Glynn, Former UK diplomat at UKRep To EU

Alex Orr, exec mbr, Scottish National Party/European Movement in Scotland

Bob Tait, philosopher, ex-chair Langstane Housing Association, Aberdeen

Isobel Murray, Aberdeen University Grahame Smith, general secretary, Scottish Trades Union Congress Pritam Singh, Oxford Brookes University John Weeks, SOAS, University of London

Jordi Angusto, economist at Fundació Catalunya-Europa

Leslie Huckfield, ex-Labour MP, Glasgow Caledonian University

Ugo Marani, University of Naples Federico II and President of RESeT

Gustav Horn, Scientific Director of the Macroeconomic Policy Institute of the Hans Böckler Stiftung

Chris Silver, journalist/author

James Mitchell, Edinburgh University

Harry Marsh, retired charity CEO

Desmond Cohen, former Dean, School of Social Sciences at Sussex University

Yan Islam, Griffith Asia Institute David Whyte, University of Liverpool

Katy Wright, University of Leeds

Adam Formby, University of Leeds

Nick Piper, University of Leeds

Matilde Massó Lago, The University of A Coruña and University of Leeds

Jim Phillips, University of Glasgow

Rizwaan Sabir, Liverpool John Moores University

Pablo Ciocchini, University of Liverpool

Feyzi Ismail, SOAS, University of London

Kirsteen Paton, University of Liverpool

Stefanie Khoury, University of Liverpool

Xavier Rubio-Campillo, University of Edinburgh

Joe Sim, Liverpool John Moores University

Hannah Wilkinson, University of Keele

Gareth Dale, Brunel University

Robbie Turner, University of St Andrews

Will Jackson, Liverpool John Moores University

Louise Kowalska, ILTUS Ruskin University

Alexia Grosjean, Honorary member, School of History University of St Andrews

Paul McFadden, York University

Phil Scraton, Queen’s University Belfast

Oscar Berglund, University of Bristol

Michael Lavalette, Liverpool Hope University

Owen Worth, University of Limerick

Ronnie Lippens, Keele University

Andrew Watterson, Stirling University

Steve Tombs, The Open University

Emily Luise Hart, University of Liverpool

David Scott, The Open University

Bill Bowring, Birkbeck College, University of London

Sofa Gradin,King’s College London

Michael Harrison, University of South Wales

Ana Manzano-Santaella, University of Leeds

Noëlle McAfee, Emory University

Peter J. Verovšek, University of Sheffield 

Peter Dews, University of Essex

Martin Matuštík, Arizona State University

Camil Ungureanu, Pompeu Fabra University, Barcelona 

Dafydd Huw Rees , Cardiff University

Patrick Le Hyaric, Member of the European Parliament (GUE-NGL)

Hans-Peter Krüger, University of Potsdam 

Loren Goldman, University of Pennsylvania

Federica Gregoratto, University of St.Gallen

Rurion Soares Melo, Universidade de São Paulo

Pieter Duvenage, Cardiff University and editor, Journal for Contemporary History

Chad Kautzer, Lehigh University

Peter A. Kraus, University of Augsburg

David Ingram, Loyola University  of Chicago

Alain-G. Gagnon, Université du Québec à Montréal

Peter Bußjäger, Institut für Föderalismus, Innsbruck

Nelly Maes, Former Member of the European Parliament, former President of European Free Alliance

Helmut Scholz, Member of the European Parliament (GUE/NGL)

Michel Seymour, Université de Montréal

Simon Toubeau, University of Nottingham

Georg Kremnitz, Universität Wien

Keith Gerard Breen, Queen’s University Belfast

Alan Price, Swansea University

Fernando Ramallo, Universidade de Vigo

Nicolas Levrat, University of Geneva, Director of the International Law Department

Jordi Matas, Professor of Political Science, University of Barcelona

Simon Toubeau, University of Nottingham

María do Carme García Negro, University of Santiago de Compostela

Francisco Rodríguez, writer

Carme Fernández Pérez-Sanjulián, University of Coruña

Patrice Poujade, Université de Perpignan

Colin H Williams, Cardiff and Cambridge  University

Nicolas Berjoan, Université de Perpignan

Joan Peitavi, Université de Perpignan

Alà Baylac-Ferrer, Université de Perpignan

Guglielmo Cevolin, University of Udine, Italy

Robert Louvin, Professor of Comparative Law, University of Calabria

Günther Dauwen, Secretary General of the Centre Maurits Coppieters

Bart Maddens, Catholic University of Leuven

Alan Sandry, Swansea University

Justo Serrano Zamora, Bavarian School of Public Policy

Ivo Vajgl, Member of the European Parliament (Alde)

Alberto Aziz Nassif, Centro de Investigaciones y Estudios Superiores en Antropología Social, México

Sandrina Antunes, University of Minho, Portugal

Pablo Beramendi, Duke University

Nico Krisch, Graduate Institute of International and Development Studies, Geneva

Miguel Urbán Crespo, Member of the European Parliament (GUE/NGL)

Thierry Dominic,  Université de Bordeaux

Yasha Maccanico, University of Bristol and Statewatch