The President of the Generalitat, Pere Aragonès, this morning received the report drafted by the Academic Council for the Clarity Agreement, made up of nine experts in criminal and constitutional law from Catalan universities, chaired by Marc Sanjaume-Calvet. The document, commissioned by the Catalan Government, will be analysed today at the extraordinary meeting of the Executive Council.

The aim of the report is to explore ways of resolving the conflict. “It seeks to open up the horizon of possibilities, not to mark out a single path or dictate a specific direction to the Catalan Government or political actors”, Sanjaume stressed.

He added that the experts who produced it have “different academic experiences and very diverse views on the political conflict”, therefore, “the report is a reflection on these experiences, not an individual opinion, but a collective work”.

Content of the report

The report follows the structure requested by the Generalitat, discussing five questions on the characteristics of a potential agreement, comparative politics of such conflicts, the actors and institutions that should be involved, the resolution mechanisms and the specific features of a potential referendum, in this order.

Characteristics

The clarity agreement should establish the mechanisms needed to move forward in an on agreed term to resolve the conflict over Catalonia’s political status, on the assumption that there are profound disagreements over the nature of the conflict within Catalonia and in Spain as a whole. At the same time, the agreement must consider providing the citizens of Catalonia and the rest of Spain, and/or their representatives, with the opportunity to express legitimate interests that must be taken into account in the decision on Catalonia’s political future.

The agreement should include two distinct elements: a) the definition of a legitimate mechanism for the expression of preferences regarding territorial organisation, and b) the political and institutional consequences of the expressed preferences. To seek a resolution to the conflict, the mechanisms should accommodate the demand for secession and remaining within the existing state. These two forms of accommodation are closely related.

Comparative politics

The report examines the rest of the world, and notes that land conflicts are slow and complicated to resolve with no one-size-fits-all solutions, but rather, each case has its own variables that condition potential resolutions. It notes that conflict management is often most effective when it is the result of a process that respects the right of the parties involved to defend their political claims.

The use of referendums is very common in territorial conflict resolution processes. The referendum is normally held in the secessionist territory rather than in the state as a whole to avoid a situation where a state-wide majority prevails over a territorial minority, although the parent state is often involved in the process through other mechanisms, often through the intervention of the central government or parliament.

Actors and institutions

The primary actors called upon to play a central role in conflict resolution are governments, parliaments and citizens. However, relevant secondary actors, such as local authorities, supra-state authorities, the other autonomous communities and the courts, especially the Constitutional Court, must also be taken into account.

In this sense, despite the fact that the Constitutional Court has played a major role in this conflict and that its case law hinders holding sovereignty and secession referendums, the Court could revise this case law or remain silent on this type of referendum if it were the result of an agreement between the state and a substate territory. In addition, the involvement of mediating individuals or institutions, a growing trend in conflict resolution, is not ruled out.

Moreover, in the context of initial negotiations on a clarity agreement, it must be borne in mind that there is a tension between including more actors to increase the legitimacy of the agreement and the likelihood of them actually reaching agreements, which are necessary not only in terms of legitimacy, but also in terms of viability. In general, while greater legitimacy should lead to greater viability, the most legitimate option is not always or does not always become the most viable one.

The role of the referendum

Referendums are politically powerful and widely used mechanisms for resolving territorial conflicts, helping identify citizens’ preferences and, at the same time, legitimising decisions through the expression of a direct vote. But referendums have limitations in conflict resolution and must be understood within the framework of a more general agreement. To fulfil these functions of identifying preferences and legitimisation, the referendum needs to be accepted and recognised from different positions.

By way of example, the report identifies a number referendum possibilities proposed by different actors and divides them into two categories: the possibility of holding initial or final referendums. These referendums could be held in the substate territory or in the state as a whole. Four options stem from these criteria: an initial referendum in the substate territory, as in the Scottish case; a ratification referendum in the substate territory; an initial referendum in the state as a whole; and a ratification referendum in the state as a whole.

Finally, a fifth option could combine the previous ones: a double referendum held in the state as a whole and in Catalonia. All options, if properly agreed and regulated, may be valid to advance conflict resolution. However, the report stresses that referendums, especially state-wide ones, are also mechanisms that can block resolution by promoting a tyranny of the majority over the territorial minority.

If a clarity agreement does not provide for a referendum, an alternative mechanism, such as a proxy agreement and or elections as a de facto referendum, will be necessary.

Features of the referendum

The question submitted to referendum should be as clear as possible, the result of a political agreement that allows citizens to know what the options involved. Furthermore, to avoid creating confusion, they should be binary, i.e. contain only two alternative options. Everything involved in interpreting the result should also be part of a prior agreement, in other words, the majorities or quorums required.

Finally, the report notes that prior agreement on the effects of a potential referendum would be desirable. If the agreed and legal result of the referendum were to be in favour of a change of territorial status, whether or not this entailed independence, all parties should approach its subsequent management from those principles. Failure to do so, despite having clarified the existence of a majority political demand, would imply not respecting these principles and might encourage attempts to satisfy the demand by other means. If the outcome were contrary to this change, it should entail acceptance by the actors involved that this aspiration is not a majority one and that, consequently, all other political activity should not be subordinated to achieving this aspiration.