Abstract
This chapter addresses several issues regarding secession referendums such as what could be a clear question and a clear majority and who should be entitled to vote. As regards the clarity of the question, in particular, the objectives in the wording ought to be intelligibility, conciseness, simplicity, vernacularity, straightforwardness, neutrality and legal correctness. Moreover, the question should appeal to (minimally) realistic subjective preferences based on public reasons.
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Notes
- 1.
See Castellà Andreu, J.M. “Democracia, reforma constitucional y referéndum…”, p. 179. Bossacoma, P. Secesión e integración…, § 4. Dunsmuir, M. “Referendums”, pp. 29–32. Spain, in particular, has examples of all three of these types of referendum decision.
- 2.
Tierney, S. Constitutional Referendums, p. 299. Luciani, M. “Il referendum”, p. 158 et seq. Bossacoma, P. “Competències…”, pp. 244–5.
- 3.
See § 5.3.
- 4.
Viver, C.; et al. “The Consultation…”, § 7.1.1.
- 5.
Monahan, P.J.; Bryant, M.J. Coming to Terms…, pp. 14–19. The House of Lords Select Committee on the Constitution, in its 2010 report on Referendums inthe United Kingdom, considered that referendums cannot be legally binding in the UK because of the sovereignty of Parliament (par. 197). The High Court of England and Wales Judgement Miller v. Secretary of State forExiting the EU reads as follows (par. 106): “the basic constitutional principles of parliamentary sovereignty and representative parliamentary democracy which apply in the United Kingdom, which lead to the conclusion that a referendum on any topic can only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question”.
- 6.
Since deliberative democracy “is meant to combine political accountability with a high degree of reflectiveness and a general commitment to reason-giving”, Sunstein believes that constitutional structures should seek to create a genuine republic, neither a direct democracy nor a government run on the basis of popular referendums. Sunstein, C.R. Designing Democracy, pp. 6–7.
- 7.
See Bossacoma, P. Sovereignty in Europe, § 7.
- 8.
See Moore, M. The Ethics of Nationalism, pp. 95–6.
- 9.
“The plebiscite puts an end to the citizen’s right to vote, to choose and to control their government”. Arendt, H. On Revolution, p. 220.
- 10.
Viver, C.; et al. “The Consultation…”, § 7.1.1.
- 11.
Bossacoma, P. “Competències…”, pp. 244–5.
- 12.
See Tierney, S. Constitutional Referendums, pp. 19–42. Dunsmuir, M. “Referendums”, pp. 1–12. Select Committee on the constitution, Referendums in the United Kingdom, pp. 16–20.
- 13.
Tierney, S. Constitutional Referendums.
- 14.
“The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad — in other words, sovereignty — and at the same time to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will only be implemented with popular approval through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?”.
- 15.
“Do you agree that Quebec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Quebec and of the agreement signed on June 12, 1995?”.
- 16.
Dumberry, P. “Lessons Learned from Quebec Secession Reference Before the Supreme Court of Canada”, in Kohen, M.G. (ed.) Secession. International Law Perspectives, p. 420. Norman, W. Negotiating Nationalism, pp. 192–3. Monahan, P.J.; Bryant, M.J. Coming to Terms…, pp. 8, 22–3. See Section 26 of the bill referred to in the 1995 question (Bill 1, An Act Respecting the Future of Quebec, 1995). On declarations of sovereignty, see § 10.2.
- 17.
Reference re Secession of Quebec, par. 100: “A right and a corresponding duty to negotiate secession cannot be built on an alleged expression of democratic will if the expression of democratic will is itself fraught with ambiguities. Only the political actors would have the information and expertise to make the appropriate judgement as to the point at which, and the circumstances in which, those ambiguities are resolved one way or the other”.
- 18.
Section 1(3-4) of the Clarity Act.
- 19.
Taillon, P. Le référendum…, pp. 200–1.
- 20.
See Tierney, S. Constitutional Referendums, p. 143.
- 21.
See Keating, M. The Independence of Scotland, pp. 72–3.
- 22.
Agreement Between the United Kingdom Government and the Scottish Government on a Referendum on Independence for Scotland, Edinburgh, 15 October 2012.
- 23.
See Referendum on Independence for Scotland: Advice of the Electoral Commission on the proposed Referendum Question.
- 24.
See Your Scotland, Your Referendum, 2012.
- 25.
See Keating, M. “Rethinking Sovereignty”, pp. 9–28.
- 26.
See Scotland’s Future: Draft Referendum (Scotland) Bill Consultation Paper, 2010, ch. 1.
- 27.
The wording of the consultation was agreed at the end of 2013 by the leaders of four sovereigntist political parties represented in the Parliament of Catalonia at the time. For more on this consultation, see Bossacoma, P.; López, H. “The Secession of Catalonia”.
- 28.
It is likely and reasonable that a convinced pro-independence voter would not wish to be counted in the group of supporters of a State without any adjectives.
- 29.
Let us analyse the following hypothetical case: What should the Government and Parliament of Catalonia do if 75% of Catalans voted yes to the first question and 55% to the second? In this hypothetical, but possible scenario (in a legal consultation in which parties and voters opposed to independence would have taken part), would the Catalan political representatives have to opt for an independent State if this option clearly secured less support than a State? A quick answer could be: yes, they should opt for an independent State since the other paths are closed. The reply would be: and if the representatives know that the other ways are closed, why do they ask? Why do they make citizens waste their time or why do they deceive citizens with questions that are out of their control or that they know are unfeasible? If, despite all that, the Catalan representatives still ask the question, they must bear the consequences and keep on trying to convince Madrid for many more years (or legislative terms). Despite compromise being difficult to achieve, the penchant for consensus is a Catalan, Spanish and European growing conviction. In recent years, western democracies have been tending to identify themselves more and more with consensual democracies at the expense of simple majoritarian democracy. On fundamental (constitutional and constituent) decisions in particular, a broad consensus is usually needed. For instance, a majority of two-thirds of the Parliament of Catalonia to approve a proposal to amend the Statute of Autonomy.
- 30.
Among others, Cassese, A. Self-Determination of Peoples, p. 263.
- 31.
Puerto Rico case proves that multi-option referendums raise problems. Newfoundland and Labrador referendums of 1948 and 1949 point out that a second round may work. See Castellà Andreu, J.M. “Democracia, reforma constitucional y referéndum…”, p. 182. Serrano, I.; López, J.; Vergés, J. Who Is Entitled to Vote? pp. 11–14.
- 32.
Viver, C.; et al. “The Consultation…”, § 6.1.2.
- 33.
See Bossacoma, P. Sovereignty in Europe, §§ 1–3.
- 34.
Keating, M. “Rethinking Sovereignty”, pp. 9–28.
- 35.
Connolly, C. “Independence in Europe …”, p. 102.
- 36.
Rousseau, The Social Contract, book III, ch. XIII. Beyond the common ground mentioned, it must be added that the sovereign and sovereignty of these authors differ. For example, Blackstone assigned full sovereignty to the monarch, whereas Dicey to the Crown in Parliament. See Dicey, A.V. Introduction to… the Law of the Constitution, pp. 1–35. According to Hobbes, sovereignty could lie in the hands of an individual or an assembly. See Hobbes, Leviathan, ch. XXVI.
- 37.
See Bossacoma, P. Sovereignty in Europe, § 1. On the historical evolution of the idea of sovereignty, see Hinsley, F.H. Sovereignty. Fossas, E. (dir.) Les transformacions de la sobirania….
- 38.
Keating, M. “Rethinking Sovereignty”, pp. 11–14.
- 39.
ScotlandAnalysis: Devolution and the Implications of Scottish Independence, 2013, par. 2.31 et seq. Beyond sovereignty under constitutional law, sovereignty under international law is important, the latter being closely attached to independent statehood, international subjectivity and status to represent the Scottish territory and population.
- 40.
See ch. 13.
- 41.
This statute was framed within the so-called Ibarretxe Plans, which will be discussed in ch. 12.
- 42.
- 43.
Judgement 103/2008 argues as follows: “The question proposed to be put to a consultation of the citizens of the autonomous community of the Basque Country affects (…) the basis of the current constitutional order (insofar as it involves reconsideration of the identity and unity of the sovereign subject or, at the very least, of the relation which only its will can establish between the State and the autonomous communities) and therefore can be put to popular consultation only via a referendum on constitutional reform. It is a matter reserved for the institutional procedure under Article 168 of the Spanish Constitution. The issue which concerns us here cannot be raised as a question based merely on the non-binding opinion of the electorate of the Basque Country, since it affects fundamental matters resolved by the constituent process and are therefore removed from the decision of the constituted powers. Respect for the Constitution requires that proposals for revision of the constituted order, especially those affecting the foundation of the identity of the sole holder of sovereignty, be materialized openly and directly in the way that the Constitution has provided for such purposes”.
- 44.
See ch. 12.
- 45.
See Opinion on the Compatibility of the Existing Legislation in Montenegro Concerning the Organization of Referendums with Applicable International Standards, 2005, par. 15.
- 46.
See Republic of Montenegro: Referendum on State-Status, 21 May 2006. Final Report, § IV-B.
- 47.
This question is similar to the one in the unconstitutional referendum of 1 October 2017, which was: “Do you want Catalonia to be an independent State in the form of a republic?” (Art. 4.2 of the 2017 Self-Determination Referendum Act). Asking about the form of this State introduced another topic that should not have been asked in the same question (perhaps not even in the same referendum). It was, however, a political strategy to encourage non-monarchist electors (basically leftists) to vote for independence.
- 48.
See Viver, C.; et al. “The Consultation…”, §§ 6.1.2, 7.4.
- 49.
Although some could argue that we should not worry about voters answering non-realistically, the question should put the citizens in a position to make a choice as if the political course of the country were in their hands. The wording ought to make them answer as if they were the democratic representatives who have to choose which path is the most correct and appropriate for Catalonia in the short to medium term as things stand. They are not to be asked about their ideal or utopian solution, but about how they would respond here and now if the country’s decision were left to them.
- 50.
See Tierney, S. Constitutional Referendums, ch. 3.
- 51.
See Section 6 of the Southern Sudan Referendum Act 2009. In the ballot paper, the word “Unity” was represented by a picture showing two joined hands and the word “Secession” by a picture showing the palm of a single hand. The illiteracy of many voters may explain why the options were accompanied by pictures.
- 52.
Section 1(5) of the European Union Referendum Act 2015.
- 53.
Words such as “independence” could be preferable to more technical terms like “secession”. Drawing inspiration from the method of the UK Electoral Commission, empirical studies putting the question to citizens around the country from diverse economic, social and cultural backgrounds can find out what the words mean to the people.
- 54.
Reference re Secession of Quebec, par. 87.
- 55.
The provincial government of Quebec has already held two referendums on sovereignty. In 1980, the vote was 40.44% in favour and 59.56% against (turn-out of 85.61%). In 1995, the result was tighter: 49.42% in favour and 50.58% against (turn-out of 93.52%). Lévesque, M.; Pelletier M. Les Référendums au Québec. Guénette, D.; Gagnon, A. “Del referéndum a la secesión”, pp. 14–15.
- 56.
Dion, S. Lecture at the Il·lustre Col·legi d’Advocats of Barcelona, 11 April 2013.
- 57.
See Taillon, P. Le référendum…, pp. 232–1.
- 58.
In similar vein, see Monahan, P.J.; Bryant, M.J. Coming to Terms…, pp. 19–28.
- 59.
See Keith Owen Henderson and Equality Party v. Attorney General of Quebec, 16 August 2002, and Henderson v. Procureure générale du Québec, 18 April 2018.
- 60.
Taylor, C. The Globe and Mail, 6 February 2013. In similar vein, Guénette, D.; Gagnon, A. “Del referéndum a la secesión”, pp. 23–4.
- 61.
Monahan, P.J.; Bryant, M.J. Coming to Terms…, p. 19 (see also pp. 29–30).
- 62.
Norman, W. Negotiating Nationalism, p. 202. Norman, W. “From quid pro quo to modus vivendi…”, p. 202.
- 63.
Reference re Secession of Quebec, par. 76.
- 64.
See Bossacoma, P. “Constitutionalism and Democracy”.
- 65.
Margalit, A.; Raz, J. “National Self-Determination”, p. 458.
- 66.
See Key principles of a democratic referendum process in the Republic of Montenegro.
- 67.
Article 6 of this Law established: “The decision in favour of independence shall be considered as valid if 55% of the valid votes are cast for the option ‘yes’, provided that the majority of the total number of registered voters has voted on the referendum”.
- 68.
See Opinion on the Compatibility of the Existing Legislation in Montenegro Concerning the Organization of Referendums with Applicable International Standards, 2005, pars. 20–6.
- 69.
Resolution of the Parliamentary Assembly of the Council of Europe 1514 of 2006, par. 12.
- 70.
Referendums in Europe—An Analysis of the Legal Rules in European States, 2005, par. 109.
- 71.
Ibid., par. 111.
- 72.
See Section 41(2-3) of the Southern Sudan Referendum Act 2009. Subsection (2).b runs as follows: “If the threshold was not reached, the referendum shall be repeated under the same conditions within sixty days from the declaration of the final results”. As the Final Report of the Carter Center explains, “According to the Referendum Act, the referendum would be considered legal and valid if at least 60 percent of registered voters cast their votes in the referendum. If turnout did not reach the required threshold, the referendum was to be repeated within 60 days of the final vote declaration. A simple majority of 50 percent plus one of the total votes was necessary for either unity or secession to be certified as the expression of the will of the Southern Sudanese”. Observing the 2011 Referendum on the Self-Determination of Southern Sudan. Final Report, p. 11.
- 73.
See Tierney, S. Constitutional Referendums, pp. 249–9, 279.
- 74.
Venice Commission, Opinion on the Compatibility of the Existing Legislation in Montenegro Concerning the Organization of Referendums with Applicable International Standards, 2005, pars. 29–31.
- 75.
Venice Commission, Referendums in Europe—An Analysis of the Legal Rules in European States, 2005, pars. 109–15.
- 76.
Along similar lines, see Monahan, P.J.; Bryant, M.J. Coming to Terms…, p. 30.
- 77.
In this vein, López Bofill, H. La independència i la realitat, pp. 58–9. Professor M. Saward, in Select Committee on the Constitution, Referendums in the United Kingdom, par. 184, Q38. Taillon, P. Le référendum…, p. 246.
- 78.
In similar vein, Code of Good Practice on Referendums (§ III.7).
- 79.
Note that combination of a turn-out quorum with an approval quorum in relation to the electorate is potentially controversial, since the lower the turn-out, the higher the majority will have to be. Tierney, S. Constitutional Referendums, pp. 276–7.
- 80.
See Law on Procedure for Resolving Questions Connected with a Union Republic’s Secession from the USSR (3 April 1990).
- 81.
See § 8.1. Cassese, A. Self-Determination of Peoples, pp. 265–6.
- 82.
According to the joint statement issued by the Scottish and UK Governments: “If more people vote ‘Yes’ than vote ‘No’ in the referendum, Scotland would become an independent country” (p. 10). “If more people vote ‘No’ than ‘Yes’ in the referendum, Scotland would remain a part of the United Kingdom” (p. 11). Electoral Commission, The 2014 Scottish Independence Referendum: Voting Guide. See also BBC. “Scottish Independence: Post-referendum Agreement Reached”, 18 June 2014. Tierney, S. “The Scottish Independence Referendum”, in McHarg, A.; et al. (ed.) The Scottish Independence Referendum, p. 55.
- 83.
Referendums in the United Kingdom, par. 189.
- 84.
A simple majority of voters seems to be the usual rule in most of the British referendums held over the last decades (on remaining in the European Community in 1975, on Scottish and Welsh devolution in 1997, on the Greater London Authority in 1998, on the Belfast Agreement in 1998, on the regional assembly of North-East England in 2004, on European Union membership in 2016). The exception was the 1979 devolution referendum, which required an affirmative vote of at least 40% of the general electorate. Although most Scots voted for devolution, this majority fell short of 40% of the total electorate and the devolution of powers did not materialize. The bitter memory of this referendum led to this requirement being dropped. Keating, M. The Independence of Scotland, pp. 83–4. See Scottish Government, Policy Memorandum of Scottish Independence Referendum Bill, pars. 37–8. Your Scotland, Your Referendum, 2012, par. 1.21. Scotland’s Future: Draft Referendum (Scotland) Bill Consultation Paper, 2010, pars. 1.30–2.
- 85.
In a similar vein, see Monahan, P.J.; Bryant, M.J. Coming to Terms…, pp. 26–7.
- 86.
Several authors propose similar paths towards secession. See Pogge, T.W. “Cosmopolitanism and Sovereignty”, p. 71. Wellman, C.H. A Theory of Secession, pp. 63, 158. Vaubel, R. “Secession in the European Union”. Monahan, P.J.; Bryant, M.J. Coming to Terms…, pp. 30–5. However, the second referendum would be problematic if it turned into a consultation on the secession agreement and not on the will for secession. For the various theoretical and practical reasons set out in chs. 10 and this chapter, people should speak out about their will for secession only and the secession agreement would have to be left in the hands of the democratic representatives.
- 87.
See § 10.1.
- 88.
See ch. 14. Ackerman, B. We the People (2), pp. 409–14. Ackerman, B. “The New Separation of Powers”, pp. 664–7.
- 89.
For instance, the Scottish First Minister is pressing for another referendum on independence by 2021 if the UK withdraws from the EU. Although some may criticize that a second referendum should wait, others could argue the significant change of circumstances that Brexit entails.
- 90.
See Bossacoma, P. “Who Would the Citizens… Be?”.
- 91.
For example, some may say that the Soviet colonizers of Lithuania and Latvia, and their descendants, should not have a voice in the decision on secession. Buchanan, A. Secession, p. 159. In fact, “the biggest surprise, given the large proportion of non-Balts in Estonia and Latvia (38 percent and 48 percent of the population, respectively), was that about half of the non-Baltic population voted in favour of independence”. Commission on Security and Cooperation in Europe, Report on the Estonian Referendum and the Latvian Public Opinion Poll on Independence.
- 92.
See Tamir, Y. Liberal Nationalism, p. 159. Saura, J. Nacionalidad y nuevas fronteras en Europa, pp. 97–102. However, excessive obstacles preventing the Russian minority from obtaining Estonian or Latvian citizenship have been criticized by European institutions.
- 93.
Under the Noumea Agreement of 1998, Article 77 of the French Constitution and Title 9 of the organic statute 209 of 19 March 1999 on New Caledonia, the 2018 referendum to attain full sovereignty and independence was held in New Caledonia, with a limited franchise and special enrolling rules in favour of the native people of the archipelago (the Kanaks). See Tierney, S. Constitutional Referendums, pp. 75–97. UN General Assembly Resolution 2189 (XXI) of 1966 condemns colonial policies that promote systematic influx of foreign immigrants to the colonies while displacing, deporting and transferring the indigenous inhabitants to other areas.
- 94.
Remiro, A.; et al. Derecho Internacional, pp. 173–4.
- 95.
See Articles 1.1, 9.2 and 23.1 of the Spanish Constitution and Articles 4, 29 and 43 of the Statute of Autonomy of Catalonia.
- 96.
Bossacoma, P. “Competències…”, p. 245. Luciani, M. “Il referendum…”.
- 97.
See Judgements 76/1994, 119/1995, 103/2008 and 31/2015.
- 98.
See Article 149.1.32 of the Constitution. The Constitutional Court considers State authorization of regional referendums as necessary in all cases, prior to the calling of a referendum and granted following criteria based on political expediency.
- 99.
While the Constitution expressly reserves for the State the regulation of certain referendums (Article 92.3), the Constitutional Court has extended this reservation to all sorts of referendum. See Judgements 103/2008, 31/2010, 31/2015 and 114/2017.
- 100.
See ch. 12. In fact, this jurisprudence is not unusual in comparative constitutional law.
- 101.
Although a broad interpretation of these competences could include the legal faculty of the Catalan Parliament to initiate constitutional changes under Articles 87 and 166 of the Constitution, the Constitutional Court upholds a narrower interpretation. See Judgements 31/2010 and 31/2015.
- 102.
The Constitutional Court Organic Act was reformed in 2015 to increase the powers of this Court to confront the Catalan secessionist challenge. This was admitted by Justice Xiol in his dissenting opinion on the Constitutional Court Judgement regarding the reform. The majority opinion upheld the constitutionality of the reform with several restrictions on the use of its new enforcing powers (see Judgements 185/2016 and 215/2016). While the Court showed that is eager to use its powers of word, it seems unwilling to use its powers of sword. Bossacoma, P. “La espada del Tribunal Constitucional”. See also Venice Commission, Opinion on the Law of 16 October 2015 Amending the Organic Law No. 2/1979 on the Constitutional Court, 2017.
- 103.
In October 2017, under Article 155 of the Constitution, the Spanish Government adopted the following measures to block the process of independence of Catalonia: dismissing the President of Catalonia and the rest of the members of the Catalan Executive; giving instructions to all Catalan public administrations and their officials; and dissolving the Parliament of Catalonia in order to hold new elections in December 2017.
- 104.
See Article 116 of the Constitution and Organic Act 4/1981. While declaration of a state of siege requires a sort of insurrection or other significant acts of force, declaration of a state of exception takes greater account of the outcomes than of the means used.
- 105.
The former President of Catalonia and three other members of his Government were condemned for criminal contempt regarding the consultation held on 9 November 2014. In relation to the unilateral referendum and declaration of independence of October 2017, several members of the Catalan Government and two pro-secession leaders of civil associations were sent to prison awaiting trial. The then President of Catalonia together with other members of his Government crossed the Spanish borders to avoid being imprisoned. The criminal charges include, among others, the serious crimes of rebellion and of sedition.
- 106.
Norman, W. Negotiating Nationalism, p. 195.
- 107.
In the 2010 Scott Kohlhaas v. State of Alaska case, the same Court considered that nor is it possible to proceed with an initiative to vote about seeking statutory and constitutional reforms to authorize the independence of Alaska. According to the Court, “the Alaska Constitution … is inextricably tied to the United States”. Thus, it would be necessary to amend the Constitution first. However, since the sole reform processes allowed are by a constitutional convention and through the House of Representatives, popular initiatives are not an admissible procedure to promote a reform of this Constitution. In the words of the Court, “if the people of Alaska wish to effect lawful constitutional change, they must do so in the modes outlined by the Alaska Constitution itself. As we have long held, the initiative process is an inappropriate forum through which to pursue constitutional change. Even if Kohlhaas’s revised initiative does not seek secession, it proposes constitutional change to permit secession and is therefore an improper subject for the initiative process”. See § 8.1.
- 108.
It is a very brief decision of only three judges rejecting to grant admission to a constitutional complaint, but expressed in a remarkably categorical way. According to this ruling, the Länder are not “Masters of the Constitution” (Herren des Grundgesetzes). In similar vein, see the Bavarian Constitutional Court ruling, of 16 July 1991, Verbindlichkeit des Grundgesetzes für Bayern. Lindner, J.F. “‘Austritt’ des Freistaates Bayern…”, pp. 97–102. Doerfert, C. “Sezession im Bundesstaat”, pp. 711–13. Despite a strong State identity in Bavaria, the majority of Bavarian nationalists are not demanding independence. Nagel, K.J.; Holesch, A. “Bavaria”, pp. 9–19. This may explain the shortage of jurisprudence.
- 109.
Tierney, S. Constitutional Referendums, p. 140.
- 110.
See 1146/1988, 256/1989, 470/1992 and 496/2000. These Judgements declare regional consultative referendums to start processes to amend constitutional or ordinary State laws illegitimate under the Constitution. Judgement 496/2000 reads: “Two main statements can be pointed out: the first one is that the people voting in a referendum is not considered by the Constitution as the driving force of constitutional change. The second is intervention by this people does not follow a free scheme, since the expression of its will must stick to typical forms and procedures (…)”. Over the years, the Constitutional Court has tempered its jurisprudence but not in the case of regional referendums on independence (Judgement 118/2015). This Judgement seems to rule an implicit eternity clause to protect the unity of Italy. See Ferraiuolo, G. Costituzione, Federalismo, Secessione, pp. 25–8. Luciani, M. “I referendum regionali (…)”. Modugno, F. “Unità-indivisibilità…”.
- 111.
Bossacoma, P.; López, H. “The Secession of Catalonia”.
- 112.
Viver, C.; et al. “The Consultation…”, § 4.2.5. However, constitutionalization of a secession referendum following the ordinary amending process of Article 167 of the Spanish Constitution might not be sufficient, since it may not overcome the case law requiring a rigid reform under Article 168. See ch. 12.
- 113.
See the Self-determination Referendum Act 19/2017, passed by the Parliament of Catalonia.
- 114.
The Venice Commission has applied its own general recommendation to specific cases such as the Crimean Referendum on separation from Ukraine: “Holding a referendum which is unconstitutional in any case contradicts European standards”. Opinion 762/2014, par. 24.
- 115.
See Bossacoma, P. “El referéndum de autodeterminación de Cataluña”.
- 116.
Some international players could put pressure on central institutions to hold a referendum on secession and, at the same time, on regional authorities not to move forward unilaterally until the results of it were known.
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Bossacoma Busquets, P. (2020). Referendum Democracy and Secession. In: Morality and Legality of Secession. Federalism and Internal Conflicts. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-26589-2_11
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