Abstract
Catalonia-Spain political conflict and the potential application of Article 7 TEU
My presentation will explore the appropriateness of applying Article 7 TEU in response to potential disproportionate measures taken by a Member State as a reaction to the threat of celebration of a referendum for self-determination. A democratic consultation held by a sub-state government without the consent of the State and against the decisions of the Constitutional Court.
The Catalonia-Spain political issue highlights many legal and political dilemmas, such as the boundaries of federalism; the undesirable clash between democracy and the rule of law; the limits of the principle of non-intervention; the definition of Nation and the principle of self-determination. The celebration of a referendum without the state´s consent also tensions and contrasts some of the EU founded values (Article 2 TEU) promoted and safeguarded by art. 7 TEU. On the one hand we have the rule of law and on the other hand we have democracy and freedom of expression. This presentation will focus in the second section of the precedent sentence, meaning the collision of EU founded values.
The presentation will follow analysing the meaning of Article 7 TEU designed in origin to curb human rights abuses (Hervey and Livingstone 2016) but also as a legal instrument that the EU may avail itself of for enforcing the rule of law (Closa and Kochenov 2016). The starting point is Sadurski´s definition of article 7 as a mechanism of the Treaty on European Union that fills a gap in the Union´s approach to human rights protection by setting up a system of early warning about the risk of breaches of rights in a member State, and of sanctions in the event of determination that such breaches have occurred (Sadurski 2010).
The following aspect under scope of the presentation will be the scrutiny of the potential responses of Spain under the prism of Art. 7 TEU. So far, the Spanish Government has basically response with judicial and criminal prosecution of Catalan political representatives. Spanish institutions argue that the criminal prosecution proves the independence of the Spanish judiciary and the equality of everyone before the law. They imply that this prosecution serves as a way to strengthen the rule of law, to reinforce the institutional role of the Constitutional Court and the constitution in the state. On the Catalan side this criminal prosecution has been understood differently. They argue that the Catalan representatives have been criminally prosecuted for what they consider a political trial; a judicialisation of a political conflict and a way to weaken self-government, the right to self-determination, and democracy itself. These arguments go further comparing the political and legal responses that the United Kingdom and Canada gave to similar political claims to Scotland and Quebec respectively. Also, the criminal procedure and penal law are always a ultima ratio (last resort) in a democratic system, no justification was given to instruct these political facts in this latest instance.
However, as we are now approaching to the celebration of a real self-determination referendum in Catalonia, other measures are under consideration by the Spanish Government, ranging from the suspension of the Catalan autonomy (Article 155 SC), the enforcement of the state of exception (Article 116 SC) to the use of force (Article 8 SC) and the continuing detention and prosecution of Catalan political representatives. The presentation will end exploring these State´s potential responses and the suitability, mechanisms and manner to apply article 7 TEU in order to safeguard EU founded values.
My presentation will explore the appropriateness of applying Article 7 TEU in response to potential disproportionate measures taken by a Member State as a reaction to the threat of celebration of a referendum for self-determination. A democratic consultation held by a sub-state government without the consent of the State and against the decisions of the Constitutional Court.
The Catalonia-Spain political issue highlights many legal and political dilemmas, such as the boundaries of federalism; the undesirable clash between democracy and the rule of law; the limits of the principle of non-intervention; the definition of Nation and the principle of self-determination. The celebration of a referendum without the state´s consent also tensions and contrasts some of the EU founded values (Article 2 TEU) promoted and safeguarded by art. 7 TEU. On the one hand we have the rule of law and on the other hand we have democracy and freedom of expression. This presentation will focus in the second section of the precedent sentence, meaning the collision of EU founded values.
The presentation will follow analysing the meaning of Article 7 TEU designed in origin to curb human rights abuses (Hervey and Livingstone 2016) but also as a legal instrument that the EU may avail itself of for enforcing the rule of law (Closa and Kochenov 2016). The starting point is Sadurski´s definition of article 7 as a mechanism of the Treaty on European Union that fills a gap in the Union´s approach to human rights protection by setting up a system of early warning about the risk of breaches of rights in a member State, and of sanctions in the event of determination that such breaches have occurred (Sadurski 2010).
The following aspect under scope of the presentation will be the scrutiny of the potential responses of Spain under the prism of Art. 7 TEU. So far, the Spanish Government has basically response with judicial and criminal prosecution of Catalan political representatives. Spanish institutions argue that the criminal prosecution proves the independence of the Spanish judiciary and the equality of everyone before the law. They imply that this prosecution serves as a way to strengthen the rule of law, to reinforce the institutional role of the Constitutional Court and the constitution in the state. On the Catalan side this criminal prosecution has been understood differently. They argue that the Catalan representatives have been criminally prosecuted for what they consider a political trial; a judicialisation of a political conflict and a way to weaken self-government, the right to self-determination, and democracy itself. These arguments go further comparing the political and legal responses that the United Kingdom and Canada gave to similar political claims to Scotland and Quebec respectively. Also, the criminal procedure and penal law are always a ultima ratio (last resort) in a democratic system, no justification was given to instruct these political facts in this latest instance.
However, as we are now approaching to the celebration of a real self-determination referendum in Catalonia, other measures are under consideration by the Spanish Government, ranging from the suspension of the Catalan autonomy (Article 155 SC), the enforcement of the state of exception (Article 116 SC) to the use of force (Article 8 SC) and the continuing detention and prosecution of Catalan political representatives. The presentation will end exploring these State´s potential responses and the suitability, mechanisms and manner to apply article 7 TEU in order to safeguard EU founded values.
| Originalsprog | Engelsk |
|---|---|
| Publikationsdato | 1 sep. 2017 |
| Status | Udgivet - 1 sep. 2017 |
| Begivenhed | PROTECTING EU VALUES Article 7 TEU, the EU Rule of Law Framework and EU Values: Powers, Procedures, Implications - University of Warsaw, Warsaw, Polen Varighed: 13 sep. 2017 → 15 sep. 2017 |
Konference
| Konference | PROTECTING EU VALUES Article 7 TEU, the EU Rule of Law Framework and EU Values: Powers, Procedures, Implications |
|---|---|
| Lokation | University of Warsaw |
| Land/Område | Polen |
| By | Warsaw |
| Periode | 13/09/2017 → 15/09/2017 |
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