Democracy Threatened: Judicial Independence Under Attack in Poland

Democracy Threatened: Judicial Independence Under Attack in Poland

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

– James Madison[1]

 

In the years following the fall of the Soviet Union, Poland emerged as a nation poised to embrace and fulfill the promises of Western democracy.[2] However, since coming into power in 2015, Poland’s Law and Justice Party (hereinafter LJP) has attempted to secure authoritarian power by radically reforming the nation’s judiciary.[3] As a part of their attempted power-grab, the LJP first overhauled the nation’s Constitutional Tribunal, which ensures that rules of law do not violate the Constitution.[4] Additionally, the Party took control of the National Council of the Judiciary, which is tasked with overseeing judicial appointments and safeguarding judicial independence in Poland.[5] Since the takeover of the two delegating bodies, the Party has packed the panels with judges who are sympathetic to the LJP, giving politicians near complete control of the judiciary.[6]

Most recently, the LJP has taken aim at the highest court in Poland as a part of their judicial takeover—the Supreme Court. In September of 2018, President Andrzej Duda signed into law judicial legislation lowering the mandated retirement age of Supreme Court justices from 70 to 65, thus forcing 27 of the 72 serving judges into retirement.[7] Further, judges who wish to stay on the bench past the mandated age of retirement must seek approval from President Duda.[8]

In response to growing public outcry and increased protesting, the LJP has justified the judicial overhaul as necessary to increase judicial efficiency and, ironically, force out judges held-over from the pre-1989 communist regime.[9] Additionally, Party officials contend deep judicial changes are needed in order to restore justice and fairness to ordinary Poles who are currently victim to a corrupt system which thwarts the will of the people.[10]

Critics of the LJP, however, are fearful the hostile judicial takeover is an attempt to dismantle the rule of law in Poland and threat to Polish democracy via abolishing judicial independence.[11] Dariusz Zawistowaki, chief justice of the Supreme Court’s civil division, sees the judicial reform as “politiciz[ing]” the judiciary, and fears democratic standards developed since 1989 will be “gone.”[12] Likewise, opponents to the Party contend the governing party is building a judicial system which will be “subservient” to the Party’s political rule.[13]

If the LJP is able to stack and control the Supreme Court, some critics have urged the Party will be able to effectively govern Poland the way the old Communist Party governed the nation.[14] Opponents fear the Party will rig national elections, punish outspoken political adversaries, and rule without concern for judicial ramifications.[15] According to opposition lawmaker Kamila Gasiuk-Pihowicz, the LJP’s strategy involves wearing down the Polish people with legal abstracts, such as judicial independence, that the country is no longer resistant to the Party’s judicial reform.[16]

Fortunately, as the legal battle over Poland’s judiciary is coming to a head, both the European Union and Poland’s Supreme Court are fighting back against the LJP. The Polish Supreme Court, under its president Malgorzata Gersdorf, made the decision to suspend administering President Duda’s judicial legislation law.[17] Instead, the Court took the extraordinary step of appealing directly to the European Court of Justice, asking the Court to rule against the Party’s attempt to forcibly retire over 40% of current Supreme Court justices.[18] Gersdorf insists the law is unconstitutional and refuses to comply with the judicial legislation.[19] Consequently, the Court sent five questions to the European Court of Justice in an attempt to suspend the implementation of the law until the questions are answered by the higher Court.[20]

However, President Duda rejected the Supreme Court’s ruling, saying the Court “acted improperly” and the Court’s decision “will have no consequences for the president or any other body.”[21] Consequently, in October of 2018, Duda announced the Supreme Court had added 27 new judges to replace the judges forced to retire.[22] The decision to appoint the new Supreme Court justices came in a secret ceremony as an attempt to circumvent European Union interference.[23] The European Commission, an executive arm of the European Union, launched Article 7 against Poland, commanding President Duda to reverse the appointments and reinstate the previously serving judges, or the matter will be sent to the European Court of Justice for further review.[24] The European Union alleges the LJP’s judicial reform violates Article 19 of the Treaty of the European Union, read in connection with Article 47 of the Charter of Fundamental Rights of the European Union.[25] Read together, the European Union asserts retiring Supreme Court judges must leave the bench independently and the LJP’s judicial reform undermines judicial independence and the irremovability of judges.[26]

On Friday, October 19, 2018, the European Court of Justice responded to the European Commission’s inquiry and issued an injunction stopping the new law.[27] The European Union’s top court ordered Poland to freeze judicial appointments and reinstate the judges who were prematurely forced into retirement.[28] Welcoming the ruling, Polish district judge Monika Frackowiak noted the fundamental importance of the ruling and hopes “it will somehow stop this process of demolishing the judiciary.”[29] Likewise, a spokesperson for Amnesty International’s European Institution’s Office warned the European Court of Justice’s order “makes it clear that it is unacceptable for Poland to ignore the [European Union’s] most fundamental principles” and “[a]nything but immediate and full compliance . . . would clearly show . . . Polish authorities have complete disregard for the rule of law.”[30] However, Duda’s cabinet chief announced “it’s impossible for law to work in reverse,” implying the LJP does not plan on complying with the recently issued injunction and the tension between the European Union and Poland will only continue to escalate.[31]

As the European Union struggles to deal with nationalist, populist, and anti-immigration movements arising under its jurisdiction,[32] intervention against the threat against democracy in Poland has never been more crucial. As countries in the region, such as Hungary, have recently turned to autocracy, adhering to the democratic standard of judicial independence and irremovibility of judges is critical to instilling public faith in the judiciary and further promoting Poland’s quest towards a complete democracy. If Poland’s judiciary falls under the control of the Law and Justice Party, the ripple effect felt through former Soviet Union nations could give way to governing in the manner of the Communist Party throughout Central Europe. Furthermore, the democratic standards developed in Poland since 1989 may be undone and upon the Law and Justice Party’s seizure of legislative, executive, and judiciary, the words of James Madison will once more ring true and Poland’s authoritative governing party “may justly be pronounced the very definition of tyranny.”[33]

 

 

 

 

[1] The Federalist No. 47 (James Madison)

[2] Marc Santora, Poland Purges Supreme Court, and Protesters Take to Streets, New York Times (July 3, 2018), https://www.nytimes.com/2018/07/03/world/europe/poland-supreme-court-protest.html.

[3] President ‘waits calmly’ for top EU judges decision on Polish Supreme Court, Radio Poland (May 5, 2018), http://www.thenews.pl/1/10/Artykul/385851,President-waits-calmly-for-top-EU-judges-decision-on-Polish-Supreme-Court.

[4] Griff Witte, Poland’s judges boycott Supreme Court posts, accusing the government of a takeover bid, The Washington Post (Aug. 17, 2018), https://www.washingtonpost.com/world/europe/polands-judges-boycott-supreme-court-posts-accusing-the-government-of-a-takeover-bid/2018/08/17/8a9a5590-943a-11e8-818b-e9b7348cd87d_story.html?noredirect=on&utm_term=.3cc5e20fc18b.

[5] Id.

[6] Id.

[7] Santora

[8] Jan Cienski, Polish Supreme Court turns to ECJ for help, Politico (Aug. 2, 2018), https://www.politico.eu/article/polish-supreme-court-turns-to-ecj-for-help-older-judges-retirement-eu-rule/.

[9] Witte

[10] Santora

[11] Brussels opens new case against Poland over Supreme Court reforms, Radio Poland (Feb. 7, 2018), http://www.thenews.pl/1/10/Artykul/370998,Brussels-opens-new-case-against-Poland-over-Supreme-Court-reforms.

[12] Witte

[13] Santora

[14] Witte

[15] Id.

[16] Id.

[17] Cienski

[18] Witte

[19] Cienski

[20] Witte

[21] Id.

[22] Manny Marotta, Poland adds 27 Supreme Court justices, defying EU, Jurist (Oct. 12, 2018), https://www.jurist.org/news/2018/10/poland-adds-27-supreme-court-justices-defying-eu/.

[23] Id.

[24] Id.

[25] European Commission Press Release IP/18/5830, Rule of Law: European Commission refers Poland to the European Court of Justice to protect the independence of the Polish Supreme Court (Sept. 24 2018).

[26] Id.

[27] John Stone, European Court of Justice orders Poland to stop purging its supreme court judges, The Independent (Oct. 19, 2018), https://www.independent.co.uk/news/world/europe/poland-supreme-court-judges-eu-european-court-judge-ecj-a8592136.html.

[28] Id.

[29] Vanessa Romo, Top EU Court Blocks Polish Supreme Court Law Forcing Judges to Retire, NPR (Oct. 20, 2018), https://www.npr.org/2018/10/20/659016900/eus-top-court-blocks-poland-s-supreme-court-law-forcing-judges-into-retirement.

[30] Stone

[31] Romo

[32] Santora

[33] See supra note 1.

 

The Avtomat Kalashnikov Model of Year 1947

 

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the position of JLIA, Penn State Law, School of International Affairs, or Pennsylvania State University.

 

In examining modern history, the tools that have been responsible for the majority of combat related deaths are small arms and light arms. Small arms are man-portable weapons like rifles, pistols, and light machine guns, light arms are weapons operated by crews of people like mortars, recoilless rifles, and heavy machine guns.[i] The king of small arms and the rifle—AK or Avtomat Kalashnikov rifle—has been in nearly every conflict since 1950. It is the brainchild of Mikhail Kalashnikov, a soviet tank commander who envisioned a soviet army equipped with a nigh unstoppable rifle. The AK is an eight-pound amalgamation of wood and steel that can operate in mud, sand, dust and similar conditions that would make competing western rifles fail. The operation and maintenance of the rifle is so simple that child soldiers are often equipped with it.

 

In the years following its adoption in 1947, the production of the AK and its variants were spread out among the Warsaw Pact countries and “licensed” to other nations as well. The AK rifle and the cheap and effective power it could lend to small groups was as much a Soviet export and component of Soviet foreign policy as was the spread of communism. In the eyes of the Soviet Union, the rifle was the chief tool by which the proletariat could rise up in communist insurrection around the world. The devastating effect of the AK was first seen by the world during the Vietnam war. The deadly reputation of the AK was solidified in the jungles of Southeast Asia and has been and still is reinforced in conflicts around the world. From the killing fields in Cambodia to the massacres in Yugoslavia and in the hands of terror groups worldwide, the AK is a mainstay in modern conflicts. The abundance of AK sightings in conflict zones is mainly due to the war doctrine of the Soviet Union. The Soviet Union’s battlefield policy was not to repair but to replace as the need arose, as a result of this doctrine, the Soviet Union and Eastern Bloc nations produced a staggering amount of AK rifles for a war with the west that never came. As of 2004, of the nearly 500 million firearms in the world 100 million are AK or AK variants produced by nations, failed states, and even insurgent groups.[ii]

 

Since the fall of the iron curtain and the primary purpose of toppling the west was lost, the rifles have seen varying uses around the world. Envisioned by Mikhail Kalashnikov as a tool of liberation, the AK has ended up becoming the symbol of tyranny, crime, and terror.[iii] Most modern stockpiles of AK rifles used by terror or criminal groups come from unlicensed productions being produced today or leftovers from the Cold War era. AK rifles are still being produced today, nations like China, Iran, North Korea, India and many others produce near identical rifles that have indigenous names. These rifles, while officially for state use only have seeped into black markets and ended up in the hands of criminal and terror organizations around the world. Beyond the currently produced rifles, many of the rifles used in crimes across western Europe come from Eastern bloc stockpiles. After the fall of the iron curtain, former Warsaw Pact nations were extremely poor and had one chief export: arms and armor from the cold war.

 

The effects of the sell-off of cheap rifles made for war are felt today. While western European nations are fearful of firearms and impose stricter and stricter gun laws, terrible attacks like the one on the offices of Charlie Hebdo, the concert in Paris, and the constant attacks in Sweden are becoming more common. The AKs used in the Paris attacks were supposedly leftover rifles from the fall of Yugoslavia, leftovers from the communist era that still carry their deadly purpose.[iv] Most of the AK rifles seeping into Western Europe make their way from the Balkans.[v]

 

The legal issue here is how to create governmental restrictions and impositions that would better protect the people of the world and in particular western Europe. Simply setting limitations within the sovereignty of nations is clearly ineffective. Weapons seep through the borders of nations that lie next to former soviet satellite states, and the free travel within the European nations allows for easy transport of weapons once in the union. The UN has not remained idle on this issue either, in 2014 the landmark treaty named Arms Trade Treaty (ATT) entered into force.[vi] Signed by nearly 92 nations worldwide, the ATT is a near global attempt to set standards on the import and export of small-arms and other more conventional weapons worldwide. The purpose is to curb the regional and international insecurity that is caused by unregulated arms trafficking. So far, the efficiency of the treaty remains in question, many attacks have happened and continue to happen with weapons that originate from nations that have signed the treaty.

 

The ATT’s substantive language states that the goal is to “create a safer environment for the United Nations and other organizations.”[vii] This goal is supposed to be achieved by the “regulation of cross-border trade of conventional arms.”[viii] This goal is admirable but ultimately seems insufficient to stop the spread and usage of AK rifles and other soviet arms that have been left behind in the wake of the Cold War

 

The answer to preventing more weapons from ending up in the “wrong hands” is not a simple one. The issue lies with understanding the motivations of those who sell the firearms illegally. Many of the groups currently selling illicit firearms to western European buyers are motivated by money. The average price for an AK rifle is about $1200 in Belgium.[ix] Lack of economic opportunities leads to the transaction of the only goods that seem to hold value: weapons. Perhaps the answer lies in creating a multinational organization that has the sole purpose of finding and purchasing Kalashnikov rifles and preventing them from falling into the control of nefarious groups in the west.

 

While the solution suggested in this article is far from one based in a legal basis, the current solutions presented by passage of legislation or treaties does not seem to be stemming the tide of deadly relics of the Soviet Union making their way into Europe.

 

About the Author: Hojae Chung is a 2L at Penn State Law.


 

[i] Klare, Michael, Small Arms Proliferation and International Security, Hampshire College

https://www.hampshire.edu/pawss/small-arms

[ii] Chivers, C.J., The AK-47: ‘The Gun’ That Changed The Battlefield, NPR https://www.npr.org/templates/story/story.php?storyId=130493013

[iii] Franko, Blake, The Gun That Is in Almost 100 Countries: Why the AK-47 Dominates, NationalInterest.com

http://nationalinterest.org/blog/the-buzz/75-million-guns-ready-war-why-the-ak-47-dominates-20561

[iv] Bajekal, Naina and Walt, Vivienne, How Europe’s Terrrorists Get Their Guns, Time.com

How Europe’s Terrorists Get Their Guns

[v] Ask not from whom the AK-47s flow, Economist

https://www.economist.com/news/europe/21697019-answer-often-serbia-croatia-or-bulgaria-ask-not-whom-ak-47s-flow

[vi] The Arms Trade Treaty, UN.org

The Arms Trade Treaty

[vii] Module 1: Arms Trade Treaty Implementation Kit, UN

https://unoda-web.s3-accelerate.amazonaws.com/wp-content/uploads/2015/08/2015-08-21-Toolkit-Module-1.pdf.

[viii] Id.

[ix] McCarthy, Niall, The Cost of An AK-47 On the Black Market Around the World, Forbes.com

https://www.forbes.com/sites/niallmccarthy/2017/03/30/the-cost-of-an-ak-47-on-the-black-market-across-the-world-infographic/#628e8d887442

Amexit? Can Trump leave NAFTA & What Would Happen if he did

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the position of JLIA, Penn State Law, School of International Affairs, or Pennsylvania State University.

 

On June 23, 2016, the United Kingdom (“UK”) voted to leave the European Union (“EU”), the body that has been the definition of prestige in the realm of international treaties.[i] This triggered hysteria, rightfully so, because while the rest of the world were not a part of this treaty, it was so intertwined with any country’s relation Europe that it left countries like America and Canada wondering what it meant for them. But while “Brexit” has caused such uncertainties for countries that are not party to the EU, what would happen if a country like America were to withdraw from one of their biggest treaties? Well, this speculation might have to become reality if President Trump ends up getting his way and leaving the North American Free Trade Agreement.

 

Before Donald Trump took office, he consistently spewed during Presidential Debates that “NAFTA is the worst trade deal maybe ever signed anywhere, but certainly ever signed in this country.”[ii] While Trump argues that NAFTA has only ever hindered the US, would it in fact be as devastating to America for them to leave NAFTA as it is for the UK to leave “EU”? International Trade expert, and Penn State Law faculty member, Takis Tridimas argues otherwise.[iii] Tridimas argues that, while he believes it is unlikely that the US will withdraw from NAFTA, in the event of NAFTA Article 2205[iv] being triggered by the US, he vehemently argues that it will not have such an impact of that of Brexit.[v] This leads Tridimas to mentioning that where Brexit solely uses the EU as the basis of negotiations, and how to readdress issues that are up in the air with the UK leaving certain mechnisms of the EU, the United States comes into NAFTA and withdrawal of NAFTA needing their position to encompass the United States Constitution.[vi]

 

This draws the attention to another issue with President Trump’s solo campaign to withdraw from NAFTA, does he know the Commerce Clause exists?[vii] Under the Constitutions Commerce Clause, Trump cannot terminate NAFTA, nor could he have even renegotiated it without a “yes” from Congress.[viii] While we can debate whether or not the President’s knowledge of the Constitution is substantial or not, or if America leaving NAFTA will be as detrimental of Brexit has been in the EU, the question remains: What would happen if America did leave NAFTA?

 

Well there’s a whole slew of things. Firstly, in my opinion, the dispute resolution mechanism of NAFTA would disappear first and fast.[ix] This system of dispute resolution has been rarely used, with the United States, Canada and Mexico all being members of the World Trade Organization (“WTO”), NAFTA’s Chapter 20 and WTO’s Dispute Settlement Understanding (“DSU”) are often venue shopped between these three countries, with preference being given to the WTO’s dispute resolution system.[x]

 

Secondly, Trump would not hesitate to reinstate various tariffs on Mexico, likely using the WTO’s maximum tariff percentage, as it would be the only binding material on free trade that America would need to adhere to foregoing NAFTA.

 

Thirdly, the most interesting events to succeed the termination of NAFTA would to examine if the United States, Canada and Mexico either multilaterally institute a new agreement or if the countries would forego one another and decide to bilaterally create agreements. With the uncertainty of Congress today, it would not be surprising if Canada and Mexico decided that they would institute a new trade agreement between the two of them. This would likely be followed with new bilateral agreements between Canada and the US and the US and Mexico. Wouldn’t this just unnecessarily complicate matters of free trade between the three countries? To have terminated one simple, all-encompassing, agreement because of a President’s pride (or the Republican Congress’s pride) be replaced with two separate binding agreements, that must also adhere to the global trade organizations guidelines; where’s the common sense in that?

 

Whether the United States decides to leave NAFTA or not is something that only time will be able to tell and we may never see the hypothetical consequences; yet, it could be worse … just look at the failing negotiations of Brexit.

 

About the Author: Pooja Toor is a 2L at Penn State Law.


 

[i] Alex Hunt & Brian Wheeler, Brexit: All you need to know about the UK leaving the EU BBC News (2017), http://www.bbc.com/news/uk-politics-32810887 (last visited Nov 9, 2017).

[ii] Cooper Allen, 2016 general election debate schedule USA Today (2016), https://www.usatoday.com/story/news/politics/onpolitics/2015/09/23/2016-general-election-debate-schedule/81238502/ (last visited Nov 15, 2017).

[iii] Pooja Toor & Takis Tridimas, Personal Interview of Takis Tridimas (2017).

[iv] North American Free Trade Agreement, Can.-Mex.-U.S., Art. 2205, Dec. 17, 1992, 32 I.L.M. 289 (1993).

[v] Pooja Toor & Takis Tridimas, Personal Interview of Takis Tridimas (2017).

[vi] Id.

[vii] U. S. Const. art. I, § 8, cl. 3

[viii] Id.

[ix] North American Free Trade Agreement, Can.-Mex.-U.S., Ch. 20, Dec. 17, 1992, 32 I.L.M. 289 (1993).

[x] R. Leal-Arcas, Comparative Analysis of NAFTA’s Chapter 20 and the WTO’s Dispute Settlement Understanding, 8 in Transnational Dispute Management, www.transnational-dispute-management.com (2011)

Catalonia: The Search for Independence

On Sunday October 1, 2017, Catalonia voted for independence from Spain.[1] Catalonia, the northeastern region of Spain that encompasses Barcelona, held a referendum and voted to become an independent state. Before the referendum took place, the Spanish courts and governments declared the holding of the referendum and the actual referendum as violations of the Spanish Constitution.[2] When the Catalans proceeded to hold the referendum against the demands of the Spanish government and leader, Mariano Rajoy, the central question shifted from the issue of Catalan independence to a more basic question of whether Catalans have the right to decide on statehood.

 

Over the past few decades, Europe has seen a lot of its states declare independence, including Crimea, Scotland, and Kosovo.[3] Similarly, the Catalans have several reasons as to why they believe they should have their own, independent state. First, Catalonia has its own distinct language, history, and culture from the rest of Spain. Catalonia was independent until it was captured by Philip V of Spain in 1714.[4] Since then, Catalonia has retained much of its own distinct language and culture, separate from the rest of Spain. This has caused much tension between Catalonia and the rest of Spain, especially during the Franco dictatorship, where the Spanish government tried to wipe out all of the Catalan culture and history.[5] Second, Catalonia almost was granted autonomy by the Spanish courts, but the statute was struck down as unconstitutional in 2010.[6] Third, the Spanish prime minister rejected a plea from Catalonia to reduce Catalonia’s contribution to the Spanish tax system that transfers money from wealthier areas to poorer areas of Spain.[7] Catalonia is the biggest contributor to the Spanish economy, and believes that it is being treated unfairly by having to contribute so much money to the rest of the Spanish economy.[8] Finally, Catalans believe that Spain is denying them the right to vote on their future.[9]

 

Although Catalans have compelling points for independence, Spain also has compelling points against Catalan independence. First, Catalonia is the biggest contributor to the Spanish economy.  If Catalonia were to secede, it could have destabilizing effects on both economies, and both states could face disastrous economic futures.[10] Second, Spain believes that Catalonia is undermining the democracy of Spain by flouting the rules and violating the Constitution.[11] If Spain did not object to this type of behavior, it could set a dangerous precedent for other regions in Spain. Third, Spain does not believe that Catalonia will be allowed back into the European Union (EU), which would have even more destabilizing effects on the country, and the EU as a whole.[12] Finally, Spain does not believe that Catalonia should be granted the opportunity to create its own country without a solid plan.[13]

 

The Spanish government and Spanish court have both determined that Catalan’s vote for independence violates Spain’s Constitution.[14] The EU is siding with Spain in this declaration of independence. Although the EU is a democratic body, it is a democratic body made up of sovereign states, and is therefore wary of encouraging separatist bodies that threaten the sovereignty of its member states.[15] If Catalonia succeeds in gaining independence, it would like to rejoin the EU as its own independent nation, something the EU has had no opinion about.[16] Catalonia has looked to the European Commission to intervene in this situation, but the EU has stated that Catalonia is a problem for Spain, not for the European Commission to deal with.[17] The EU is standing with its long held tradition of discouraging separatism, especially after the recent cases in Great Britain, Kosovo, and Crimea.[18] Because of he bias that the EU has shown towards Spain, the Catalans no longer view the EU as a neutral mediator in this situation, and have requested that the Venice Commission of International Lawyers, a part of the Council of Europe, to step in and handle the situation.[19] As of now, there is no word as to whether this will happen.

 

Catalans claim that Spain should look to other EU member states that have had similar separatist issues in the past, like Belgium.[20] When the Flanders population of Belgium threatened to declare independence, Belgium used a process of ongoing constitutional reform to give the Flanders population much more autonomy.[21] However, as of now, the Spanish courts and government are not deviating from their view that the declaration of independence is unconstitutional. [22] This move towards Catalan independence also causes worry that other regions of Spain, such as the Basque region, might move towards independence as well. The Basque region already has won control over its own tax receipts, something that the Catalans are demanding, so a vote for independence might not be far off.[23]

 

One of the questions that is up in the air at this point is whether the EU could recognize Catalonia as an independent state, and allow it to become an independent member of the EU. According to the Prodi Doctrine, a breakaway state would have to leave the EU and could then only be let back into the EU if the state had gained independence in accordance with the constitutional law in the member state that it left.[24] Further, any new member state must enter the EU with the unanimous agreement of all of the other member states.[25] In the case of Catalonia, clearly Spain would object to allowing Catalonia back into the EU, assuming that Catalonia gained independence constitutionally in the first place. But Spain would hardly be the only member state that will veto allowing Catalonia into the EU. Most member states are against separatism and the fragmentation of Europe, and allowing Catalonia back in could set a dangerous precedent.[26] Taking Kosovo as an example, today five of the 28 member states still do not recognize Kosovo as an independent state.[27] It would seem that the EU would have to respect the decisions of the Spanish government and constitutional courts and not recognize Catalonia as an independent member state.

 

The referendum was approved by over 90% of the 2.3 million Catalans who voted.[28] Although Catalonia is still pushing for independence, there has already been instability within the region. Before the vote occurred, the Spanish government deployed approximately 4,000 police officers to attempt to stop people from voting.[29] Hundreds of people were injured as the police used rubber bullets and truncheons to stops people from voting and to seize the ballot boxes.[30] Police also attempted to disable the Internet to interfere with the vote.[31] The Catalan referendum has been called the gravest threat to Spain’s democracy since Franco’s dictatorship in the 1970s.[32] Stay tuned to see what happens next.

 

About the author: Olivia Levine is a 2L at Penn State law.


 

[1] Minder, Raphael. “Catalonia Leaders Seek to Make Independence Referendum Binding.” The New York Times, The New York Times, 2 Oct. 2017, www.nytimes.com/2017/10/02/world/europe/catalonia-spain-independence-referendum.html

[2] Id.

[3] Id.

[4] Minder, Raphael. “Catalonia Independence Bid Pushes Spain Toward Crisis.” The New York Times, The New York Times, 8 Sept. 2017, www.nytimes.com/2017/09/08/world/europe/spain-catalonia-independence.html.

[5] Osborne, Samuel. “Catalonia: Spanish Government Demands Catalan Leader Clarify Whether Independence Has Been Declared.” The Independent, Independent Digital News and Media, 11 Oct. 2017, www.independent.co.uk/news/world/europe/catalonia-independence-spain-prime-minister-clarify-catalan-leader-mariano-rajoy-carles-puigdemont-a7994326.html.

[6] Minder, Raphael and Ellen Barry. “Catalonia’s Independence Vote Descends Into Chaos and Clashes.” The New York Times, The New York Times, 1 Oct. 2017, www.nytimes.com/2017/10/01/world/europe/catalonia-independence-referendum.html.

[7] Id.

[8] Id.

[9] Id.

[10] Erlanger, Steven. “For E.U., Catalonia Pits Democratic Rights Against Sovereignty.” The New York Times, The New York Times, 2 Oct. 2017, www.nytimes.com/2017/10/02/world/europe/catalonia-independence-referendum-eu.html

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Rodríguez, Blanca, and Sonya Dowsett. “Spain Gives Catalan Leader 8 Days to Drop Independence.” Reuters, Thomson Reuters, 12 Oct. 2017, www.reuters.com/article/us-spain-politics-catalonia/spain-gives-catalan-leader-8-days-to-drop-independence-idUSKBN1CG12O

[23] Erlanger, Steven. “For E.U., Catalonia Pits Democratic Rights Against Sovereignty.” The New York Times, The New York Times, 2 Oct. 2017, www.nytimes.com/2017/10/02/world/europe/catalonia-independence-referendum-eu.html

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Osborne, Samuel. “Catalonia: Spanish Government Demands Catalan Leader Clarify Whether Independence Has Been Declared.” The Independent, Independent Digital News and Media, 11 Oct. 2017, www.independent.co.uk/news/world/europe/catalonia-independence-spain-prime-minister-clarify-catalan-leader-mariano-rajoy-carles-puigdemont-a7994326.html.

[29] Ellyatt, Holly. “Constitutional Crisis Looms in Spain as Catalonia Looks to Vote on Independence.” CNBC, CNBC, 28 Sept. 2017, www.cnbc.com/2017/09/28/constitutional-crisis-looms-in-spain-as-catalonia-looks-to-vote-on-independence.html

[30] Minder, Raphael and Ellen Barry. “Catalonia’s Independence Vote Descends Into Chaos and Clashes.” The New York Times, The New York Times, 1 Oct. 2017, www.nytimes.com/2017/10/01/world/europe/catalonia-independence-referendum.html.

[31] Id.

[32] Id.

Stateless Nations: The Failing Peaceful Route to Independence

The recent referendums for both Catalonian and Iraqi Kurdish independence seem to have failed after being rejected by the government or judicial system of their respective governments.[1] While this may not be surprising to most observers, it is the furthest either movement has gone towards full independence – and the continued unrest in Catalonia represents the worst relationship that Barcelona has had with Madrid in decades. In both cases, it seems that the supposed legal avenue to independence by means of referendums and negotiations with the central government is not be possible, and that the peaceful route to independence for stateless nations has been proven to be an impossibility.

The Iraqi section of Greater Kurdistan remains the only section of the Kurdish population to be recognized as autonomous (see figure 1). In 1970 the Iraqi government granted the province of Kurdistan autonomous status, and the Federal Iraqi Republic confirmed that autonomy in 2005.[2] In Syria, Kurdish fighters have seized control of much of northern Syria from government forces, established their own government, and plan for greater autonomy following the war.[3] The Iranian section of Greater Kurdistan, although bearing the provincial name of Kurdistan, is not recognized as autonomous and does not enjoy any sort of self-rule. At a trade meeting on October 4, Iranian President Rouhani and Turkish President Erdogan both criticized the Iraqi referendum, calling it illegitimate and announcing their intent for more “decisive action” in opposition to a Kurdish state.[4]

The aftermath of the Iraqi Kurdish referendum for independence has shown Baghdad’s strong opposition to independence, including a complete refusal to negotiate with Kurdish leaders on the subject. Although the referendum was reported to show over 90% in favor of independence, Kurdish parliamentarians boycotted sessions of the Iraqi Parliament and the Shiite-dominated legislature moved to respond to the referendum by securing assets such as airports and oil fields in Iraqi Kurdistan.[5] Greater Kurdistan has never enjoyed independence, and opposition by all three states that include the claimed territory of Greater Kurdistan make legal progress towards independence unlikely.

Figure 1: Map of Kurd Population[6]

 

In Catalonia, which has a varied history of independence and autonomy, a peaceful movement of protests and referendums has defined aspirations of independence. Between 2000 and 2010, the pro-Madrid socialist party controlled the Catalan Parliament, but in 2010 Artur Mas and his pro-independence party won control of the legislature and held a referendum on independence in 2014. The Spanish courts and parliament labeled the referendum as unconstitutional and arrested Mas, who was convicted in March 2017, fined, and barred from holding office for two years.[7] Other legal efforts have included a 1983 provincial law making Catalan and Castilian Spanish equal languages. The law was validated by the Spanish Supreme Court in 1994 after challenges by the central government failed to overturn it.[8]

The referendum on independence held in early October 2017 by Catalan leader Carles Puigdemont was met with a repeat of the 2014 ban by Spanish courts, but has not resulted in convictions because it is being done under the agreeable auspices of Catalonia’s provincial judicial system and police force. If Catalonia declares unilateral independence, Madrid will most likely institute control over Catalonia’s administration and police force, but the chances of the movement becoming violent are higher than they have been in recent decades.[9]

Failed referendums in Catalonia and Kurdistan, particularly from the perspective of a long legal battle over Catalan autonomy for the former, show the apparent ineffectiveness of legal tools to achieve independence. If violence is to be avoided in these struggles for recognition and autonomy, usage of the law and meaningful dialogues must be as legitimate to central governments as leaders of independence movement hope them to be. For Catalonia, the answer seems to be recognition by the international community – in particular, the European Union. For Greater Kurdistan, the solution for true recognition is unclear, particularly while violence against the central government has led to the existing levels of autonomy enjoyed in Kurdish-held enclaves such as the oil-rich city of Kirkuk.

 

About the Author: Ben Black is a student at the School of International Affairs. 


 

[1] Zucchino, David. 2017. “Iraq Orders Kurdistan to Surrender Its Airports.” The New York Times. https://www.nytimes.com/2017/09/26/world/middleeast/iraq-kurds-independence.html?_r=0 (October 6, 2017).

Minder, Raphael. 2017. “Catalonia Leaders Seek to Make Independence Referendum Binding.” The New York Times. https://www.nytimes.com/2017/10/02/world/europe/catalonia-spain-independence-referendum.html (October 6, 2017).

[2] Iraqi Constitution, Article 113

[3] “Kurds seek autonomy in a democratic Syria.” BBC News. http://www.bbc.com/news/av/world-middle-east-19291072/kurds-seek-autonomy-in-a-democratic-syria (October 6, 2017).

[4] Regencia, Ted. 2017. “Erdogan, Rouhani united in opposition to Kurdish state.” Al Jazeera. http://www.aljazeera.com/news/2017/10/erdogan-rouhani-united-opposition-kurdish-state-171004124507138.html (October 6, 2017).

[5] Press, The Associated. 2017. “Kurdish Lawmakers Boycott Iraq Parliament Session in Baghdad.” The New York Times. https://www.nytimes.com/aponline/2017/10/03/world/middleeast/ap-ml-iraq.html (October 6, 2017).

[6] Izady, Mehrdad. The Gulf Project. Columbia University. http://gulf2000.columbia.edu/maps.shtml

[7] Murphy, Carver. 2017. Penn State Schreyer Honors Thesis. “Stateless Nations and Their Endeavor for Independence.”

[8] Earl L. Rees. Spain’s Linguistic Normalization Laws. pg 314.

[9] Minder, Raphael. 2017. “Catalonia Government Declares Overwhelming Vote for Independence.” The New York Times. https://www.nytimes.com/2017/10/06/world/europe/catalonia-referendum-sedition.html (October 6, 2017).