Several years after the controversial self-determination referendum of October 1, 2017, which was unilaterally called by the Catalan government, the issue of the referendum and its potential use in Catalonia has resurfaced in public debate. This has been largely driven by the preparation of two reports on the matter over the past two years, commissioned by the then-President of the Generalitat (the Catalan government institution), Pere Aragonès.

Moreover, the recent proposal for a new roadmap by Esquerra Republicana de Catalunya (the party which Pere Aragonès belongs to, now in opposition, and which, alongside Junts per Catalunya, spearheaded the secessionist movement) maintains the objective of a referendum. However, this proposal, pending discussion and approval at the party’s Congress, avoids specifying its conditions and prioritizes other issues such as territorial financing, in line with the shifting political context, which is currently less favorable to breaking away from Spain.

The following analysis examines the conditions proposed in the two reports mentioned, which lay the groundwork for discussions regarding the possibility of a new but negotiated referendum.

On one hand, there is the "Report on the Clarity Agreement", presented in October 2023 by the Academic Council for the Clarity Agreement (CA), which, as its name suggests, draws inspiration from the famous 1998 Supreme Court of Canada Reference on Quebec’s secession, which led to the 2000 federal Clarity Act on referendums. This report identifies the characteristics a potential "clarity" agreement should have in resolving the existing conflict "over Catalonia’s political future." It details both the existing mechanisms for expressing territorial preferences and the ways to institutionalize the expressed aims.

On the other hand, there is the Report 1/2024 on "Identification and Specification of Legal Pathways for Holding a Referendum to Ask the Citizens of Catalonia about Independence," issued in April 2024 by the Institut d’Estudis d’Autogovern (IEA). As indicated by its title, this report focuses exclusively on the referendum mechanism. It proposes a direct question about independence (excluding other options, such as Catalonia’s reconfiguration within Spain) and directs the question solely to Catalan citizens, with little consideration for extending the consultation to the rest of Spain’s population.

Several aspects of these reports are particularly noteworthy as they reflect the changes that have taken place since the outbreak of the secessionist crisis in Catalonia. For example, the first report – produced by a Council that, while not completely diverse, has greater ideological variety in its composition than the Advisory Council for National Transition (which produced the reports guiding the secessionist roadmap between 2013 and 2017) – expresses criticism of the unilateral actions carried out during the so-called procés. These criticisms can be interpreted as an acknowledgment, in line with the doctrine established by the Canadian Supreme Court in 1998, that there were not only violations of Spain’s constitutional law but also breaches of fundamental principles of democratic state and constitutional theory.

At the same time, the report relies on these same principles to move beyond positive law and defend the possibility of a self-determination referendum confined to Catalonia (although it also considers the possibility of a complementary referendum across the entire Spanish state). Specifically, it highlights the issue of democratic legitimacy in heterogeneous states or those with structural minorities, suggesting that majority rule should be adapted in cases where decisions significantly affect these permanent minorities (pp. 11 and 54).

Nonetheless, in accordance with this same doctrine, which presumably legitimizes a referendum in Catalonia, the report emphasizes that the adaptation of the majority rule must also ensure democratic principles within Catalonia itself, thereby protecting what could be considered the minorities within the minority (p. 12).

Thus, the report acknowledges inherent problems with referendums, such as their flawed aggregation of preferences, the resulting polarization, and the complications this creates in reaching consensus (pp. 37 and 49-51). These issues are particularly relevant in referendums intended to resolve territorial conflicts. Consequently, the report advocates correcting these dysfunctions through participation and approval quorums or even holding sequential referendums. Additionally, the report suggests supplementing the referendum with agreements between representative institutions and warns that a referendum alone will not provide solutions, particularly in the short term.

The cases analyzed in both reports are those of Scotland and Quebec. The United Kingdom and Canada are presented as examples of liberal democracies that have allowed referendums to resolve such conflicts. Additionally, reference is made to the guidelines set by the Venice Commission in its Code of Good Practice on Referendums. The aim is thus to identify parameters that go beyond those of Spanish constitutional law.

Furthermore, the second report acknowledges differences between Catalonia and Scotland that complicate holding a referendum in Catalonia. These include the absence of a written constitution in the United Kingdom that proclaims national unity or British popular sovereignty (as Spain’s Constitution does in Articles 2 and 1.2, respectively) and the United Kingdom’s configuration as a voluntary association of nations.

The second report argues for the possibility of a self-determination referendum within Spain’s legal-constitutional framework, which necessitates legal and jurisprudential changes. To this end, it focuses on two legal pathways: Article 92 of the Spanish Constitution, which allows for consultative referendums, and the transfer or delegation of the state’s exclusive authority to authorize referendums under Article 149.1.32. The report also notes a shift in constitutional jurisprudence since 2017 regarding the possibility of a sub-state referendum.

Given the content of these reports, the reflections that follow seek to offer additional elements to assess the arguments presented to the Generalitat and, ultimately, to contribute to the debate on the referendum from a broader perspective that involves a greater number of stakeholders.

First. The decision to frame the reports’ proposals as the supposed final phase of the conflict is not neutral.

If we adhere to the arguments put forth in the first report and consider that the key issue in so-called plural or heterogeneous states is the effective protection of structural minorities (p. 28), the debate should then focus on analyzing the situation of these minorities (specifically, the Catalan minority) within Spain and the possible solutions to potential shortcomings or protection issues.

However, the reports place themselves at the later and, in principle, definitive stage of conflict resolution – namely, the holding of a referendum (or analogous mechanisms, as also considered in the first report) – as if an inevitable point of no return had already been reached. This approach implicitly adopts a specific narrative of the conflict, which is then presented to the public as objective data, when in reality, this narrative contains many elements that are open to debate. It silences the citizenry in making fundamental assessments, such as determining which parties are in conflict or what the nature of the conflict actually is – questions that are, moreover, interrelated.

The reports, particularly the second one, assume – without providing justification – that the conflicting parties are Catalonia and Spain, despite the fact that the conflict could also, or primarily, be understood as existing within Catalonia itself.

Similarly, it is possible to challenge the first report’s characterization of the conflict as a democratic one, since it could instead be interpreted as a nationalist one. This has practical implications, as it brings us back to the fundamental question of identifying the opposing demoi: on what criteria is decided who has the right to decide?

If we consider the conflict to be nationalist, the groups involved should be identified based on identity-related criteria. However, this raises a problem for the social sciences, as it requires working with a vague and ambiguous concept like that of nation or nationality. Furthermore, if the conflict were recognized as nationalist in nature, it would in turn raise the question – linked to the first report’s call to safeguard shared interests in political negotiations between the conflicting parties (p. 17) – of whether shared interests can form the basis for identity-based groups. Where is the dividing line between identity traits and shared interests in the constitution of political communities?

On the other hand, if we define the conflict as fundamentally democratic instead, as the first report assumes, then it should be possible to identify other groups within Catalonia that wish to remain outside the secessionist project. This could even mean that large areas, such as the Barcelona metropolitan region, would be left out of a potential new state. The first report addresses this issue (pp. 39 and 56), which undoubtedly represents a significant step forward. However, it does not grant this matter the necessary centrality, as it is mostly reduced to the case of Aran (a valley in the Pyrenees, in the northwesternmost part of Catalonia, bordering France and Aragon, where Aranese is an official language alongside Catalan and Spanish). This issue is not even raised in the second report, where the authors consistently refer to the conflict as one between Catalonia and the Spanish state.

The second report is explicitly constructed and justified on the idea of the political nature of the conflict (p. 12). However, it does not specify what exactly should be understood by this and why it should be considered an exceptional case in public law, which is designed precisely to establish rules for resolving conflicts that arise regularly in the political sphere. In a questionable exercise of logic the report’s authors attempt to prove the conflict’s political nature by citing statements and actions from certain political bodies (p. 14) – perhaps confusing the cause of this supposed nature with its effects. They also overlook the fact that such statements which recognize the political nature of the conflict have been made in the unmistakable context of post-electoral agreements to form a government.

In any case, within the report, the concept of a political conflict serves a specific purpose: it acts as a mechanism that allows the authors to circumvent any legal obstacle that arises in designing their proposed referendum. This places the report in an argumentative paradox that is impossible to reconcile: when its proposals align with legal norms or constitutional jurisprudence, this is used as an argument in their favor, selectively invoking even the most minor regulations that support them. But when the proposals do not align, the norms or jurisprudence are dismissed outright, with the claim that their weight is insignificant in the face of the political nature of the conflict (p. 30).

If, in reality, the second report is not referring to a political conflict but rather to a constitutional crisis, in which the existing legal framework has been clearly exceeded, then the authors should not make any effort to align their proposal with the current legal framework. They should simply state explicitly that they are advocating for a rather material constitutional change. In practice, the report constantly oscillates between these two perspectives, without acknowledging it.

The report’s authors also omit the fact that what is truly political is the decision to use a referendum as a tool to resolve the conflict, since, as recognized in legal doctrine, a referendum is neither a neutral nor an innocuous instrument.

Second. The reports rely on the extensive use of referendums in other political systems to legitimize the proposal of using one in Catalonia, but several observations can be made in response:

1. The first report (pp. 28-29) acknowledges that most liberal democracies are reluctant to use referendums, but it does not analyze the reasons they give for this reluctance. The report’s authors simply cite Quebec and Scotland as examples of overcoming such reluctance and present them as models to follow, without explaining why or, more specifically, why they are relevant in regard to Catalonia’s particular case.

2. The first report does not consider whether the core issue is not whether liberal democracies are more or less reluctant to use referendums for territorial conflicts, but rather how liberal democracies should address territorial conflicts when the primary conflict occurs within the community seeking secession.

3. The first report uses the fact that the European Union has used this mechanism of direct democracy (p. 27) as an argument in favor of referendums. However, it ignores the fact that the EU is not a state and that no self-determination referendums have ever taken place within it.

4. Neither report evaluates the potential preference for maintaining the status quo over secession in contexts where democracy and (additionally) self-governance already exist (p. 35 of the IEA report), nor do they attempt to identify the legal interests that might be protected by preserving the status quo, reducing everything to vague feelings of belonging or identity.

5. Both reports assume that the Spanish state is obliged to negotiate the holding of a referendum, even arguing that refusal would lead to unilateral actions (pp. 16, 19, and 71 of the CA report), thereby justifying the actions taken by Catalan political institutions during the procés.

6. Both reports consider the Venice Commission’s recommendation of participation and approval quorums in referendums with fundamental constitutional implications, such as secession. However, they argue that an approval quorum could undermine the principle of equal voting, as a minority could block the majority’s will (p. 70 of the CA report and p. 39 of the IEA report). They thus fail to acknowledge that this is inherent in any requirement for a qualified majority, given the need for greater consensus in decisions is deemed particularly important for the community.
7. The reports call for an objective and neutral information campaign as a prerequisite for holding the referendum (pp. 67-68 of the CA report and p. 39 of the IEA report). However, they do not consider the possibility of an earlier information campaign or a prior public deliberation on whether resolving this issue through a referendum is advisable, in order to inform the public about the implications of such a referendum and the decisions that public officials have already made before putting the matter to a vote.