Polls are closing on the Iraqi Kudirstan referendum and Catalonia is about to hold its own vote to determine its future: whether to secede from Iraq and Spain and join the club of sovereign, independent states, or else to maintain their current status as autonomous regions. One may immediately notice the vast differences separating the two cases, too many to be listed here exhaustively: there is no Catalonian Halabja; Kurdistan would be bordering with Turkey, Iran and Iraq and not with Spain and France; the majority of Kurds would live outside what is now northeast Iraq, while most of the Catalans already reside in Catalonia; and one of the wealthiest regions of Europe features a diversified and thriving economy, unlike the hopeful plans of Erbil to build a viable and prosperous one without falling in the pitfalls of rentierism, as it has already partially happened.
However, these important considerations aside, the real matter of contention is the arguments advanced, on the one hand, by the would-be separatist regions and, on the other, by their respective central governments. Both Madrid and Baghdad have immediately and in rather stark terms rejected the very proposition of a popular referendum. They claim it is unconstitutional. And reading their constitutions, they are right. Provisions for autonomy are not provisions for independence. At the same time, Catalans and Kurds, holding up the banner of popular will and self-determination (essential tenets of democratic systems, to which both Baghdad and Madrid pay lip-service, albeit to different degrees), are right too. We may think therefore of a confrontation between two principles–--legality and legitimacy–--which leaves no easy answer. It is a dilemma.
The state is upholding legal norms: abstracting from the specific cases of Iraq and Spain, constitutions are the ultimate arbiter of domestic politics, the founding documents that set the rules of the game. This is true for both democratic and non-democratic polities, and it is true together with, and not despite, the other ways in which polities work, outside and around such legal frameworks. Constitutions set hard and fast rules in order to reduce ineluctable volatility in day-to-day politics, the rush of popular passions, the maneuverings of devious politicians, the shockwaves of internal and international earthquakes. Only a handful of states has no such founding document (Israel and the UK, for examples). Without slipping too much into functionalist fallacies, there is a reason as to why that is the case.
Having said this, self-determination and popular will are powerful norms as much as constitutional legality. Make no mistake, this is true of both democratic and non-democratic regimes. There is no longer a country which shuns the democratic, popular based legitimacy of its rule (as is ironically the case, the more reminders of this "legitimacy," usually the state is less democratic----the Democratic Republic of the Congo and the Democratic People’s Republic of Korea suffice as examples). The constitution itself is the expression of this norm: the people come together and set the rules of the game.
"History is replenished with episodes in which perfectly legal procedures conjured up the most illegitimate of actions. Illustrated bluntly enough by the election of Adolf Hitler, which legalized, but did not legitimize, his rule and policies."
At this juncture, in the case of functioning liberal democracies (such as Spain) or hybrid regimes in transition (such as Iraq), the conflict between these two norms–--the legality of the constitution and the legitimacy of self-determination----collide under the larger rubric of "democracy" in the dramas we are witnessing. Does legality come first, as the constitution supersedes popular will while being an expression of such will? Otherwise, why have a constitution in the first place, and not just a string of laws and decrees? Or instead, does legitimacy come first with popular will preceding and can superseding the constitution, which is important, but yet ultimately dependent upon the former?
Against bursts of indignation against the notion that popular will may be constrained by legal frameworks we should oppose not an unqualified defense of self-determination as a tool to solve all the evils caused by greedy and oppressive central governments. Rather, we should think about good constitutions, as they are, evidently, not all equal in efficacy at managing problems and appropriateness to domestic circumstances. Against vehement protests against instability, fractionalization (even Balkanization) and ripple effects that too loose a deployment of the principle of self-determination would entail, we ought to remind that people’s right to express their collective identity is unalienable. History is replenished with episodes in which perfectly legal procedures conjured up the most illegitimate of actions. Illustrated bluntly enough by the election of Adolf Hitler, which legalized, but did not legitimize, his rule and policies.
There are two further corollaries that should lead us out of the forest and to the trees. First, the issue of Balkanization is real. The national principle to draw up state boundaries is a cornerstone of modern nationalist doctrine, but it is a principle that immediately reveals its contradictions when we consider the highly (while not absolute) constructed nature of national identities. Identity-claims can advance the partitioning of a territory, to the point that the viability of the new nation-state (in terms of economy, political clout, security, etc.) is dubious. The gains of a more cohesive collectivity may be offset by the highly constrained nature of the new political unit, further generating new challenges, perhaps no less severe than the ones just overcome by secession.
Second, let us consider the remonstrations of the Spanish government, which claimed that if any such referendum should be held, it would need to include Spain as a whole, as it would decide on the fate of the country as such. While at face value plausible, at deeper scrutiny this proposition shows its utter denial of self-determination: should the French have voted as well in the case of Algeria, a land they regarded as their own----as France----but the Algerians whom they fought did not? It is the Kurds and the Catalans who must decide whether they are Kurds and Catalans or Iraqi and Spanish, and only them.
What is the way out of this conundrum? The real issue seems to be the unwillingness to think about new and different frameworks to organize our collectivities. Whatever discussed so far makes explicit or implicit reference to an idea of the state as the fundamental and ultimate unit of collective political life. In fact, we are talking about independence and secession from a (old) state and independence for a (new) state. This iron cage of modern politics, the Westphalian architecture of our current world, presents us with the dilemma I have just outlined, offering no way out.
A recent essay published by Feltrinelli, "Un idea elvetica di liberta" (by Carlo Lottieri, 2017), offers Switzerland as an interesting natural experiment or, if you will, a white board to think about a loose confederal system. In such a system, national identity is multiple and varied, not exclusivist; popular participation is enhanced by frequent referenda on specific policies; the constitution envisages a highly de-centralized system, where the Cantons work more as neighbors than provinces dependent on a central government; there is no one head of state, but a council of seven.
"Let these episodes serve as a powerful and compelling reminder that we are in dire need of new, creative institutional arrangements, where democratic politics may leave contradictions behind and open up new vistas for our collective life."
What is the lesson here? Isn’t Switzerland still a Westphalian state, where we can still detect a thing as "Swiss nationality?" Indeed, but my intent in summoning the Swiss case is to show how one can release some of the hard and fast constraints of the state-system and move in a different direction. Furthermore, lessons in the development of alternative, confederal bases to organize large communities and implement efficient forms of governance have not to be found only in the heart of Europe, a well-known and recurring problem. Sophisticated democratic confederations existed amongst native populations of North America. The Rojava experiment in Syria, with all its shortcomings, may be another instance.
Maybe it isn't possible to implement more daring solutions in the case of Catalonia and Iraqi Kurdistan. It is likely that both referenda will result in votes to secede from Madrid and Baghdad; it is likely that they will be rejected; and it is likely that Madrid may eventually have to find a negotiated agreement with Barcelona, while Erbil will confront an uncompromising central Iraqi government. Escalations are unfortunately to be expected. All this will be in the news.
Let these episodes serve as a powerful and compelling reminder that we are in dire need of new, creative institutional arrangements, where democratic politics may leave contradictions behind and open up new vistas for our collective life.
Massimo Ramaioli is an Assistant Professor in Social Development and Policy at Habib University in Karachi, Pakistan.