The aim of this paper is to trace the position of the EU constitutional order of States with regard to the right of secession of sub-state entities. The thesis of the paper is that although the EU legal order does not recognise a universal and unilateral right of secession to them, its position is more sophisticated than just wishing them ‘a Bon Voyage in their separatist identity’ as JHH Weiler has suggested. In fact the paper would show that the EU legal order is respecting the intricacies of international law with regard to the right of self-determination. Accordingly, the Union is rejecting the right of secession that has been triggered by acts of aggression like in the case of Cyprus. It recognises the right of internal self-determination as exercised through minority rights and legislative autonomy in accordance with Article 4(2) TEU. And it is willing to accommodate consensual and democratic secession in accordance with Article 49 TEU.
In their selective iconoclasm, those who have moved beyond a sovereign people have also neglected the unwritten scripts of constitutional change that accompany the vocabulary of popular sovereignty. Those are the scripts that Catalan sovereigntists, to their disappointment, tried to perform in an attempt to impress relevant spectators—the external actors for whom they believed had requisite goodwill and capacity to intensify the power of the Catalan people's constituent power. To affirm the ideals of popular sovereignty and self-determination in the context of secessionist crises, such as the one in Spain is to quietly presume the legitimacy of those scripts. In order critically reflect on those ideals it is high time we begin more openly scrutinizing the scripts that make them practically meaningful—and the discursive strategies they engender—beyond the prevailing conceptual preoccupations of modern and contemporary constitutional theory.
The paper analyses the struggles of the Catalan Government to organise a referendum on secession and the Constitutional framework invoked by the Spanish central authorities to prohibit it. On then one hand, it shows that the repression of secessionist referendums within the Spanish Constitutional framework triggers several problematic questions concerning the role of constitutional supremacy in handling with subnational secessionist challenges developed under a pacific and democratic framework. On the other hand, the paper describes the political, historical and legal circumstances surrounding the Spanish central authorities’ actions in order to explain Spain's constitutional response to the Catalan challenge. The paper argues that the prohibition of the Catalan independence referendum initiatives cripple the basic pillars of the Spanish liberal democracy designed under the 1978 Spanish Constitution.