US DOJ Attorney Writes Report on Secession, Sovereignty, and EU

VilaWeb published news that “the US Department of Justice now has a report on Catalonia on its desk”. The report in question was written by Christopher K. Connolly, an Assistant US Attorney with the Southern District of New York of the US Department of Justice. In a footnote, he stresses that the “views expressed in this article are mine alone, and do not necessarily reflect the view of the United States Government or the Department of Justice.” I unfortunately missed this footnote at first, so my first tweets erroneously attributed the report to the US DOJ itself. My apologies.

The Connolly Report is 68 pages long and can be found on the
Social Science Research Network.

I do recommend reading the report in its entirety. Here are my thoughts:

Of course, one of the most important aspects of the report is its very existence. It would seem to indicate that the United States Government is taking the secessionist movements in Europe—particularly that of Scotland, Catalonia, and Flanders—very seriously. Even if the US Department of Justice didn't sign the report, the fact that one of its lawyers did is pretty significant.

Connolly's summary of the events leading up to Catalonia's current political situation is accurate and balanced, if a bit cold. He doesn't explain people's frustration with current dependence on Spain and its power to control Catalonia's culture, language, and finances.

The analysis of whether secession or self-determination are consistent with international law is curious. After some historical background, Connolly concludes that paradoxically,

Although international law recognizes a right to self-determination, such a right, if applied broadly to offer the possibility of statehood to the world’s myriad potential claimants, would result in “the radical undermining of State sovereignty and a dramatic reshaping of the present framework of the world community.” 

and then further

But international law is, first and foremost, a set of rules made by and for states, and states unsurprisingly have been reluctant to condone a  right that would justify their own dismemberment

But I don't think you can have it both ways. Can you claim the benefits of supporting self-determination (“we are broadminded and democratic”) without actually supporting self-determination? I think not.

Connolly then goes on to analyze self-determination in the EU context, rightly pointing out that

The EU, however, changes the calculus for advanced regions such as Catalonia: following independence, if EU membership were secured, Catalans would still enjoy access to Spanish markets and the markets of other EU member states.

The question of EU membership is a key one, and Connolly argues that while it is not guaranteed,

To disentangle these stateless nations from the EU system would be highly problematic and arguably not worth the effort especially since they would almost certainly qualify for membership as independent states.

There was a definite undertone of big-country-unease throughout the report. For example, Connolly cautions against offering intermediate solutions, saying that the British government runs "the risk that many Scottish voters might instead opt for independence." As if it were a bad thing.

He also lauds the "civic" nature of the movements in Flanders, Scotland, and Catalonia, but worries that

Yet the success of Flemish, Scottish, or Catalan nationalism could embolden more divisive nationalist forces elsewhere.

Frankly, it frustrates me that somehow the non-ethnic, thoroughly inclusive (as Connolly himself admits) Flemish, Scottish, and Catalans should be held responsible for xenophobia in Europe.

Connolly makes his position (and home country) pretty clear when he states that

Some states are more sovereign than others by virtue of their size and strength, they are capable of acting with few impediments on the world stage, whereas smaller and weaker states often find their exercise of sovereignty constrained. [emphasis mine]

In the end, however, Connolly suggests three ways to “approach the challenges posed by substate nationalism”

1. States “faced with separatist movements should allow for referendums to gauge support for separation”. Spain has adamantly refused such a referendum up to now. Let's hope they're listening.

2. The EU "should consider expanding the formal opportunities for sub-state
regions to participate in EU policymaking." For me, too little too late. I don't think Catalonia, at least, is willing to wait.

3. The “EU should clarify its position on how it would deal with secession from
a member state.” Yes, I agree.