Senior Lecturer in Public International Law, Universitat Autònoma de Barcelona
The Generalitat of Catalonia (the autonomous regional government) current external action, one of the facets of which is to carry out agreements with foreign entities, is often far from being done in good faith, this being understood by respect for citizens (all of them), by institutional loyalty and by acting in conformity with the agreement, without hiding ulterior motives. In recent years, some exterior action has hidden other intentions, not always concealed, aimed at ensuring that Catalonia, through these actions, is seen, little by little, as a country, subject to international law, and considered this way by both the international community and the citizens of that region.
The use of the current legal framework, in order to distort it and obtain their goal, is evidence for which the Generalitat of Catalonia has no competition. The Memorandum of Understanding signed with California in April 2015 is an example of this trend. It is an international, non-normative, agreement, the object of which is to collaborate with California in diverse fields: economic, cultural and environmental protection among others.
The agreement, which is written in English and Catalan, displays differences in the two version, in the title itself: Memoràndum d’Entesa entre el Govern de Catalunya i el Govern de Califòrnia (EUA)///Memorandum of Understanding between The State of California (USA) and Catalonia (Spain).
Therefore, the Law of Treaties lays out, for non-binding international legal agreements, that the reference to the Kingdom of Spain be included alongside the reference to the signatory. As can be appreciated, in the Catalan version, the parenthesis where it is stated that Catalonia forms part of Spain disappears, though it does not in the English one. Such an omission could have been corrected when it was published in the Catalonia State Bulletin, on 19 May 2015, but this did not happen. What’s more, neither in the title nor in the final stamp placed by the Secretary of Foreign Affairs on behalf of the Catalonian Government does there appear any mention to the Kingdom of Spain, to Spain or to anything else.
Secondly, in the Catalan and Spanish versions of the agreement there are paragraphs which don’t say the same thing. The problem lies in the fact that each party considers both languages authentic, which is to say, it is presumed that both texts say the same thing and have the same sense.
Specifically, consider the following paragraph:
“Treballar conjuntament amb altres governs nacionals i subestatals per coordinar les accions en la lluita contra el canvi climàtic, en particular fer lobby per a l’adopció d’un acord internacional ambiciós sobre el canvi climàtic el 2015 que inclogui compromisos multinivell per a les autoritats públiques”
“To work cooperatively with other subnational and national governments to coordinate and combine our climate change efforts where appropriate, in particular to press for an ambitious international agreement on climate change in 2015 that includes meaningful commitments at the subnational, national and international levels”.
As can be seen, the Catalan version alludes to multi-level commitments in which the competencies and the level on which Catalonia should be situated, is left more ambiguous. On the other hand, the English version delimits more, and distinguishes the different levels; subnational, national and international. Therefore, following the English version, it is easier to understand that both California and Catalonia are entities that are part of States, and as such, both would be in the subnational category.
The Catalan text suggests that Catalonia is a national government, as opposed to the English version
This final point is reinforced from the start of the paragraph that states, in the Catalan version, “To work cooperatively with other national and subnational governments”, thus suggesting that Catalonia is a national government that can network with other national governments, and also, with other subnational government. Comparatively, the English version begins the other way round, “with other subnational and national governments”, mentioning, in the first place the subnational governments and thus suggesting in a clearer manner that the signatories consider themselves as such, and not as national governments (or States).
In the Catalonia State Bulletin, only the Catalan version (and its translation into Spanish) are published. In fact, and according to the Law of Treaties, there is no obligation to publish these agreements in a state bulletin, which there is in the case of international treaties. Perhaps the state legislator has considered that the obligation to publish non-binding international agreements did not exist, given that they are mere political commitments that do not constitute international obligations, nor are they governed by international law, and as such, it is sufficient to include them in an administrative register.
However, the mist that envelops the celebration of non-binding international agreements favours opacity and, above all, the lack of accountability from the signatories. Despite the fact that they are political commitments, they generate expenses covered by the public treasury, such as travels and expenses for the signings abroad and can generate financial obligations for the signatories. In addition, they project an image of Catalonia which should be known by the citizenry.
Both the Law of Treaties and the Catalan Law of External Action place transparency among the guiding principles that govern this matter, so I see no impediment to the projects for non-binding agreements, from when they are sent to the Ministry of Foreign Affairs (MAEC, in Spanish), for the purposes of information, being also published on-line in order to ensure that citizens are aware of their existence. In addition, the comments that MAEC would make on them, as well as the response of the autonomic executive, should also be published on-line. In doing so, the mistrust towards the MAEC or the autonomous executive would be reduced, given that any interested citizen would be able to access the arguments of one or another on the signing of an agreement of these characteristics.
In this sense, I ask myself what would have happened if public opinion had had knowledge of this agreement, before it was signed, in which the mention of Spain is lost in the Catalan version, in which the English and Catalan version do not quite say the same thing (I am not entirely sure the other party has realised this) and the celebration of which has included a controversial trip of the Catalonian President, on which no explanation has been given about who he went to see and how much it has cost in economic and political terms. This, would be termed in bad faith.