By Oriol Valentí i Vidal*
Spain is facing its most profound constitutional crisis since democracy was restored in 1978. After years of escalating political conflict, the Catalan government announced it would organize an independence referendum on October 1, 2017, an outcome that the Spanish government vowed to block.
This article represents, to the best of the author’s knowledge, the first scholarly examination to date from a negotiation theory perspective of the events that hindered political dialogue between both governments regarding the organization of the secession vote. It applies Robert H. Mnookin’s insights on internal conflicts to identify the apparent paradox that characterized this conflict: while it was arguably in the best interest of most Catalans and Spaniards to know the nature and extent of the political relationship that Catalonia desired with Spain, their governments were nevertheless unable to negotiate the terms and conditions of a legal, mutually agreed upon referendum to achieve this result.
This article will argue that one possible explanation for this paradox lies in the “behind-the-table” conflicts on both sides. For Catalan secessionists, this conflict related to the role that unilateralism had to play, if any, in the negotiations with Spain to organize an official referendum for independence. For those against it, most notably the Spanish political parties, the pressing internal conflict concerned the scope of the negotiations that had to be conducted with the Catalan government. These internal “behind-the-table” conflicts blocked an “across-the-table” agreement, leading to a deadlock in negotiations.
This article hopes to contribute to the academic conversation around the barriers to progress in high-stake negotiations, and it suggests that the failure to negotiate an independence referendum for Catalonia reveals the limits of unilateral action in the context of a supranational region like the European Union, the dynamics in negotiations where there is a sharp power imbalance between the parties, the tensions between democratic legitimacy and the rule of law, and the risks of path dependency for negotiated agreements.
*Attorney; Lecturer in Law, Barcelona School of Management (Universitat Pompeu Fabra) as of February 2018. LL.M. ‘17, Harvard Law School; B.B.A. ‘13 and LL.B. ‘11, Universitat Pompeu Fabra; Diploma in Legal Studies ‘10, University of Oxford.