Dr. Frederik Dhondt , Postdoctoral Research Fellow of the Research Foundation Flanders (FWO), Legal History Institute (UGent)
See Dutch version below
The Catalan and Scottish referenda have been addressed previously on this blog, at the occasion of Prof. Tierney (Edinburgh)’s lecture in Ghent. As a legal historian, my remarks are situated in the margin of a debate between specialists of present-day public law. Nevertheless, historical comparison can serve to illustrate continuities and recurrences, as well as obvious differences. Not only constitutional documents (as emphasized by Professor Tierney), but also international de facto and de jure constraints limit the right of self-determination. If the efficiency of the former category is questionable, the influence of the European State System is undeniable.
(Image: Philip V of Spain. Source: Wikimedia Commons)
It is no coincidence that Catalonia’s questionable referendum on independence was held on 9 November last. Commemorating 300 years of incorporation to Spain, the regional authorities echoed the outcome of the War of the Spanish Succession (1701-1713/1714), a major European –and even global- conflict. Among the durable remains of this period, we can cite the British conquest of Gibraltar (1705) and the Union of Scotland and England (1707), as well as the instauration of a French, Bourbon, Prince as King of Spain (1701). Ironically, the Spanish “Borbón y Borbón” survived their French counterparts as reigning monarchs. Philip V of Spain (1683-1746) was the second grandson of Louis XIV (1638-1715). The installation of Philip V as King was the result of a diplomatic compromise, following more than ten years of bloodshed, with an estimate million casualties. Any modification to the final territorial outcome could not but trigger a new pan-European war.
Catalans deplore the incorporation of their region into the Spanish monarchy. This might seem odd. Catalonia, an amalgam of territories around the County of Barcelona, had been a part of the crown of Aragon since the middle ages, itself united in a personal union with Castille (the kingdom around Burgos and Madrid) from the end of the fifteenth century. In 1707, the Franco-Spanish army won a crushing victory at Almanza. Philip V decided to exploit this success and extend the status of his Castillian subjects to those in Aragon, in an attempt to organize Spain as a modern, centralized, French-style state (“Nueva Planta” decrees). To present-day lawyers, this seems a rational application of the principle of equality. Ancien Régime societies, however, preferred privileges (being different, being an exception) to being equal. Philip abolished cherished old and well-established fueros: local customs, or –in a present-day view- fundamental rights and freedoms.
(Image: Europe in 1700, Source: Wikimedia Commons)
The Estates of Catalonia (the local representative institutions) had allied themselves with Philip’s enemies. The King’s opponent, archduke Charles of Austria (1685-1740) had held his court in Barcelona as “Charles III, King of Spain”. Catalonia was still under Austrian control when European powers signed peace. The international recognition of Philip V as King of Spain had been definitively acquired at the Utrecht peace congress (1712-1713). It was too late for the Catalans. In exchange for an Austrian promise to evacuate Catalonia, Philip promised in a bilateral treaty with Britain to uphold local privileges.
The Catalans, however, did not trust their new monarch and declared war on him when the Austrians left. Catalan fierce resistance was broken by arms. The Estates lost everything. Barcelona was taken by a Franco-Spanish army on 11 September 1714. Philip abolished local legislation. Yet, in Aragon, Valencia as well as Catalonia, the Spanish state applied a system of subsidiarity. Local norms would still be upheld where Castilian law had not been explicitly imposed. In vast areas of procedure, penal, civil and commercial law, pre-existing norms remained. Legal pluralism, coexistence of several legal orders and not outright submission, conformable to the European tradition.
(Image: Louis XIV accepts the will of Charles II of Spain and proclaims his grandson Philip as King; “Messieurs, il n’y a plus de Pyrénées ! (19th century; Source: Wikimedia Commons)
Archduke Charles, Philip V’s disgruntled challenger, lost the war when he was elected Holy Roman Emperor in 1711. This might seem surprising, but it is not. Austria, Britain and the equivalent of the present-day Netherlands had teamed up against what seemed a claim to French hegemony. Charles II of Habsburg (1661-1700), the last direct male descendant of Charles V (1500-1558), had bequeathed his throne on Philip of Anjou by testament. Louis XIV of France, the latter’s grandfather, had sent his armies to the domains of the composite Spanish monarchy (cf. map). This meant that France would indirectly control present-day Belgium, most of Italy, Spain and –last but certainly not least- the colonies in Asia and America, synonyms for piles of silver and gold. The allies advocated a more reasonable partition of the inheritance.
However, when the Austrian candidate was elected Emperor –following his older brother, Emperor Joseph I (1673-1711)’s decease-, this reasoning was not valid any more. Austria now constituted the threat to the European Balance (cf. map). Charles was already certain to control Naples, Milan, Sardinia and the Spanish Netherlands (present-day Belgium, excluding Liège). Yet, all of this had been arranged with the prospect that Joseph I would have continued the Habsburg dynasty in Vienna. Britain deserted the alliance against France, recognized Philip V, and signed bilateral preliminaries of peace within the same year. Charles’ anger, sadness and wrath were immensurable. He decided to fight on for another year after the Peace of Utrecht (11 April 1713), deploring his “loss” of Spain (in reality: a non-satisfied pretention) and distributing positions at court to fellow Spanish supporters. It took until 1725 before Philip V and Charles VI signed a formal bilateral treaty of peace.
Catalonia’s legal assimilation to Castille was only possible thanks to (French) military success. Yet, legal rules in public law often are the consequence of power situations, illegal themselves at the moment they occur. Charles de Gaulle’s creation of the French Fifth Republic is a classic example. Furthermore, questions of sovereignty and statehood are international in nature, as well as internal. Belgium’s independence process (1830-1839) is another illustration: our country’s very existence could not be conceived outside its traditional role as an object of the European state system.
– Albareda Salvadó, Joaquim. "La Catalogne et Philippe V d'Espagne dans la guerre de Succession d'Espagne: des espérances de 1705 à la perte des libertés de 1714." Revue d'histoire diplomatique CXXI, no. 3 (2007): 231-48.
– Álvarez-Ossorio, Antonio, Bernardo J. García García, and Virginia León Sanz, eds. La pérdida de Europa. La guerra de Sucesión por la Monarquía de España. Madrid: Fundación Carlos de Amberes, 2007.
– Bély, Lucien, ed. La présence des Bourbons en Europe, XVIe-XXIe siècle. Paris: PUF, 2003.
– Dhondt, Frederik. "From Contract to Treaty: the Legal Transformation of the Spanish Succession, 1659-1713." Journal of the History of International Law – Revue d'histoire du droit international XIII, no. 2 (2011): 347-75.
– Frey, L., and M. Frey, eds. The treaties of the War of the Spanish Succession : an historical and critical dictionary. Westport (Conn.): Greenwood Press, 1995.
– Lynn, John A. The wars of Louis XIV, 1667-1714. Modern Wars in Perspective. Longman: London, 1999.