|Ethnicity and Power in the Contemporary World (UNU, 1996, 298 pages)|
|12. Political autonomy and conflict resolution: The Basque case|
Having reviewed the main problems faced by the Spanish democratic system in resolving the Basque dispute, let us examine the response applied to them.
4.1 General characteristics
The Basque Country attained its Statute of Autonomy in 1979, after Spain's approval of its democratic Constitution a year earlier. The Statute represents a proposed political solution to the serious historical controversy which has significantly affected relations between the Basque Country and Spain, and has conditioned the development of the Spanish political system itself over the last two centuries.
From a legal standpoint, the Spanish constitutional text is quite open-ended, in that it refrains from defining the terms and scope of autonomy too rigidly. Such content was to be specified in each of the Statutes of Autonomy, with an overall constitutional framework defining the limits for the different provinces. This flexibility represents an obvious advantage from a political point of view, in so far as it has facilitated negotiations concerning the content of each Statute of Autonomy, particularly the Basque Statute, and has allowed negotiators greater leeway. At the same time, however, the flexibility leads to some imprecision when legally interpreting the statutory precepts.
The Basque Statute of Autonomy's text appears to be conditioned by these two factors. It reflects both a highly complex political controversy and the flexible nature of the constitutional norms regulating the autonomous State. This leads to several consequences.
The Basque Statute clearly pushes to the limit all possibilities provided by the Constitution. This tendency can be seen in the wording's emphasis on the nature of the Statute as a "pact" (e.g. in the Preliminary Title and Additional Resolution, the latter also sustained in the First Additional Resolution of the Constitution), and especially in delineating spheres of responsibility.
A second consequence, derived directly from the first, is the vagueness in some key precepts of the statutory text - a deliberate and conscious vagueness reflecting the conflicting and unclear Constitution-Statute relationship. The Statute's core objective is to provide a way out of a problematic and controversial situation, and for this reason it is highly indecisive and deliberately nebulous concerning the most problematic aspects. Certain issues were simply not dealt with, in the hope that they could be tackled later on, once the autonomous framework was under way. The very ambiguity of the constitutional text favours this lack of clarity and ultimately allows for the avoidance of discussion of these controversial issues. This vagueness affects not only the Constitution-Statute relationship but also the internal makeup of the Basque Autonomous Community itself and, to an even greater degree, the Autonomous Community/ Historical Territory relationship.
A third consequence is the legal imprecision of the statutory text. From a formal viewpoint, the Statute is a legally faulty document, and it repeatedly suffers from a lack of technical quality. Its imprecision reflects the Statute's own indefiniteness, which makes sense given the circumstances of its creation and discussion. It must be taken into account that the statutory text is the synthesis of a long and arduous negotiation process first among the Basque political forces and then between these and the central government.
Some additional causes ought to be added to this. It must not be forgotten that the Basque Statute was the first to be approved after the Constitution, which meant it lacked a frame of reference or models for comparison. One must also take into account the haste with which the statutory text was created and made official. This was principally due to the need to resolve speedily Basque political demands for autonomy.
Another point worth bearing in mind is that the Statute has a dynamic nature, with a clear potential for extension, for example to the historical territories.
4.2 The statute's fundamental aspects
In accordance with the power invested by article 2 of the Spanish Constitution, the Statute of Autonomy of the Basque Country defines, in its article, the Basque People or Euskal-Herria as a nationality. Contrary to appearances, the affirmation of nationality does not have legal effect. There are several reasons for this.
First, concerning the "plurinationality" of the Spanish State, the constitutional text limits itself to recognizing the existence of nationalities and regions, without ever legally defining the distinction between these two concepts. Furthermore, from a practical perspective, the distinction between nationalities and regions lacks real effect. It does not necessarily determine the institutional-legal structure of the Statutes of Autonomy, nor does it establish respective responsibilities. The adoption of one term over the other is up to the statute writing legislators. In fact, there have been cases where Autonomous Communities invested with full powers have not denominated themselves "nationalities" (for example, the Canary Islands).
From this legal-constitutional perspective, the expressions "nationality" or "region" are replaced by the term "Autonomous Community," applicable to each and every territory acceding to the economy. It represents a sociological definition lacking legal effects, although it does have important political connotations, especially in the Basque case. Indeed, the expression "nationality" is linked to the uniqueness, in terms of intensity as well as diffusion, of the Basque demand for a nation, which is reflected in the Additional Resolution of the Statute (discussed immediately below).
4.2.2 Historical rights
The Additional Resolution of the Statute of Autonomy of the Basque Country establishes that: the acceptance of the autonomy regime established in the present Statute does not entail a renunciation by the Basque People of the rights which, as such, could have corresponded to them by virtue of their history, rights which can be updated in accordance with what is established by legal ordinance.
This resolution is a programmatic Declaration with implicit reference to the First Additional Resolution of the Constitution. Similar to Navarre's autonomic norm, it has important legal consequences regarding the Basque Country-State relationship, as well as the internal organization of the Basque Autonomous Community itself.
As far as the Basque Country-State relationship is concerned, the resolution implies statutory acknowledgment of the connection between historical statutory rights and the current autonomy regime. Such an admission is not simply declarative, but rather has important material effects. Indeed, the Statute of Autonomy of the Basque Country boasts a qualitative uniqueness, as shown by its granting of significant and distinct powers, whose approval is directly based on the admission of historical rights.
This is clear in the case of the subjects which provoked the most arduous debates before agreements in the statutory project were reached; education (art. 16) and the autonomous police (art. 17). Both areas are explicitly sustained based on the Additional Resolution of the Spanish Constitution and historical statutory rights. The same thing occurs with respect to the Economic Contract (Art. 14).
The second group of consequences refers to the internal, institutional structure of the Basque Autonomous Community itself and, more concretely, to the organization of historical territories. The statutory recognition of such territories, as well as their legal-political institutionalization and the granting to these of substantial powers, are based on the cited recognition of historical rights.
4.2.3 Language and culture
Article 6.1 establishes that "Euskera, the Basque People's own language, is to share with Spanish the status of official language in the Basque Country. And all its inhabitants have the right to know and use both languages." In accordance with this precept, the Basque language, besides being official along with Spanish, is recognized as the Basque People's own language. The qualification of "own" implies the uniqueness of Euskera as the official language of the Basque Country, but its legal status as one of two official languages is of more importance. This entails, independently of its reality and weight as a social phenomenon, the admission of Euskera by the public powers as a normal means of communication, amongst themselves as well as among private subjects, with full legal validity and effects.
According to article 6.2, it falls to the Basque institutions to regulate the linguistic officially, to arbitrate and regulate the measures and means necessary to assure the knowledge of the languages, while taking into account that, in accordance with article 6.3, no one can be discriminated against on the grounds of language.
Finally, article 6.5 foresees that, with Euskera being the heritage of other Basque territories and communities, the Basque Country may ask the Spanish Government to draw up treaties or conventions establishing cultural relationships with these other countries where these territories or communities are located, in order to safeguard and foment Euskera. This allows for two alternatives: either Spain can sign treaties with other countries at the request of the Basque Autonomous Community, or the Basque Autonomous Community can itself engage in "transnational" activities. In the latter case, the community is empowered to reach beyond the strict State limits to cooperate with other regional bodies in the defence and development of Basque language and culture, but such activities do not constitute a strict manifestation of international law.
The Statute limits itself to establishing the basic design of linguistic policy. Its practical application and development are regulated by the Basic Law of Normalization of the Use of Euskera, passed by the Basque Parliament on 24 November 1982.
THE HISTORICAL TERRITORIES. Article 2 configures the Autonomous Community of the Basque Country as an aggregate of the provinces of Alava, Guipúzcoa, and Biscay, as well as Navarre, in case the latter should decide to be incorporated in accordance with the procedure established by the Constitution. Several aspects of article 2 are worth noting.
Firstly, the voluntary nature of the historical territories' participation in the configuration of the Autonomous Community of the Basque Country is significant. Such participation is not formulated as a factual reality, but rather as a right to take part, its voluntary character reflecting the precepts laid down by the constitutional act.
Secondly, the internal boundaries are defined by the provinces which historically constituted the Basque Country: this accords with traditional statutory agreements. In historical Basque agreements, as well as the current statutory text, the terms "province" or "historical territory" have a double meaning: as administrative entities serving to organize the State's administrative services (as such, they are comparable to the rest of the provinces); and as quasi-sovereign institutional autonomies, markedly political in nature (traits specific only to the Basque Community provinces).
Given the traditional self-governing capacity of historical territories, an internal organization of a federalist state has been designed. Within it, regional and provincial institutions and authorities exist side by side, giving rise to some important consequences.
Finally, there is a notable absence of even implicit reference to the townships (with the exception of the almost marginal one in article 8), in contrast to the great, historical importance given them in the previous statutory agreement period, as well as subsequently in the diverse waves of claims for autonomy.
THE SPECTFICITY OF NAVARRE. According to the volunteer principle, Navarre holds a generic right to inclusion in the Autonomous Community of the Basque Country. Certain specifications are given as to how its integration must come about. Its right is explicitly acknowledged in the Constitution (Transitory Resolution 4a), Statute of Autonomy of the Basque Country (article 2), and the Law of Improvement of the Statute-laws (Additional Resolution 2a).
When the Constitution was being written, Navarre decided not to be integrated into the Autonomous Community of the Basque Country, opting instead to constitute an individual Statutory Community. If, in the future, Navarre were to decide to incorporate itself into the Autonomous Community of the Basque Country, such an integration would have to take place in accordance with constitutional and statutory guidelines regulated in Transitory Resolution 4a of the Constitution, article 47-2a of the Statute of Autonomy of the Basque Country and Additional Resolution 2a of the Organic Law of Reintegration and Improvement of the Navarre Statutory Regime, respectively.
4.2.5 Material competencies
Certain subjects are covered under the First Additional Resolution of the Constitution, denoting the statute writers' efforts to force the constitutional guidelines to the limit in such matters. In the remaining issues concerning competencies, an ample attribution of competencies to the Basque Country is similarly envisaged. This is shown by the 39 subjects considered to fall exclusively under the authority of the Autonomous Community, thus expressing the capacity for real self-governance.
This same extensiveness led to a substantial part of the subject matter reserved for the State being qualified in the Constitution with phrases such as "not to the detriment of...," "in the framework...," "in accordance with...," etc. This solution has been a constant source of conflict because of its obstinate attribution to the State of essential, ruling authority.
Apart from those already mentioned (police, education), a series of additional, specific competencies exist in the Statute. They correspond to matters of undeniable significance, in which a certain degree of overlap with the State is articulated - for example, health care and communications. The quantitative and qualitative level of competence is certainly extensive, even comparable to that of a state within a federal system. But the vagueness in the attribution of some applications has led to constant recourse to the Constitutional Court in order to resolve the conflicts arising.
Citizenship is regulated by article 7 of the Statute of Autonomy of the Basque Country, which in turn is closely linked to article 139 of the Spanish Constitution. According to the cited constitutional precept, all Spaniards have the same rights and obligations in any part of the State territory. This implies the exclusion of the possibility of a specific Basque citizenship, as differentiated from the rest of the Spaniards, which could affect the social, economic, administrative, or civil order (excepting, in this latter case, those indicated in articles 149.01.18 of the Spanish Constitution and 10.5 of the Statute of Autonomy of the Basque Country).
Therefore, the political condition of being Basque alluded to in article 7 refers exclusively to exercising political rights, and solely within the Statute's framework. Three cases are included: citizens with administrative residence in the territory of the Autonomous Community; residents abroad, if their last administrative residence was in the Basque Country and if they retain their Spanish nationality; and descendants of residents abroad, if they make an explicit request and keep their Spanish nationality.
4.2. 7 Economic Contracts
The Economic Contracts provisions constitute a fundamental aspect of the Statute of Autonomy of the Basque Country. They are an institution without equivalent in any other autonomous community except Navarre. They constitute the most obvious expression of the acknowledgment and application of Basque historical rights.
The Economic Contracts involve a unique system of regulation of tax relations between the State and the Basque Country. Their statutory basis is found in article 40 of the Statute of Autonomy, which establishes that the Basque Country will have its own Autonomous Tax Department to exercise and finance its competencies adequately. Its development is regulated by Law 12/81, by which the Economic Contract with the Autonomous Community is approved (modified by the Law of 2 August 1985, by which the Economic Contract is adapted to the establishment of IVA (value added tax), which will remain in force until 31 December 2001.
The contract system implies that the Provincial Governments of the Historical Territories can carry out the collection, management, liquidation and inspection of all taxes, except those related to customs and those collected by fiscal monopolies.
Distribution of the money paid in is established in the following way. First, the Provincial Governments add the amounts determined by a Basque parliamentary law to the money paid in to the general Basque Tax Department. A global quota is established, with the Basque Country's share paid to the State as a "contribution towards all State charges not assumed by the Basque Autonomous Community."
Every five years, the methodology for designating the quota is determined, and rules for the following five years are established. This is done through a law voted on by the General Legislative Assembly of Spain after previous agreement by the Combined Commission of the Quota. For its part, the Commission must annually update the quota. The Combined Commission of the Quota is made up of one representative from each of the Provincial Governments, representatives from the Basque Government, and an equal number of representatives from the State Administration.