THE HONOURABLE STÉPHANE DION ILLUSTRATES THE MERITS OF
REQUIREMENTS FOR LEGALITY AND CLARITY THROUGH
EXAMPLES FROM NORTHERN EUROPE

REYKJAVIK, ICELAND, August 5, 1999 – Speaking to the members of the Nordic Association for Canadian Studies, the Honourable Stéphane Dion, President of the Privy Council and Minister of Intergovernmental Affairs, demonstrated the merits of requirements for legality and clarity in referendums on secession, citing experiences from countries in Northern Europe.

The Minister first presented the Government of Canada's position on secession. He noted that, unlike many of the most democratic countries which prohibit secession in their Constitution, including some countries in Northern Europe, Canada has adopted an approach that is based on the voluntary adhesion of its provinces.

Mr. Dion pointed out, however, that the Government of Canada believes that an attempt at secession should be negotiated within an established legal framework, and not undertaken unilaterally by a provincial government. He noted that the Supreme Court of Canada, in its opinion rendered on August 20, 1998, set out the two major principles of legality and clarity: "The nine justices of the Supreme Court, three of whom come from Quebec, unanimously confirmed that a unilateral secession has no legal basis, neither in Canadian law nor in international law. The Court added that the obligation to undertake negotiations on secession does not exist unless Quebecers clearly give their support to secession, by means of a clear majority on a clear question about secession."

Mr. Dion then examined cases of secession in Northern European countries, which he believes illustrate the merits of the principles of legality and clarity set out by the Supreme Court of Canada. Indeed, he noted that many of those cases were placed before the Supreme Court when the reference was heard.

The Minister explained that the principle of legality was well illustrated by the case of the Aaland Islands. In the early 1920s, the Islands sought to secede from Finland, despite Finland's opposition. The issue was referred to the League of Nations, which appointed two commissions. The commissions ruled that Finland's sovereignty over the Islands was incontestable, that the Islands had no right to secession, whether by plebiscite or otherwise, and that the right to self-determination should not be confused with the right to secession. The Aaland Islands are still a part of Finland.

The Minister also stressed that, in addition to legality, state practice must also be considered. He noted that the international community has shown itself extremely reluctant to recognize unilateral secessions outside the colonial context. To illustrate this deep aversion of the international community to unilateral secessions, Mr. Dion cited the case of the Baltic republics, focussing in particular on Lithuania: "Before its independence was recognized, Lithuania had to face military action by the Soviet Union, hold a referendum which clearly confirmed support for independence, obtain the recognition of the President of Russia, Boris Yeltsin, and wait until a failed coup attempt in the Soviet Union confirmed the weakness of the Soviet government vis-a- vis Yeltsin."

The Minister then examined the requirement for clarity in a referendum: "For a referendum to be able to lead to secession, it must confirm the existence of a consensus in favour of secession." The cases of Norway, which separated from Sweden in 1905; Iceland, which ended its union with Denmark in 1944; the Baltic republics, which obtained their independence from the Soviet Union in the early 1990s; and the Faroe Islands, which tried to separate from Denmark in 1946, all demonstrate this need for clarity. With the exception of the Faroe Islands, secession was effected in all these cases following a referendum on a clear question; moreover, the percentage of valid votes cast in favour of secession was between 74% and 99%. The Faroe Islands' attempt at secession failed: the referendum question was clear, but only 50.72% of the valid votes cast indicated support for independence. The unilateral declaration of independence that followed that referendum was not accepted by the Government of Denmark, and the Islands are still a part of Denmark.

After stating that a vague question such as the one posed in the 1995 referendum does not make it possible to determine whether Quebecers really want to effect secession, and that it would be irresponsible to enter into negotiations on secession on the basis of a slim majority, the Minister concluded by saying that we must stop wasting our energy on referendum after referendum. Together, Quebecers and other Canadians must devote their efforts to the economic, social, cultural and environmental issues on which their quality of life depends. Among those issues, Mr. Dion highlighted the future of the North, this great ecological barometer of our planet, an issue that Canada and the other Northern countries share.

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